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1,700	https://www.mspb.gov/decisions/nonprecedential/Strand_Deborah_G_AT-0752-20-0625-I-2__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEBORAH GUERINGER STRAND, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-20-0625-I-2 DATE: April 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tricia Myers , Portland, Oregon, for the appellant. Patrick Neil , 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 dismissed her appeal of an alleged constructive removal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant reargues the merits of her claim and alleges that there were “objectivity issues” in the proceedings below. Petition for Review File, Tab 1 at 4. Among other things, she states that the administrative judge was “looking at one side”; that several of her statements, not specified, were “written out of context”; that she was not allowed to ask questions at certain points of the hearing, and was told that she “had [her] chance”; and that the administrative judge and agency attorney became “defensive in tone and posture” when she was trying to make a point. 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). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). Here, we find that the appellant’s vague and conclusory allegations of bias do not provide a sufficient basis for disqualification. See Lee v. U.S.2 Postal Service, 48 M.S.P.R. 274, 281 (1991). The appellant’s general disagreement with the administrative judge’s findings also does not provide a basis for further review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 5 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Strand_Deborah_G_AT-0752-20-0625-I-2__Final_Order.pdf	2024-04-23	DEBORAH GUERINGER STRAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-20-0625-I-2, April 23, 2024	AT-0752-20-0625-I-2	NP
1,701	https://www.mspb.gov/decisions/nonprecedential/Smith_Janel_N_CH-1221-22-0137-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JANEL N. SMITH, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER CH-1221-22-0137-W-1 DATE: April 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard R. Renner , Esquire, Silver Spring, Maryland, for the appellant. Elaine Fitch , Esquire, Washington, D.C., for the appellant. Jennifer A. Weger , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is 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 is employed as a GS-9 Investigative Analyst at the agency’s Kansas City Field Division in Fairview Heights, Illinois. Initial Appeal File (IAF), Tab 9 at 4. On January 17, 2022, the appellant filed the instant IRA appeal alleging that the agency failed to provide her training and select her for a new position in retaliation for her protected whistleblowing disclosures and activities, and she requested a hearing on her appeal. IAF, Tab 1 at 2, 5, 8, Tab 9 at 6. With her initial appeal, the appellant provided a copy of a Board appeal rights letter from the Office of Special Counsel (OSC) dated November 19, 2021. IAF, Tab 1 at 8. The administrative judge issued a jurisdictional order in which she apprised the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered her to submit evidence and argument establishing Board jurisdiction over her appeal. IAF, Tab 3. The administrative judge also directed the appellant to file a statement detailing the specific elements of her claim. Id. In response, the appellant provided a sworn declaration asserting that she made2 protected disclosures, engaged in protected activity, and further described the actions she alleged were taken in retaliation for the same. IAF, Tab 9 at 4-8. She also included a copy of her OSC complaint. Id. at 9-29, 98-105. In an initial decision based on the written record, the administrative judge found that the appellant exhausted her claims with OSC but failed to make a nonfrivolous allegation that her protected disclosure or protected activity was a contributing factor in the agency’s decision to take a personnel action against her. IAF, Tab 14, Initial Decision (ID) at 1, 10. Specifically, she found it undisputed that the appellant made a protected disclosure in 2010 and engaged in protected activity when she filed a Board appeal in 2013 and a petition for review in 2015 relating to her protected disclosure. ID at 5. She also found that the agency subjected her to a personnel action when it failed to select her for an Industry Operations Investigator (IOI) position, but she concluded that the appellant failed to demonstrate that her disclosure or activity was a contributing factor in the agency’s decision to not select her for the IOI position. ID at 7-10. Therefore, the administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing. ID at 1, 10. The appellant has timely filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 4. The appellant has filed a reply. PFR File, Tab 8. DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal if the appellant exhausts her administrative remedies before OSC and makes nonfrivolous allegations that she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14; see Hessami v. Merit Systems Protection3 Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020). The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).2 The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami, 979 F.3d at 1364, 1369. 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. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015). For the reasons discussed below, we agree with the administrative judge that the appellant has shown that she exhausted her administrative remedies before OSC but failed to nonfrivolously allege that her protected disclosure or protected activity was a contributing factor in her nonselection. The appellant exhausted her administrative remedies with OSC. To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must have provided OSC with a sufficient basis to pursue an investigation into her allegations of whistleblower reprisal. Chambers, 2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s initial OSC complaint, evidence the original complaint was amended (including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations), and the appellant’s written responses to OSC referencing the amended allegations. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may be proved 2 The regulation further provides that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s) . 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. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).4 through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in her appeal. Chambers, 2022 MSPB 8, ¶ 11. Here, the appellant submitted her OSC complaint in which she stated that the agency engaged in nepotism, did not select her for a position, and denied her training in retaliation for her protected disclosure and activity. IAF, Tab 9 at 10-29. She also submitted her Board appeal rights letter wherein OSC characterized her complaint as alleging that agency officials retaliated against her by failing to provide her training and refusing to promote her. Id. at 106. OSC’s correspondence also characterized her whistleblowing and protected activity as a report that her supervisor inflated inspection numbers and harassed her as well as her filing “an EEO complaint, an OSC complaint, a[n] MSPB appeal, a federal tort claim, a federal case against the agency, made reports to Congress, and appealed the MSPB’s final findings.” Id. Accordingly, we agree with the administrative judge that the appellant exhausted her administrative remedies before OSC. The administrative judge correctly concluded that the appellant nonfrivolously alleged that she made one protected disclosure under 5 U.S.C. § 2302(b)(8). 2010 Disclosure. Protected whistleblowing occurs when an appellant makes a disclosure that she reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Mason, 116 M.S.P.R. 135, ¶ 17. The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced a violation of a law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id. 5 Here, the administrative judge found it undisputed that the appellant made a protected disclosure in 2010 regarding inflated inspection numbers. ID at 5. The parties do not challenge this finding on review, and we discern no basis to disturb it. To the extent that the appellant argues that the administrative judge failed to assess her reasonable belief as to her 2010 disclosure, this was unnecessary as the Board previously found the disclosure at issue to be a protected disclosure within the meaning of the Whistleblower Protection Act. Smith v. Department of Justice , MSPB Docket No. CH-1221-13-0304-W-2, Initial Decision at 6 (Oct. 30, 2015). Federal Lawsuit for Assault and Harassment. The appellant alleges on review that the administrative judge erred in not finding that her Federal lawsuit for assault and harassment was a protected disclosure under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 14-15. Specifically, she argues that her lawsuit “is a disclosure of a violation of law because ‘assault and harassment’ are legally prohibited.” Id. at 15. In support of her argument, the appellant cites the Board’s opinions in Lewis v. Department of Commerce , 101 M.S.P.R. 6 (2005), and Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469 (2010). We are not persuaded and find that the appellant’s reliance on these cases is misplaced. In Lewis, the Board found that the appellant made a nonfrivolous allegation that she disclosed a violation of law, rule, or regulation when she alleged that she disclosed to an agency official that her department head cursed at her and assaulted her. Lewis, 101 M.S.P.R. 6, ¶ 11. Similarly, in Baldwin, the Board found that the appellant made a protected disclosure when he reported threats of an assault by his coworkers to agency officials. Baldwin, 113 M.S.P.R. 469, ¶¶ 16-21. However, in this case, the appellant fails to provide any details beyond her vague assertion that she reported to her former supervisor that she was assaulted and filed a Federal lawsuit. IAF, Tab 9 at 104. As previously noted,6 vague, conclusory, and pro forma allegations do not meet the nonfrivolous allegation standard needed to establish the Board’s jurisdiction over an IRA appeal. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Accordingly, we conclude that the appellant failed to nonfrivolously allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) in connection with her Federal lawsuit. The administrative judge correctly concluded that the appellant nonfrivolously alleged that she engaged in some protected activity under 5 U.S.C. § 2302(b)(9). The administrative judge found it undisputed that the appellant engaged in protected activity when she filed a Board appeal in 2013 and a petition for review in 2015 relating to her 2010 protected whistleblower disclosure. ID at 5-6. The parties do not dispute this finding on review, and we discern no basis to disturb it. However, the administrative judge concluded that the appellant’s Federal lawsuit was not a protected activity because it did not fall within the purview of an IRA appeal. ID at 6. We agree. Section 2302(b)(9)(A) covers the protected activities of “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation – (i) with regard to remedying a violation of paragraph (8); or (ii) other than with regard to remedying a violation of paragraph (8).” However, the Board’s jurisdiction in an IRA appeal includes claims arising under 5 U.S.C. § 2302(b)(9)(A)(i), but does not include claims arising under 5 U.S.C. § 2302(b)(9)(A)(ii); thus, the appellant’s Federal lawsuit may only be the subject of an IRA appeal if she sought therein to remedy a violation of 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). In this case, the appellant’s Federal lawsuit was not to remedy a violation under 5 U.S.C. § 2302(b)(8). Thus, we find that the appellant failed to allege that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) in connection with her Federal lawsuit. The appellant also challenges the administrative judge’s finding that she failed to nonfrivolously allege that she engaged in protected activity when she7 alleged that she filed equal employment opportunity (EEO) complaints. PFR File, Tab 1 at 15-18. She also argues that the administrative judge erred by not finding that she made a protected disclosure when she filed her EEO complaints. Id. at 16. We disagree. The Board recently reaffirmed that filing an EEO complaint is a matter relating solely to discrimination and is not protected by 5 U.S.C. § 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-13, 20, 22-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); see Williams v. Department of Defense , 46 M.S.P.R. 549, 554 (1991). Further, there is no indication in the record that the substance of her EEO complaints sought to remedy a violation of 5 U.S.C. § 2302(b)(8). The appellant did not provide copies of the EEO complaints or a detailed description of the contents of the complaints below, and what little information she did provide about the complaints indicates that they do not concern remedying a violation of whistleblower reprisal under 5 U.S.C. § 2302(b)(8). Instead, the EEO complaints, as described by the appellant, concerned violations of civil rights laws. PFR File, Tab 1 at 16. Consequently, the administrative judge correctly determined that the appellant has failed to nonfrivolously allege that she made a protected disclosure or engaged in protected activity in connection with this claim. The administrative judge correctly concluded that the appellant nonfrivolously alleged that her nonselection constituted a personnel action, but failed to nonfrivolously allege that the agency denied her training opportunities pursuant to 5 U.S.C. § 2302(a)(2)(A)(ix). As an initial matter, it is undisputed that the agency did not select the appellant for the IOI position. IAF, Tab 9 at 113, Tab 10 at 18-19, 42. Decisions to not promote or to not appoint an applicant, otherwise known as nonselections, are enumerated personnel actions under 5 U.S.C. § 2302(a)(2)(A)(i)-(ii). The administrative judge found, and the parties do not dispute on review, that the appellant’s nonselection was a personnel action. ID at 7. We agree and discern no basis to disturb this finding.8 On review, the appellant challenges the administrative judge’s finding that she did not meet her burden of nonfrivolously alleging that the agency denied her training opportunities. PFR File, Tab 1 at 21-22; ID at 7-8. We are not persuaded. “[A] decision concerning . . . training” is a personnel action if it “may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other [personnel] action [as described in 5 U.S.C. § 2302(a)(2) (A).]” 5 U.S.C. § 2302(a)(2)(A)(ix). Thus, the plain wording of the statute explicates that not all denials of training opportunities are covered personnel actions. Id.; see Simone v. Department of the Treasury , 105 M.S.P.R. 120, ¶ 9 (2007). Here, the appellant failed to identify any training opportunities that may have reasonably led to an appointment, promotion, performance evaluation, or similar action. As the administrative judge properly noted below, the appellant “provide[d] nothing more than a few vague and conclusory statements that the agency did not provide training.” ID at 7. Thus, we agree that she failed to nonfrivolously allege that her alleged lack of training constitutes a personnel action. Regarding the appellant’s argument that the administrative judge erroneously overlooked that the agency subjected her to other personnel actions, including rescinding vacancy announcements to which she applied, reclassifying her position in 2010, subjecting her to multiple background checks, posting vacancy announcements while she was out of the office, and not selecting her for a different position in 2018 or 2019, there is nothing in the record indicating that she exhausted these personnel actions with OSC. PFR File, Tab 1 at 21-22. OSC’s letter clearly identifies only the lack of training and nonselection as the contested personnel actions, and the Board is limited to considering only those personnel actions that the appellant raised before OSC.3 Mason, 116 M.S.P.R. 135, ¶ 8. 3 Although it appears that the appellant made scant references to these alleged actions below, as previously noted, vague and conclusory statements are insufficient to establish a nonfrivolous allegation. See El, 123 M.S.P.R. 76, ¶ 6.9 The administrative judge correctly concluded that the appellant failed to nonfrivolously allege that her protected disclosure or activity was a contributing factor in the agency’s decision to take a personnel action against her. To satisfy the contributing factor criterion at the jurisdictional stage, an appellant need only raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the 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. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1). If an appellant fails to satisfy the knowledge/timing test, the Board 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 official, and whether those individuals had a desire or motive to retaliate against the appellant. As previously noted, the appellant’s prior disclosure and protected activities occurred between 6 and 11 years before the agency failed to select her for the IOI position. Therefore, we agree with the administrative judge that such a gap in time is too remote to satisfy the knowledge/timing test. See Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a disclosure made 2 ½ to 3 years before the relevant personnel actions was too remote for a reasonable person to conclude the disclosure was a contributing factor to the actions). Regarding the motive to retaliate, the record does not reflect that the appellant’s disclosures or protected activities were personally directed at the official who failed to select her for the position. IAF, Tab 9 at 9-29, 98-105.10 Other than her own conclusory assertions, the appellant identifies no specific evidence or argument that, if true, could show that the selecting official for the position at issue had any knowledge of her protected disclosure or activities. Id. For example, the appellant concedes that she is unaware of the selecting official for the IOI position. Id. at 19. Therefore, we find that the appellant failed to raise nonfrivolous allegations that she made a protected disclosure or engaged in protected activity that was a contributing factor in the agency’s nonselection decision. Accordingly, we dismiss the appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.11 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,12 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 13 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 14 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.15	Smith_Janel_N_CH-1221-22-0137-W-1__Final_Order.pdf	2024-04-23	JANEL N. SMITH v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-1221-22-0137-W-1, April 23, 2024	CH-1221-22-0137-W-1	NP
1,702	https://www.mspb.gov/decisions/nonprecedential/Coleman_Janelle_M_DA-1221-22-0196-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JANELLE M. COLEMAN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-1221-22-0196-W-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janelle M. Coleman , Alexandria, Louisiana, pro se. Raqueal Jones , New Orleans, Louisiana, for the agency. Patrick A. Keen , Shreveport, Louisiana, for the agency. Tijuana Griffin , Little Rock, Arkansas, 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 Individual Right of Action (IRA) appeal without prejudice subject to automatic refiling at a later date. 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). ¶2The administrative judge dismissed this appeal without prejudice to refiling to allow the parties to submit evidence and argument concerning an additional personnel action. Initial Appeal File, Tab 28, Tab 29, Initial Decision. An administrative judge has wide discretion to dismiss an appeal without prejudice in the interest of fairness, due process, and administrative efficiency, and the administrative judge may order such a dismissal at the request of one of both parties, or to avoid a lengthy or indefinite continuance. Gingery v. Department of the Treasury, 111 M.S.P.R. 134, ¶ 11 (2009). Based on our review of the record, we find that the administrative judge’s dismissal without prejudice was not an abuse of discretion. On review, the appellant makes various arguments concerning the merits of her IRA appeal, such as alleging that witnesses made false statements during the hearing, the administrative judge interfered with her ability to question witnesses, and that the agency committed fraudulent acts against her. PFR File, Tabs 1, 4. However, those arguments are not relevant to the only issue before us at this time, which is whether the administrative judge abused his discretion in dismissing the appeal without prejudice. Gingery,2 111 M.S.P.R. 134, ¶ 11. Finally, the appellant’s arguments regarding a 1-year statute of limitations under Louisiana state law are not relevant to this appeal, which is governed by 5 U.S.C. § 1214. ¶3This is the final decision of the Board on the appellant’s petition for review of the January 3, 2023 initial decision dismissing her appeal without prejudice subject to automatic refiling at a later date. Since that automatic refiling date has passed, we FORWARD the appeal to the Dallas Regional Office for docketing and adjudication as a refiled appeal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.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.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Coleman_Janelle_M_DA-1221-22-0196-W-1__Final_Order.pdf	2024-04-22	JANELLE M. COLEMAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-22-0196-W-1, April 22, 2024	DA-1221-22-0196-W-1	NP
1,703	https://www.mspb.gov/decisions/nonprecedential/Cai_Li_Y_NY-1221-22-0060-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LI YE CAI, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER NY-1221-22-0060-W-1 DATE: April 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Li Ye Cai , Middle Village, New York, pro se. Elizabeth Connelly , Esquire, and Frank Charles Sharp , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the initial decision, and REMAND the case to the field office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant is employed as a GS-12 Information Technology Specialist (ITS) in the Office of Information and Technology (OIT) for Customs and Border Protection (CBP), domiciled at John F. Kennedy International Airport. Cai v. Department of Homeland Security , MSPB Docket No. NY-1221-22-0060-W-1, Initial Appeal File (IAF), Tab 1 at 1. On March 20, 2020, the then -Governor of New York signed an executive order, commonly referred to as “New York State on PAUSE,” aimed at “assur[ing] uniform safety for everyone” in light of the spread of the coronavirus. N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.8 (2020); IAF, Tab 6 at 7-8; New York State, Governor Cuomo Signs the “New York State on Pause” Executive Order (Mar. 20, 2020) (March 20, 2020 Announcement), https://www.governor.ny.gov/news/governor - cuomo - signs - new - york - state - pause - executive - order#:~:text=Governor%20Cuomo%20also%20announced %20%22Matilda’s,and%20those%20with%20underlying%20illnessess . The executive order limited activities such as in-person business operations. N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.8; IAF, Tab 6 at 7-10. A Governor’s Office announcement regarding this executive order also announced, “Matilda’s Law.” IAF, Tab 6 at 7, 9-10; March 20, 2020 Announcement. According to the announcement, individuals 70 years or older generally were required to stay at home. IAF, Tab 6 at 7, 9-10; March 20, 2020 Announcement. However, the executive order itself did not include this provision. N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.8. That same day, the OIT Area Manager emailed a temporary telework schedule for the following 8 weeks, beginning on March 23, 2020. IAF, Tab 6 at 64. Pursuant to this schedule, the appellant, who at the time was 72 years old, was to work in the office for 4 of the following 8 weeks. Id. In contrast, two2 younger coworkers were each scheduled to work in the office 2 of the 8 weeks. Id. On March 24, 2020, the appellant emailed the OIT Area Manager, the Regional Director of OIT, and an agency official, objecting to the schedule on the basis that he was at a higher risk of contracting COVID-19 due to his age and informing them that the New York Governor was advising that New Yorkers “stay away from senior citizens.” IAF, Tab 6 at 61-63. He attached to his emails a newspaper article stating that the New York Governor “said his most critical request of New Yorkers is to stay away from the most vulnerable,” including “people who are over 70.” Id. at 61-62. The appellant alleges that on March 25, 2020, one of his more junior colleagues fell ill from COVID-19.2 Id. at 4. On April 3, 2020, the OIT Area Manager sent out a new in-office schedule, covering the following 9 weeks, beginning on April 6, 2020. IAF, Tab 15 at 67-69. This schedule designated one of nine employees to cover each week, with the appellant scheduled to be in the office the week of May 25, 2020. Id. at 68. On April 9, 2020, the appellant’s first-level supervisor sent an email to the appellant and others advising that the prior day “a special cleaning company [came] and wiped down all the desks in the OIT area and computer room. Once this was completed, they fogged the area with a disinfectant.” Id. Thereafter, the appellant claims he made disclosures and engaged in activities as follows: (1) on July 7, 2020, he emailed the CBP Commissioner, IAF, Tab 6 at 4-5; (2) on September 16, 2020, he emailed New York City Councilmember Robert Holden, id. at 55; (3) in October 2020, he filed a complaint with the New York State Division of Human Rights, id. at 36-45; (4) on October 13, 2020, he emailed the office of U.S. Representative Grace Meng, id. at 17-20; (5) in November 2020, he filed an Office of Special Counsel (OSC) complaint (MA -21-000299), which he appears to have amended around January 2021, Cai v. Department of Homeland Security , MSPB Docket No. NY- 2 According to the appellant, his coworker later passed away. IAF, Tab 6 at 55.3 0752-22-0142-I-1 (2022 removal appeal), Initial Appeal File (0142-I-1 AF), Tab 18 at 6; (6) on May 6, 2021, he emailed U.S. Senator Kirsten Gillibrand, IAF, Tab 6 at 50; (7) on June 21, 2021, he filed an OSC complaint (DI -21-000600) alleging prohibited personnel practices, 0142-I-1 AF, Tab 1 at 32-35; (8) on August 13, 2021, after receiving a final determination from OSC in his MA -21- 00299 complaint, he filed his first IRA appeal with the Board, Cai v. Department of Homeland Security , MSPB Docket No. NY -1221-21-0142-W-1 (2021 IRA appeal), Initial Appeal File (0142-W-1 AF), Tab 1; (9) on August 18, 2021, he disclosed information to the agency’s Office of Inspector General (OIG), IAF, Tab 6 at 52-53; (10) in 2021, he participated in another OSC investigation involving an unidentified coworker, IAF, Tab 5 at 8; and (11) on November 24, 2021, he filed his first chapter 75 appeal over his removal, raising an affirmative defense of whistleblower reprisal, Cai v. Department of Homeland Security , MSPB Docket No. NY-0752-22-0020-I-1, Initial Appeal File (0020 IAF), Tab 1 at 5. The aforementioned complaints included allegations that, in March 2020, the agency placed him at risk and violated the executive order and Matilda’s Law when an on-site schedule required him to work in the office twice as often as younger colleagues, and the agency failed to clean and disinfect the premises after his colleague fell ill. IAF, Tab 5 at 8, Tab 6 at 4-5, 17-20, 45, 53, 55; 0142-I-1 AF, Tab 1 at 32-33, Tab 18 at 6; 0020 IAF, Tab 1 at 5. According to the appellant, as a result of his disclosures and activity, he was subjected to retaliation, including the following: (1) on January 14, 2021, the agency issued him a proposed removal and placed him on administrative duty; (2) on August 5, 2021, the agency offered him a last chance agreement (LCA); and (3) on August 27, 2021, the agency issued him a removal decision. IAF, Tab 5 at 6. The appellant submitted the underlying whistleblower reprisal complaint to OSC in December 2021, which was assigned the complaint number MA-22-000502. Id. at 10-32. OSC issued him a final determination letter on4 January 21, 2022, and closed its investigation into his complaint. IAF, Tab 1 at 4-5. The appellant then filed this IRA appeal with the Board. IAF, Tab 1. The administrative judge thereafter issued an order setting forth the appellant’s burden to establish jurisdiction over his appeal. IAF, Tab 4. The appellant submitted a response, providing information regarding the aforementioned disclosures and activities and the personnel actions at issue. IAF, Tab 5 at 4-6. He also attached to his response a copy of his OSC complaint form and a written summary of his claims that he provided to OSC, a copy of OSC’s final determination letter, and the “evidence and amendments filed with OSC.” IAF, Tab 5 at 8-32, Tab 6. The agency responded to the appellant’s submission. IAF, Tab 10 at 4-18. The administrative judge issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID) at 2, 15. She found that the appellant had exhausted the alleged personnel actions at issue as well as the alleged protected disclosures and activities enumerated above, except the July 7, 2020 email to the CBP Commissioner. ID at 10-11. The administrative judge also concluded that the appellant had failed to nonfrivolously allege that he made a protected disclosure. ID at 15. She did not separately address whether any of his alleged disclosures might constitute protected activities within the Board’s IRA jurisdiction. Id. Finally, she concluded, without providing an explanation, that the appellant had failed to nonfrivolously allege that any protected disclosures and activities were a contributing factor in a personnel action. Id. The appellant has filed a petition for review of the initial decision. Cai v. Department of Homeland Security , MSPB Docket No. NY-1221-22-0060-W-1, Petition for Review (PFR) File, Tab 1. The agency has filed a response, to which the appellant replied. PFR File, Tabs 3-4. On review, the appellant disputes the administrative judge’s determination that the appellant failed to nonfrivolously5 allege that he made a protected disclosure. PFR File, Tab 1 at 4-6. He also asserts that some of the matters the administrative judge treated as protected disclosures were protected activities. Id. at 6. He reargues that he established that his protected disclosures and activities were contributing factors in the personnel actions taken against him because the timing of the personnel actions coincided with the timing of when the agency learned about his disclosures and activities. Id. at 7; IAF, Tab 5 at 4-5. DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal if the appellant has exhausted his remedies before OSC and makes nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in a 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). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5. We address on review the appellant’s March 24, 2020 disclosures, which the administrative judge overlooked. On review, the appellant alleges that the investigation that led to his removal began after his March 24, 2020 disclosure to a union official. PFR File, Tab 1 at 5; IAF, Tab 6 at 58-59. The administrative judge did not identify or address the appellant’s March 24, 2020 emails in the initial decision. ID at 9-15. We find it appropriate to do so here. Pro se pleadings are to be construed liberally. Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 15 (2010). In a jurisdictional order, the administrative judge instructed the appellant to identify all of his protected disclosures and activities. IAF, Tab 4 at 7. The appellant did not list in his response his March 24, 2020 email to a union official, or similar emails to management on the same day, as an alleged protected disclosure or activity. IAF, Tab 5 at 5.6 Further, they were not identified by OSC in its January 21, 2022 letter advising the appellant that it was closing its investigation into his claims. Id. at 8-9. However, in the documentation that he submitted in support of his jurisdictional response, he provided copies of these emails, as well as a summary of his claims that he submitted to OSC that identified the emails on a list of “Protected Disclosures/Activities.” IAF, Tab 5 at 12-13, Tab 6 at 3, 58-63. We find this documentation was sufficient to raise the March 24, 2020 emails. Therefore, we address them on review. The administrative judge erred in finding that the appellant had not exhausted all of his alleged disclosures. The administrative judge found that the appellant exhausted his alleged disclosures, activities, and personnel actions with OSC, with two exceptions—the March 24, 2020 emails, which, as indicated above, she did not address, and his July 7, 2020 email to the CBP Commissioner. ID at 11. The parties do not dispute the administrative judge’s determination that the appellant exhausted the remaining matters, and we discern no basis to disturb those findings on review. We further conclude that the appellant exhausted his March 24, 2020 emails and July 7, 2020 alleged disclosure. An appellant satisfies the exhaustion requirement when he has provided OSC with a sufficient basis to pursue an investigation into his allegations of whistleblower reprisal. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through his initial OSC complaint or correspondence with OSC. Id., ¶ 11. Alternatively, exhaustion may be proven through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in his appeal. Id. An appellant must prove exhaustion by preponderant evidence. Id. In finding that the appellant did not exhaust his July 2020 alleged disclosure, the administrative judge declined to rely on evidence the appellant7 stated that he submitted to OSC. ID at 11. This evidence included the summary of his claims that he provided to OSC. IAF, Tab 5 at 10-32. In the summary, he referred to his July 7, 2020 email to the CBP Commissioner and stated, “I attach the complete correspondence with [the CBP Commissioner].” Id. at 10. The appellant also provided with his jurisdictional response below a copy of the July 7, 2020 email, which he declared under penalty of perjury he had submitted to OSC. IAF, Tab 6 at 3 -5. The appellant’s OSC complaint and summary of claims, and his statement that he submitted the July 7, 2020 email to OSC, were sufficient to prove he exhausted the July 7, 2020 email. Further, as discussed above, the appellant identified to, and exhausted with, OSC his March 24, 2020 emails. Accordingly, we find that the appellant established by preponderant evidence that he exhausted his March 24 and July 7, 2020 emails. The appellant made nonfrivolous allegations that he engaged in protected activity. In her initial decision, the administrative judge found that the appellant failed to nonfrivolously allege that any of his communications regarding the agency’s failure to take appropriate safety precautions, in violation of COVID guidelines, constituted protected disclosures. ID at 15. She did not issue a finding as to whether the appellant engaged in protected activity with respect to any of those complaints. On review, the appellant argues that this was error and that his complaints were protected. PFR File, Tab 1 at 4-6. We agree in part, as discussed below. In the final decision in the appellant’s 2022 removal appeal, we concluded that the appellant proved by preponderant evidence that he engaged in the following protected activities under 5 U.S.C. § 2302(b)(9): (5) his November 2020 OSC complaint (MA -21-000299); (7) his June 21, 2021 OSC complaint (DI-21-000600); (8) his August 13, 2021 IRA Board appeal; (9) his August 18, 2021 OIG complaint; and (11) his November 2021 chapter 75 removal appeal, in8 which he raised a claim of whistleblower reprisal.3 Cai v. Department of Homeland Security , MSPB Docket No. NY-0752-22-0142-I-1, Final Order (0142-I-1 Final Order) (Jan. 26, 2024). The nonfrivolous allegation standard needed to establish jurisdiction here is lower than the preponderance of the evidence standard needed to prove the appellant’s claims on the merits. See Ingram, 114 M.S.P.R. 43, ¶¶ 10, 20 (explaining that an appellant who made nonfrivolous allegations that he made a protected disclosure that was a contributing factor in a personnel action was required to prove his claims on the merits by preponderant evidence). Because in the 2022 removal appeal, we found that the appellant proved that he engaged in this protected activity by preponderant evidence, we find that he necessarily met his jurisdictional burden with respect to the same claims. The appellant is collaterally estopped from asserting jurisdiction over disclosures (1), (2), (3), (4), and (6), and protected activity (10). Although not raised by either party on review, we find that the appellant is collaterally estopped from claiming what is identified above as alleged protected disclosures (1), (2), (3), (4), and (6) and protected activity (10). Collateral estoppel, or issue preclusion, is appropriate when the issue is identical to that involved in the prior action, the issue was actually litigated in the prior action, the determination of the issue in the prior action was necessary to the resulting judgment, and the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party to the earlier action or as one whose interests were otherwise fully represented in that action. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). The Board has held that collateral estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a 3 For the sake of clarity, we will continue to use the numbering we assigned to the appellant’s disclosures and activities earlier in this decision. See supra pp. 3-49 prior decision is afforded collateral estoppel effect and the appellant provides no other valid basis of Board jurisdiction. Id. Further, when an appellant fails to prove a claim by preponderant evidence in an earlier appeal, he is barred by collateral estoppel from asserting jurisdiction over the same claim in a second appeal. Id., ¶ 16. The Board will not adjudicate the claim a second time even if the lower nonfrivolous pleading standard would otherwise apply at the jurisdictional stage. Id. In the 2022 removal appeal, we found that the appellant failed to prove that the following were protected disclosures: (2) his September 16, 2020 email to Councilmember Holden; (3) his October 2020 New York State Division of Human Rights complaint; (4) his October 13, 2020 email to Representative Meng; and (6) his May 6, 2021 email to Senator Gillibrand. We also found that the appellant failed to prove that his 2021 participation in a separate OSC investigation involving another colleague, identified as activity (10), was a protected activity. 0142-I-1 Final Order. The issue of whether these matters were protected disclosures or activity under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D) is identical to the issue here, and our decision in the removal appeal is now a final decision. See 5 C.F.R. § 1201.113(c) (providing that if the Board grants a petition for review, the decision of the Board is final if it disposes of the entire action). Further, the issue was adjudicated on the merits after a hearing was held at the appellant’s request. 0142-I-1 AF, Tab 1 at 2, Tab 33, Hearing Compact Disc. Resolving whether these claims constituted protected disclosures and activity was necessary to the resulting determination to deny corrective action in connection with the appellant’s removal. He had a full opportunity to litigate the matter as a party in that action. Therefore, we find that the Board lacks jurisdiction over these alleged disclosures and activity. Similarly, in an initial decision issued in the appellant’s 2021 IRA appeal, an administrative judge found that the appellant failed to nonfrivolously allege that his email to the CBP Commissioner, identified as disclosure (1), above, was10 protected. 0142 -W-1 AF, Tab 32, Initial Decision (0142-W-1 ID) at 4-5. That determination was necessary to the administrative judge’s dismissal of the appeal for lack of jurisdiction, and the appellant was a party. 0142-W-1 ID at 1, 7; 0142-W-1 AF, Tab 1 at 1. Neither party filed a petition for review, and that decision is now final. 0142-W-1 ID at 7; see 5 C.F.R. § 1201.113(a) (providing that an initial decision generally will become the Board’s final decision absent a timely filed petition for review). Thus, we find that the appellant is also collaterally estopped from relitigating disclosure (1).4 The appellant nonfrivolously alleged that his March 24, 2020 emails were protected disclosures. A protected disclosure is one that an appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining whether an employee had a reasonable belief that his disclosures were protected is whether a disinterested observer in his position with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶¶ 5, 8. Concerning a disclosure of a danger to public health or safety, the inquiry into whether a disclosed danger is sufficiently substantial and specific to warrant protection under whistleblower protection laws is guided by several factors, including (1) “the likelihood of harm resulting from the danger,” (2) “when the alleged harm may occur,” and (3) “the nature of the harm,” i.e., “the potential consequences.” Chambers v. Department 4 In the initial decision issued in the appellant’s 2021 IRA appeal, the administrative judge also found that the appellant failed to nonfrivolously allege that his emails to Representative Meng, identified as disclosure (4) above, were protected. 0142-W-1 ID at 5-6. Thus, in addition to being collaterally estopped based on the 2022 removal appeal, we find that the appellant is also collaterally estopped from relitigating disclosure (4) based on his 2021 IRA appeal.11 of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). The appellant does not have to prove that harm occurred, but rather nonfrivolously allege that he reasonably believed the potential for harm was readily foreseeable. See Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 21 (2013) (finding that an appellant proved that her disclosure that nurses were not changing patients’ dressings was protected, regardless of whether harm actually occurred, because it is readily foreseeable that failure to change such dressings could result in infection). Because the administrative judge did not identify the appellant’s March 24, 2020 emails as alleged protected disclosures, she did not make findings as to whether the appellant met his jurisdictional burden. We find that a reasonable person in the appellant’s position with knowledge of the facts known to him on March 24, 2020, could have reasonably concluded that the agency’s actions evidenced a substantial and specific danger to public health or safety, or any of the conditions set forth in 5 U.S.C. § 2302(b)(8). At that time, the guidance provided by the Centers for Disease Control and the New York Governor was that senior citizens over the age of 70 should shelter in place due to risk of serious injury or death cause by the COVID -19 pandemic. IAF, Tab 6 at 8-10, 60-62. In the appellant’s emails to the OIT Area Manager and union representative, he objects to the original telework schedule, which had him scheduled to work in the office twice as often as his younger colleagues, on the basis that he was over the age of 70 and therefore in the “most vulnerable” population. IAF, Tab 6 at 58, 63. The perceived likelihood of severe personal and public harm from the virus—including the harm of death—was high and imminent at the time. In fact, the news article the appellant attached to his March 24, 2020 emails reflected that 5,151 people in New York City had tested positive for the virus and approximately 29 people had died. IAF, Tab 6 at 61. In a comparable situation, the Board has found that the risk of danger posed by individuals with explosives or other prohibited items bypassing airport checkpoints was substantial and specific. Aquino v. Department of Homeland12 Security, 121 M.S.P.R. 35, ¶¶ 14-17 (2014). Similarly, the U.S. Court of Appeals for the Federal Circuit concluded that a chief of police reasonably believed that the reduction in the number patrol officers on the Baltimore-Washington Parkway from four to two led to an increase in traffic accidents, and thus created a danger to public health and safety. Chambers v. Department of the Interior , 602 F.3d 1370, 1373, 1378-79 (Fed. Cir. 2010). We find that the likelihood, imminence, and severity of the harm in this case are at least as high as in Aquino and Chambers. Under these circumstances, we believe that the appellant has nonfrivolously alleged that he made a protected disclosure with respect to his March 2020 emails.5 The appellant nonfrivolously alleged that he was subjected to a personnel action. The administrative judge found that the only alleged personnel action before her was the appellant’s removal because the appellant was collaterally estopped from re-raising his proposed removal in this appeal and because a settlement offer of an LCA is not a personnel action. ID at 10. The administrative judge did not address whether the appellant’s placement on administrative duty could constitute a personnel action. The parties do not dispute the administrative judge’s findings on review. Nonetheless, we revisit 5 In connection with the appellant’s later alleged disclosures, the administrative judge observed that, despite its name, Matilda’s Law consisted of a series of recommendations, rather than an actual “law.” ID at 13; see Allutto v. Commissioner of Labor, 176 N.Y.S.3d 877, 879 (N.Y. App. Div. 2022) (concluding that “Matilda’s Law, despite its moniker, is not an enacted law”). She also found that the executive order and Matilda’s Law did not apply to the agency and that the appellant could not reasonably have believed that they did. ID at 12-15. In light of our finding here that the appellant nonfrivolously alleged that he reasonably believed that his March 24, 2020 disclosure evidenced a substantial and specific danger to public health or safety, we need not address the parties’ arguments regarding whether he also nonfrivolously alleged that he reasonably believed that this disclosure evidenced that the agency violated a law, rule, or regulation. PFR File, Tab 1 at 4, Tab 3 at 4; see Gabel, 2023 MSPB 4, ¶ 6 (stating that a nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)).13 them here because the issue of the Board’s jurisdiction is always before it and may be raised sua sponte by the Board at any time during a Board proceeding. Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 8 (2013). We disagree that the appellant is collaterally estopped from re-raising his proposed removal, and we find that he has nonfrivolously alleged that his proposed removal and contemporaneous assignment from his ITS duties to administrative duties constituted personnel actions. We further conclude that the appellant is barred by res judicata from challenging his removal in this appeal. We agree with the administrative judge that the appellant failed to nonfrivolously allege that the offer of an LCA here constituted a personnel action. The appellant is not collaterally estopped from raising his proposed removal in this appeal. The determination of whether the appellant nonfrivolously alleged that his proposed removal was a personnel action was not necessary to the dismissal of his 2021 IRA appeal for lack of Board jurisdiction. See Hau, 123 M.S.P.R. 620, ¶ 13. In fact, the administrative judge in that case found that the appellant’s proposed removal constituted a personnel action. 0142-W-1 ID at 4. She dismissed the appeal for lack of jurisdiction based on her conclusion that the appellant had failed to establish jurisdiction over a protected disclosure. Id. at 4-7. Thus, the appellant is not precluded from pursuing a claim regarding his proposed removal. Moreover, a proposed removal is a threatened personnel action over which the Board has IRA jurisdiction. See Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 25 (2004). Similarly, the appellant has nonfrivolously alleged that while his proposed removal was pending, he was involuntarily assigned to administrative duties. IAF, Tab 7 at 15. While the appellant does not provide any specific information about how his duties changed, any doubt or ambiguity as to whether he made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. Therefore, we conclude he met his burden here. See14 5 U.S.C. § 2302(a)(2)(A)(iv) (defining “personnel action” for purposes of an IRA appeal to include “a detail, transfer, or reassignment”). Regarding the settlement offer of an LCA, the appellant alleged that between January and August 5, 2021, he received three offers of an LCA with copies of a removal decision and was informed that if he did not accept the last chance agreement and waive his pending complaints against the agency, the agency would officially issue the removal decision. IAF, Tab 16 at 12; 0142-I-1 AF, Tab 7 at 88. A threatened action can constitute a personnel action when it warns of future discipline. 5 U.S.C. § 2302(b)(8)-(9) (prohibiting a threat to take a personnel action because of a protected activity or disclosure); see Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 10 (2015) (explaining that the term “threaten” in 5 U.S.C. § 2302 should be interpreted broadly and can encompass warnings of possible future discipline). However, the administrative judge found that the agency’s offer of an LCA was not a threat to take a personnel action. ID at 10. The appellant appears to dispute this finding on review, observing that the agreement would have required him to withdraw all complaints. PFR File, Tab 4 at 8. We decline to disturb the administrative judge’s determination. Cf. Marler v. Department of Veterans Affairs, 58 M.S.P.R. 116, 122-23 (1993) (describing an offer to mitigate an action that would otherwise be taken in exchange for an agreement not to file an appeal as “merely an early settlement offer”). As a matter of public policy, the Board encourages settlement agreements, including LCAs, in resolving disputes without litigation. Kelley v. Department of the Air Force, 50 M.S.P.R. 635, 640 (1991); see Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶ 17 (2017) (observing that public policy favors settlement agreements, which serve to avoid unnecessary litigation and to encourage fair and speedy resolution of issues); Tackett v. Department of the Air Force, 80 M.S.P.R. 624, ¶ 6 (1999) (explaining that the Board has long recognized that an appellant’s waiver of appeal rights in an LCA is consistent15 with public policy). Settlement offers are inadmissible in the merits of a case. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 3 n.2 (2016). Even beyond these public policy and evidentiary considerations, the practical effect of the last chance agreement offer would have been to lower the planned penalty of removal to a 14-day suspension.6 0142-I-1 AF, Tab 7 at 88; IAF, Tab 7 at 8. Had the appellant accepted the LCA, his removal would have been held in abeyance for a period of 3 years, during which time he would have agreed not to engage in any misconduct. IAF, Tab 7 at 8-9. In the event the appellant engaged in misconduct, the agency would implement his removal and the appellant’s right to challenge the removal would be waived. Id. Thus, we decline to find that the agency’s settlement offer to the appellant of an LCA constitutes a personnel action. Lastly, although a removal is a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii), that claim is now barred under res judicata because the issue of whether the appellant was removed in retaliation for his whistleblower activities was already decided in the 0142-I-1 chapter 75 appeal. Res judicata precludes parties from relitigating issues that were, or could have been, raised in the prior action and is applicable if: (1) the prior judgment was rendered by a forum with competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995). Here, the Board’s final decision in the 2022 removal appeal was decided on the merits, and it specifically stated that the decision was a “Final Order.” 0142-I-1 Final Order. The Board has held that generally an individual who appeals his removal directly to the Board is barred by res judicata from bringing, after exhausting his administrative remedies, a second whistleblower appeal challenging the same removal action. Ryan v. Department of the Air 6 After the appellant challenged his removal in his 2022 removal appeal, the administrative judge mitigated the penalty to a 30-day suspension. 0142-I-1 ID at 1, 7-8. We have affirmed that finding in a separate final decision. 0142 -I-1 Final Order.16 Force, 113 M.S.P.R. 27, ¶ 13 (2009); see Sabersky v. Department of Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002) (finding that an individual who appeals his removal directly to the Board is barred by res judicata from bringing, after exhausting the OSC process, an IRA appeal alleging that the same removal action was motivated by whistleblower reprisal), aff’d per curiam , 61 Fed. Appx. 676 (Fed. Cir. 2003). Thus, we find that the elements of res judicata are satisfied, and the appellant is therefore precluded from challenging the removal action once again in this IRA appeal. The only personnel actions properly before us are the appellant’s proposed removal and placement on administrative duty. The appellant nonfrivolously alleged that his March 2020 protected disclosure was a contributing factor in the proposed removal and placement on administrative duty. The administrative judge concluded, without providing an explanation, that the appellant failed to nonfrivolously allege that his protected disclosures or activity contributed to a personnel action. ID at 15. An appellant’s protected activity is a contributing factor if it in any way affects an agency’s decision to take, or fail to take, a personnel action. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant may establish the contributing factor criterion is the knowledge/timing test, under which he submits evidence showing that the official taking the personnel action knew of the disclosure or activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that a personnel action taken within approximately 1 to 2 years of an appellant’s disclosures or activity satisfies the timing portion of the knowledge/timing test. Id. The appellant alleged that his March 24, 2020 emails to a union official and management caused the agency to propose his removal on January 14, 2021. IAF,17 Tab 5 at 6, 12-13, 15. Therefore, the appellant’s allegations are sufficient to meet his jurisdictional burden as to the timing prong of the knowledge/timing test, as it concerns his proposed removal and placement on administrative duty. We also conclude that the appellant nonfrivolously alleged that the agency official who proposed his removal had constructive knowledge of the appellant’s March 24, 2020 disclosures. An appellant can show that a disclosure or activity was a contributing factor in a personnel action by proving that the official taking the action had constructive knowledge of the disclosure or activity. Dorney, 117 M.S.P.R. 480, ¶ 11. An appellant may establish constructive knowledge by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Id. The record below reflects that the appellant sent one of his March 24, 2020 emails directly to the OIT Area Manager. IAF, Tab 6 at 63. The appellant alleged that the OIT Area Manager, who was a subject of this disclosure, provided information that led to his proposed removal. IAF, Tab 16 at 6. Thus, the appellant has made nonfrivolous allegations regarding the knowledge prong of the knowledge/timing test. In cases such as this one, when the appellant has alleged multiple personnel actions, the Board has jurisdiction when the appellant exhausts his administrative remedies before OSC and makes a nonfrivolous allegation that at least one alleged personnel action was taken in reprisal for at least one alleged protected disclosure or activity. Skarada, 2022 MSPB 17, ¶ 13. Therefore, we find it appropriate to remand this appeal for a determination on the merits. Before proceeding to the merits, the administrative judge should make findings as to whether the appellant has met his burden to nonfrivolously allege that protected activities (5), (7), (8), (9), or (11) was a contributing factor in the proposed removal and placement on administrative duty. If so, she should adjudicate those matters on the merits as well. 18 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.19	Cai_Li_Y_NY-1221-22-0060-W-1__Remand_Order.pdf	2024-04-22	LI YE CAI v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-1221-22-0060-W-1, April 22, 2024	NY-1221-22-0060-W-1	NP
1,704	https://www.mspb.gov/decisions/nonprecedential/Infinger_Winfred_A_AT-0831-18-0777-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WINFRED A. INFINGER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0831-18-0777-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Winfred A. Infinger , The Villages, Florida, pro se. Tynika Faison Johnson , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction . On petition for review, the appellant argues the merits of his waiver revocation request, but he does not address the jurisdictional issue. 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.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 When, as here, the Office of Personnel Management completely rescinds a reconsideration decision, the Board no longer has jurisdiction over the appeal in which that reconsideration decision is at issue, and the appeal must be dismissed. See, e.g., Richardson v. Office of Personnel Management , 101 M.S.P.R. 128, ¶ 3 (2006). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Infinger_Winfred_A_AT-0831-18-0777-I-1__Final_Order.pdf	2024-04-22	WINFRED A. INFINGER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-18-0777-I-1, April 22, 2024	AT-0831-18-0777-I-1	NP
1,705	https://www.mspb.gov/decisions/nonprecedential/Conrad_NathanNY-0752-20-0225-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATHAN CONRAD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-0752-20-0225-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jesse L. Kelly, II , Esquire, Atlanta, Georgia, for the appellant. Justina L. Lillis , Esquire, Buffalo, New York, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed his indefinite suspension. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant is a GS-9 Firefighter (Paramedic) for the agency’s Bath Veterans Affairs Medical Center. Initial Appeal File (IAF), Tab 4 at 21. On July 28, 2020, a Steuben County, New York grand jury indicted the appellant on seven felony charges and one misdemeanor charge. Id. at 33-40. The felony charges included two counts of Criminal Possession of a Controlled Substance, two counts Criminal Sale of a Controlled Substance, and one count each of Hindering Prosecution, Tampering with Physical Evidence, and Unlawful Grand Jury Disclosure. Id. at 33-38, 40. The misdemeanor charge was for Unlawful Disclosure of an Indictment. Id. at 39. On August 7, 2020, the agency proposed the appellant’s indefinite suspension under 5 U.S.C. chapter 75, based on the July 28, 2020 indictments. Id. at 28-29. After the appellant responded, the agency issued a decision indefinitely suspending him “effective August 25, 2020, until the completion of the law enforcement investigation and any related judicial proceedings pertaining to this conduct.” Id. at 21-27. The appellant filed a Board appeal, contesting the agency’s action on nexus and penalty grounds. IAF, Tab 1, Tab 24. He raised no affirmative defenses.2 After a hearing, the administrative judge issued an initial decision affirming the indefinite suspension. IAF, Tab 28, Initial Decision (ID). She found that the indefinite suspension was imposed for an authorized reason and that it had an ascertainable end. ID at 4. She further found that, given the nature and duties of the appellant’s position and public knowledge of the matter, the criminal indictments bore a nexus to the efficiency of the service and the penalty was reasonable. ID at 5-6. The appellant has filed a petition for review, contesting the administrative judge’s findings on nexus and penalty. Petition for Review (PFR) File, Tab 1 at 5-7. The agency has filed a response. PFR File, Tab 3. ANALYSIS An indefinite suspension is valid when (1) there is reasonable cause to believe that the employee committed a crime for which a sentence of imprisonment may be imposed; (2) the suspension has an ascertainable end; (3) there is a nexus between the criminal charge and the efficiency of the service; and (4) the penalty is reasonable. Albo v. U.S. Postal Service , 104 M.S.P.R. 166, ¶ 6 (2006). We agree with the administrative judge that, based on the July 28, 2020 indictments, the agency had reasonable cause to believe that the appellant committed crimes for which a sentence of imprisonment might be imposed. ID at 4. Specifically, the appellant was charged under New York law with various class B and E felonies, as well as a class B misdemeanor, all of which carry the potential for a sentence of imprisonment. IAF, Tab 4 at 33-40; N.Y. Penal Law §§ 70.00, 70.15, 70.70. Further, because the appellant was indicted following an investigation and grand jury proceedings, rather than being merely charged or arrested, there is sufficient evidence of possible misconduct to meet the threshold requirement of reasonable cause to suspend. See Dunnington v. Department of Justice, 956 F.2d 1151 (Fed. Cir. 1992). The appellant does not challenge the3 administrative judge’s findings on these issues, and we find no reason to disturb them. The administrative judge also found that the indefinite suspension had an ascertainable end, i.e., the completion of the law enforcement investigation and any related judicial proceedings. ID at 4. The appellant declines to contest this finding on review, and we find that it is supported both by the evidence and the law. PFR File, Tab 1 at 5; IAF, Tab 4 at 22; see Novak v. Department of the Treasury, 12 M.S.P.R. 455, 458 (1982) (finding that the appellant’s indefinite suspension had an ascertainable end because the agency identified the resolution of criminal proceedings as a condition subsequent), aff’d and remanded , 723 F.2d 97 (D.C. Cir. 1983) (Table). Regarding nexus, the administrative judge found a connection between the criminal charges and the efficiency of the service because the matter had been publicized in the local community and the agency had lost trust and confidence in the appellant’s ability to carry out his duty of providing lifesaving medical treatment in emergency situations. ID at 5; IAF, Tab 4 at 22, Tab 7 at 8. Regarding penalty, the administrative judge found that indefinite suspension was within the tolerable limits of reasonableness in light of the agency’s concerns about patient care and the medical center’s reputation. ID at 5-6. The appellant challenges the administrative judge’s findings on nexus and penalty, both under essentially the same theory. Specifically, the appellant alleges that, prior to the July 28, 2020 indictments, he was indicted on October 8, 2019, for Criminal Possession of a Controlled Substance and Criminal Sale of a Controlled Substance.2 PFR File, 2 The appellant’s account of this matter is not well-supported by the record evidence. See Pupis v. U.S. Postal Service , 105 M.S.P.R. 1, ¶ 5 (2007) (“The statements of a party’s representative in a pleading do not constitute evidence.”). For instance, the record does not contain any copies of these prior indictments, and the administrative judge largely disallowed testimony about the matter on grounds of relevance. For purposes of our analysis, we will assume, without deciding, that the events transpired as the appellant alleges. 4 Tab 1 at 5; IAF, Tab 1 at 4. However, the agency did not elect to suspend him at that time, but instead detailed him to a different position. Id. The agency eventually returned him to his Firefighter position on May 30, 2020, shortly before the October 8, 2019 indictment was dismissed. IAF, Tab 8 at 6. As we understand it, the appellant is arguing that the agency essentially admitted that his 2020 criminal charges did not bear a nexus to the efficiency of the service because it declined to take action against him based on similar charges in 2019. PFR File, Tab 1 at 6. We also understand him to argue that if detail to a non-Firefighter position was an appropriate penalty for his 2019 criminal charges, it should also have been an appropriate penalty for his 2020 criminal charges. Id. at 7. Addressing the issue of nexus first, we are not persuaded that the agency’s actions or inactions in the wake of the appellant’s October 8, 2019 indictment serve to prevent it from proving nexus as to his July 28, 2020 indictment. It is well-established that an agency may meet its burden of establishing a nexus linking an employee’s off-duty misconduct with the efficiency of the service by showing that the misconduct at issue adversely affected the agency’s trust and confidence in his job performance. Beasley v. Department of Defense , 52 M.S.P.R. 272, 274-75 (1992). The record shows that the agency in this case harbored such concerns, and we find that these concerns were justifiable. IAF, Tab 4 at 22; Hearing Recording, Track 3 (HR 3) at 4:50, 6:35 (testimony of the deciding official). An agency may also establish nexus by showing that off-duty misconduct adversely affected the agency’s mission by being directly opposed to that mission or by detracting from public trust and confidence in the agency. Kruger v. Department of Justice , 32 M.S.P.R. 71, 74-75 (1987). The record in this case shows that a large part of Bath Medical Center’s mission involves helping patients combat drug addiction and that the appellant’s alleged off-duty criminal activity was publicized and known throughout the local community, thus establishing nexus under this theory as well. Hearing Recording, Track 2 (HR 2)5 at 12:00 (testimony of the proposing official); HR 3 at 6:35 (testimony of the deciding official). In any event, the appellant himself admits that the agency did take some action following the October 8, 2019 indictment by detailing him out of his position for a time. PFR File, Tab 1 at 5. This alone is sufficient to show that the agency believed that the prior indictment bore some connection to the efficiency of the service. The record also contains other evidence showing that the agency took the matter very seriously; the agency proposed the appellant’s removal on October 25, 2019, although it ultimately withdrew the proposal.3 IAF, Tab 8 at 18. Furthermore, even after it rescinded the proposed removal and returned the appellant to his position of record, the agency still mandated that he undergo drug rehabilitation and follow-up testing, and it proposed to suspend him for 5 days for his October 2019 use of illegal drugs.4 Id. at 19-21. In light of these facts, we are unpersuaded by the appellant’s argument that the agency did not find a nexus between his prior off-duty misconduct and the efficiency of the service. Turning to the issue of penalty, we observe, as an initial matter, that it hardly benefits the appellant’s case that he narrowly escaped serious repercussions for similar misconduct less than 1 year before. See Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981) (holding that the repetition of an offense is a relevant factor to consider in a penalty analysis). Furthermore, the Board has held that there often will be a range of penalties that would fall within the tolerable limits of reasonableness in a given case, and that an agency’s choice to impose a penalty at the more lenient end of that range in one case should not mean that it cannot impose a penalty at the more severe end of that range in another case. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18. 3 It appears that the agency held its removal decision in abeyance pending the outcome of an internal whistleblower complaint that the appellant had filed, and that it ultimately rescinded the proposal due to the amount of time that had elapsed without a decision. HR 2 at 31:05 (testimony of the deciding official). 4 The record does not seem to reveal what became of the proposed 5-day suspension.6 Likewise, we find that the agency in this case is not prevented from selecting two different but reasonable courses of action for two different but similar incidents of misconduct by the same employee. This is especially so in this case, in which the agency’s first course of action was to give the appellant the benefit of the doubt and a chance to reestablish his trustworthiness and reliability, only for the appellant to, apparently, reoffend within the year. Considering the gravity of the criminal charges and their relation to the appellant’s duties, position, and responsibilities, we agree with the administrative judge that indefinite suspension was a reasonable penalty under the circumstances. ID at 5-6; see Jones v. Department of the Interior , 97 M.S.P.R. 282, ¶ 13 (2004) (stating that, in considering the reasonableness of the penalty, the Board places primary importance upon the nature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities); see also Harding v. Department of Veterans Affairs , 115 M.S.P.R. 284, ¶ 22 (2010) (affirming the appellant’s indefinite suspension based on indictment for drug-related felonies), aff’d, 451 F. App’x 947 (Fed. Cir. 2011). Finally, the appellant argues that the administrative judge abused her discretion by not allowing him to impeach the testimony of the proposing and deciding officials. PFR File, Tab 1 at 6. The appellant seems to be referring to an exchange with the deciding official regarding the reasons for the detail assignment. The deciding official testified that the detail assignment was based on the results of a drug test that the agency administered shortly after it learned of the appellant’s October 8, 2019 indictment. HR 3 at 15:05 (testimony of the deciding official). The appellant’s counsel claimed that he was in possession of a declaration by the deciding official stating that the appellant was detailed because of the positive drug test and other (unspecified) reasons, thereby contradicting the proposing and deciding officials’ earlier testimony. HR 3 at 18:15. The administrative judge disallowed the introduction of this document. HR 3 at 22:45. 7 A petition for review must identify any procedural or adjudicatory errors and explain how they affected the outcome of the initial decision. Special Counsel v. Coffman , 124 M.S.P.R. 130, ¶ 18 n.6 (2017). Here, the appellant has not provided a copy of the declaration in question with his petition for review or described its contents with sufficient specificity for us to determine whether his substantive rights may have been prejudiced by its exclusion. See 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). Therefore, we discern no basis to disturb the initial decision based on this allegation of error. Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain9 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 10 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Conrad_NathanNY-0752-20-0225-I-1__Final_Order.pdf	2024-04-22	NATHAN CONRAD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-20-0225-I-1, April 22, 2024	NY-0752-20-0225-I-1	NP
1,706	https://www.mspb.gov/decisions/nonprecedential/Harrison_Nicholas_A_DC-1221-16-0653-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NICHOLAS ALEXANDER HARRISON, Appellant, v. SMALL BUSINESS ADMINISTRATION, Agency.DOCKET NUMBER DC-1221-16-0653-W-1 DATE: April 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Nicholas Alexander Harrison , Washington, D.C., pro se. Claudine Landry , Esquire, and Erika Virginia Hoppes , 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 that denied his request for corrective action in his individual right of action (IRA) appeal. For the reasons discussed below, we GRANT the appellant’s petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 review, VACATE the initial decision, and REMAND the case to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND On July 1, 2013, the appellant began working for the agency in an excepted-service position as a GS-11 Veterans Affairs Specialist, subject to a 2-year trial period. Initial Appeal File (IAF), Tab 10 at 14. The appellant’s primary duties included working on Boots to Business, an entrepreneurial training program for service members leaving the military and interested in starting a small business. IAF, Tab 16 at 10, 41. B.C. served as the appellant’s first -line supervisor from July 1, 2013, until September 30, 2013, and then from April 1, 2014, until the appellant’s termination during his probationary period in June 2014. Id. at 9. C.H. served as the appellant’s first-line supervisor from October 1, 2013, until March 31, 2014. Id. R.J. served as the head of the office during the duration of the appellant’s employment with the agency. Id. On or about May 15, 2014, the appellant prepared a one-page memorandum regarding the data collection processes used in Boots to Business, alleging that they violated the Paperwork Reduction Act and the Privacy Act. IAF, Tab 4 at 5, Tab 25 at 15. The appellant sent this report to R.J., B.C., and C.H. IAF, Tab 4 at 5; Hearing Compact Disc (HCD) 1 (testimony of the appellant). Then, on May 20, 2014, and June 10, 2014, the appellant met with R.J. and B.C. to discuss his concerns. IAF, Tab 4 at 5-7. On June 11, 2014, B.C. decided to terminate the appellant during his trial period, citing unacceptable conduct. IAF, Tab 16 at 111-12. The appellant’s termination went into effect on June 13, 2014. Id. at 103. The appellant filed a complaint with the Office of Special Counsel (OSC) on June 11, 2014, alleging that the agency terminated him in reprisal for making protected disclosures about the Boots to Business data collection processes violating law. IAF, Tab 4 at 10-19. OSC accepted the complaint and conducted 3 an investigation lasting approximately 1 year. Id. at 51-54. OSC notified the appellant that it closed its investigation without further action on June 20, 2016. Id. at 52-54. The appellant then filed an IRA appeal with the Board.2 IAF, Tab 1. After the administrative judge found that the appellant made a nonfrivolous allegation of Board jurisdiction, the parties were permitted to conduct discovery, and a hearing was scheduled. IAF, Tab 13 at 1. The appellant filed a motion to compel the agency to respond to written discovery, and sought subpoenas for OSC documents and the hearing testimony of witnesses. IAF, Tabs 17-19. The administrative judge denied each of these motions, citing the appellant’s failure to follow the Board’s regulations. IAF, Tab 20. The administrative judge also denied on relevancy grounds seven of the eight witnesses that the appellant requested for the hearing. IAF, Tab 24 at 4-5, Tab 29 at 3. After holding a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 39, Initial Decision (ID) at 1-20. The administrative judge found that the appellant met his burden of proving by preponderant evidence that he exhausted his administrative remedies with OSC and made two protected disclosures—the one-page memorandum that he sent to his supervisors concerning the data collection processes used in the Boots to Business program and the subsequent meetings with his supervisors on the topic.3 ID at 5-7. Such disclosures were found to be a contributing factor in the agency’s decision to terminate the appellant, as the termination decision made by B.C. occurred within days of the disclosures being made to her. ID at 8. However, the administrative judge determined that the agency proved by clear and convincing evidence that the appellant’s supervisors 2 The appellant filed his IRA appeal with the Board on June 10, 2016, which was prior to receiving the closeout letter from OSC. IAF, Tab 1, Tab 4 at 52-54. This filing was properly before the Board, as more than 120 days had passed from the date that the appellant filed his complaint with OSC, and he had yet to receive notification of further action. IAF, Tab 4 at 10; see 5 U.S.C. § 1214(a)(3)(B). 3 The administrative judge found that the appellant did not exhaust his administrative remedies with OSC on one other alleged protected disclosure. ID at 5-7. 4 had little motivation to retaliate against him and that his termination was based on performance and conduct issues. ID at 8-20. In particular, regarding the agency’s contention that it terminated the appellant because of his unacceptable performance, the administrative judge relied in part on B.C.’s and C.H.’s hearing testimony claiming that the appellant had communication issues, failed to demonstrate basic project management skills, and did not accept feedback, adhere to timelines, and work well with colleagues in the office. ID at 14-19. The appellant’s petition for review followed, where he argues that, because the administrative judge denied his motion to compel and subpoena requests, he was unable to provide evidence showing a motivation to retaliate against him and to rebut the agency’s assessment of his performance. Petition for Review (PFR) File, Tab 1 at 8-10, Tab 4 at 4-5. The appellant also claims that the administrative judge improperly disapproved the witnesses that he requested that would have testified to his performance. PFR File, Tab 1 at 8-10, Tab 4 at 5-6. The agency responded in opposition, and the appellant filed a reply. PFR File, Tabs 3-4. ANALYSIS The administrative judge properly denied the appellant’s motion to compel and request for subpoenas. The Board’s regulations at 5 C.F.R. § 1201.73(c) outline the requirements for a motion to compel. A party’s failure to follow these requirements provides adequate grounds for an administrative judge to deny any such motion. 5 C.F.R. § 1201.74(a); see Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 12 (2010) (noting that an administrative judge may deny a motion to compel discovery if a party fails to comply with 5 C.F.R. § 1201.73). Here, the appellant’s motion to compel contained several shortcomings. First, the appellant did not include a copy of the discovery requests and a statement showing that the information he sought is discoverable, as required by 5 C.F.R. § 1201.73(c)(1)(i). IAF, Tab 17. Further, the appellant failed to indicate that he made a good faith 5 effort to resolve the discovery issues with the agency prior to filing his motion, as required by 5 C.F.R. § 1201.73(c)(1)(iii). Id. Therefore, the administrative judge’s denial of the appellant’s motion was appropriate. See Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 17 (2016) (upholding the administrative judge’s denial of the motions to compel, partly because neither party met and conferred in good faith to resolve discovery issues before filing); McDaniel v. U.S. Postal Service , 33 M.S.P.R. 647, 650 (stating that a basis to deny a motion to compel exists when a copy of the discovery requests are not included with the motion), aff’d, 835 F.2d 871 (Fed. Cir. 1987) (Table). Similarly, 5 C.F.R. § 1201.81 contains the requirements for subpoenas. A request for a subpoena must be supported by a showing that the evidence sought is directly material to the issues involved in the appeal. 5 C.F.R. § 1201.81(c). If a requesting party fails to comply with this requirement, the administrative judge may deny the request. See Nortz v. Department of Veterans Affairs , 47 M.S.P.R. 526, 532 (1991) (stating that a request for a subpoena must comply with 5 C.F.R. § 1201.81); Peeler v. Department of the Navy , 18 M.S.P.R. 487, 488 (1983) (finding no error in the denial of an appellant’s request for subpoenas because the request was not specific about the expected content nor was there a showing how the expected testimony was relevant or material). In the instant appeal, the appellant’s request for subpoenas did not outline the relevancy of any of the documents or anticipated testimony of the listed witnesses. IAF, Tabs 18-19. Moreover, the appellant failed to follow the portions of 5 C.F.R. § 1201.73(c) that apply to subpoena requests, such as providing a copy of the request sent to the nonparty and a statement on the discussion of the motion with the nonparty outlining the good faith effort made to resolve the dispute. Id. The appellant did not cure each of the defects when he filed his motion for reconsideration. IAF, Tab 27 at 4-6. Thus, the administrative judge properly denied the appellant’s subpoena requests. See Gaumnitz v. Department of Health and Human Services, Social Security Administration , 26 M.S.P.R. 283, 285 (1985) (outlining how the 6 party requesting a subpoena must be able to show general relevance, reasonable scope, and materiality of the evidence sought). The administrative judge erred in excluding some of the witnesses that the appellant requested for the hearing. Because the appellant established a prima facie case of reprisal for whistleblowing, the agency was given the opportunity to prove, by clear and convincing evidence, that it would have terminated him in the absence of his protected whistleblowing disclosures. ID at 8-20; see 5 U.S.C. § 1221(e); Hugenberg v. Department of Commerce , 120 M.S.P.R. 381, ¶ 10 (2013). In determining whether an agency meets its burden, the Board considers the relevant facts and circumstances, including: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of 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. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). As noted above, in denying the appellant’s request for corrective action, the administrative judge found that the agency proved by clear and convincing evidence that it terminated him due to his performance and conduct and not because of his whistleblowing disclosures. ID at 12-20. In reaching that conclusion, the administrative judge relied on her analysis of the so-called Carr factors set forth above. In Whitmore v. Department of Labor , 680 F.3d 1353, 1368-70 (Fed. Cir. 2012), the U.S. Court of Appeals for the Federal Circuit determined that a Board administrative judge erred by excluding witnesses that could have called into question the evidence used by the agency to address the Carr factors. Additionally, the court held that, “ evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the 7 pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion. ” Id. at 1368. Unlike his request for subpoenas, the appellant followed the instructions in the Hearing Order and provided proffers explaining the relevancy of the anticipated testimony for each of his requested witnesses for the hearing. IAF, Tab 13 at 2; Tab 24 at 4-5. The administrative judge denied the appellant’s request for seven of these eight witnesses, finding that their testimony would have no relevancy to the issues in the appeal. IAF, Tab 29 at 3. Beyond himself, the appellant was permitted to call S.F. for testimony on a limited topic, along with one other witness, R.J., that was not on his filed written list but was requested during the prehearing conference. Id. On petition for review, the appellant takes issue with these witness rulings, claiming that he was denied a fair hearing because he could not introduce evidence to rebut the agency’s reasons for terminating him. PFR File, Tab 1 at 8-9. In disputing an evidentiary ruling of an administrative judge, an appellant must prove that such an error caused substantial harm or prejudice to his rights, which could have affected the outcome of the case. Curtin v. Office of Personnel Management , 846 F.2d 1373, 1378-79 (Fed. Cir. 1988); Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984); see Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 19 (2013) (discussing how the Board should not unduly restrict evidence in whistleblower claims). A review of the record reflects that the administrative judge properly denied the appellant’s request for G.G., A.K., K.M., R.S., and S.S. to testify. The proffer of these witnesses does not demonstrate any relevancy to the material issues in this appeal. IAF, Tab 24 at 4-5; see Middleton v. Department of Veterans Affairs , 64 M.S.P.R. 294, 297 (1994) (holding that an administrative judge has wide discretion to exclude witnesses when it has not been shown that their testimony would be relevant, material, and not repetitious); 5 C.F.R. § 1201.41(b)(10). 8 However, the administrative judge did err in excluding the testimony of the other listed witnesses, B.G. and R.P., as the appellant’s detailed proffers claim that each supervised the appellant in some capacity and would be able to testify to his performance in the workplace. IAF, Tab 24 at 4-5. It was an error to deny S.F.’s testimony on this topic as well. Id. at 4. The appellant claims that S.F. and R.P. served as acting supervisors over him and managed his day-to-day work when his first-line supervisor, B.C., was out of the office. Id. at 4-5. He also states that B.G. was asked by the head of the office, R.J., to “informally supervise” him on the focus group project, which is one of the projects cited by B.C. and C.H. as an instance of the appellant’s poor performance and conduct. IAF, Tab 16 at 114, Tab 24 at 4; HCD 2 (testimony of B.C.). As such, the anticipated testimony regarding the appellant’s work performance from these three witnesses that supervised him in some capacity, which was proffered to counter the position of the appellant’s permanent supervisors who did testify, is relevant to the dispositive determination in this case. Excluding the testimony of these witnesses effectively prevented the appellant from offering relevant evidence into the record to contradict the evidence relied on by the agency in meeting its clear and convincing standard. Such an error warrants a remand of this appeal for additional witness testimony to be taken. See Whitmore, 680 F.3d at 1368-70; Hugenberg, 120 M.S.P.R. 381, ¶ 18 (remanding an IRA appeal for additional hearing testimony, as the administrative judge improperly excluded the appellant’s requested witnesses). ORDER For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication. The administrative judge shall take the 9 additional testimonial evidence as outlined herein. The factual findings and conclusions shall be reexamined accordingly and a new initial decision issued. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Harrison_Nicholas_A_DC-1221-16-0653-W-1__Remand_Order.pdf	2024-04-22	NICHOLAS ALEXANDER HARRISON v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. DC-1221-16-0653-W-1, April 22, 2024	DC-1221-16-0653-W-1	NP
1,707	https://www.mspb.gov/decisions/nonprecedential/Brundage_Sandra_L_DC-0752-17-0358-I-2__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SANDRA LYNN BRUNDAGE, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DC-0752-17-0358-I-2 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sandra Lynn Brundage , Suffolk, Virginia, pro se. Casey Keppler , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal for excessive absence. On petition for review, the appellant argues that the administrative judge did not consider all of the examples she provided in which she claimed that agency managers did not support her. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the appellant failed to prove that a hostile working environment caused her absences, we AFFIRM the initial decision. Because the administrative judge did not address the appellant’s assertion raised below and in her petition for review that the agency’s actions and hostile work environment caused her absences, we do so here. Initial Appeal File (IAF), Tab 1 at 6; Petition for Review File, Tab 3 at 3, Tab 7 at 4. The Board has held that, when an agency makes an employee’s working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign or retire, the resignation or retirement may be involuntary. Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996); Heining v. General Services Administration, 68 M.S.P.R. 513, 520 (1995). In Gerges v. Department of the Navy, 89 M.S.P.R. 669, ¶¶ 4-5, 8, 20 (2001), the Board applied the same standard to determine whether, in a removal action for excessive unauthorized absence, the agency’s pre-removal actions constituted harassment so severe as to compel a reasonable person in the employee’s position to absent himself and to remain absent. Applying that standard here, we find that the agency’s pre-removal actions did not create a hostile working environment that compelled the appellant’s absence from the workplace. 3 The appellant submitted numerous examples of agency actions that she alleges created a hostile working environment. See Brundage v. Department of the Air Force, MSPB Docket No. DC-0752-17-0358-I-2, Appeal File (I-2 AF), Tabs 13, 42, 55. For example, the appellant alleged that the agency discouraged her forward thinking and “shot down” her suggestions, causing her anxiety and, in turn, causing her to make mistakes. I-2 AF, Tab 13 at 52. However, the agency had only asked the appellant to make her suggestions to her supervisors before she took them outside of her office. Id. Additionally, the appellant complained about being denied training. Id. at 76. However, the agency explained to the appellant why her training requests were denied. Id. That explanation suggested to the appellant that she should “concentrate [her] efforts on really knowing [her] job” and working on certain specific areas. Id. We find that this statement was not hostile. The appellant also challenged her appraisal. Id. at 108, 117. Ultimately, that challenge resulted in an agreement to raise the appellant’s appraisal and give her a time-off award. Id. at 130-31. Additionally, the agency afforded the appellant advanced annual and donated leave, id. at 46-48, and twice engaged in the reasonable accommodation process with the appellant, IAF, Tab 72 at 17; see IAF, Tab 7 at 129-30, 135-36. We find that the appellant has not shown that the agency created a hostile working environment that would have compelled a reasonable person in the appellant’s position to absent herself from the workplace. 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 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 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the 6 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of 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. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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.	Brundage_Sandra_L_DC-0752-17-0358-I-2__Final_Order.pdf	2024-04-22	SANDRA LYNN BRUNDAGE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-17-0358-I-2, April 22, 2024	DC-0752-17-0358-I-2	NP
1,708	https://www.mspb.gov/decisions/nonprecedential/Jarrett_Kevin_T_CH-0845-20-0306-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KEVIN TYRELL JARRETT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0845-20-0306-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin Tyrell Jarrett , Indianapolis, Indiana, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction because the Office of Personnel Management (OPM) had not issued a final decision. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we DENY the petition for review as the administrative judge correctly found that, at the time of the initial decision, the Board lacked jurisdiction over the appeal and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Because OPM has now issued a reconsideration decision, which affords the Board jurisdiction, we FORWARD this matter to the regional office for docketing as a new appeal. The appellant filed a Board appeal, alleging that he called OPM many times regarding the calculation of his annuity benefits and was informed that he owes $12,000. Initial Appeal File (IAF), Tab 1 at 5. He disagrees with OPM’s calculation of the debt, as it was based on the retirement date of December 14, 2018, which he considers to be incorrect. Id. The administrative judge noted that Board may not have jurisdiction over the appeal because it appeared that OPM had not issued a final decision regarding the overpayment of the appellant’s annuity benefits under the Federal Employees’ Retirement System (FERS). IAF, Tab 2 at 1-2. She ordered the appellant to file evidence and argument on the jurisdictional issue. Id. at 2. The appellant did not respond. The administrative judge issued an initial decision finding that, “[a]bsent a final decision concerning a retirement matter,” the Board lacked jurisdiction over the appeal. IAF, Tab 3, Initial Decision (ID) at 3-4. The appellant has filed a petition for review, alleging that, in a prior appeal, he was promised that he would receive a lump sum annuity benefit and2 that his retirement would become effective on June 1, 2016, neither of which took place.2 Petition for Review (PFR) File, Tab 1 at 10. He provides a June 15, 2020 reconsideration decision from OPM finding that he was overpaid $12,071 in FERS annuity benefits because they were not reduced to account for his entitlement to Social Security Disability Insurance Benefit. Id. at 4-8. OPM has filed a response. PFR File, Tab 4. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). The Board has jurisdiction over OPM determinations affecting an individual’s rights or interests under FERS only after OPM has issued a final decision. 5 C.F.R. § 841.308. An appealable OPM decision may take the form of a final decision on reconsideration of an initial determination or a final decision without the opportunity for reconsideration. 5 C.F.R. §§ 841.306-841.308. Here, the administrative judge properly found that the Board did not have jurisdiction over the appeal because OPM had not issued a final decision regarding the overpayment of the appellant’s annuity benefits at the time the initial decision was issued.3 ID at 3-4; see 5 U.S.C. § 8461(e) (permitting appeals to the Board from administrative actions or orders affecting rights under FERS); 2 The appellant’s previous appeal was Jarrett v. Office of Personnel Management , MSPB Docket No. CH-844E-18-0402-I-1. 3 The administrative judge cited to regulations and cases relevant to establishing jurisdiction over a retirement matter under the Civil Service Retirement System (CSRS). ID at 3. However, we find no reason to disturb the initial decision because such an error does not affect the outcome of the appeal. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 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 5 C.F.R. § 841.308 (stating that a party whose rights and interests under FERS are affected by an OPM final decision may request the Board to review OPM’s decision). However, OPM has now issued a reconsideration decision in this matter. PFR File, Tab 1 at 4-8. The appellant’s June 23, 2020 submission, which contains a copy of OPM’s June 15, 2020 reconsideration decision, was filed with the Board within 30 days of the date of that decision. Id. Thus, we find that the appellant’s request to appeal OPM’s reconsideration decision is timely. See 5 C.F.R. § 1201.22(b) (stating that an appeal must be filed with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later). Accordingly, we deny the appellant’s petition for review and forward his June 23, 2020 submission to the regional office for docketing as a new appeal of OPM’s June 15, 2020 reconsideration decision. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you5 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Jarrett_Kevin_T_CH-0845-20-0306-I-1__Final_Order.pdf	2024-04-22	KEVIN TYRELL JARRETT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-20-0306-I-1, April 22, 2024	CH-0845-20-0306-I-1	NP
1,709	https://www.mspb.gov/decisions/nonprecedential/Infinger_Winfred_A_AT-0831-19-0539-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WINFRED A. INFINGER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0831-19-0539-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Winfred A. Infinger , The Villages, Florida, pro se. Jane Bancroft , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the Office of Personnel Management’s (OPM) reconsideration decision denying the appellant’s request to revoke his waiver of his military retired pay and separate his military retired pay from his Civil Service Retirement System (CSRS) annuity. For the reasons discussed below, we GRANT the appellant’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). petition for review, VACATE the initial decision, and REVERSE OPM’s reconsideration decision because the determination regarding revocation of the waiver of military retired pay rests with the military, and OPM exceeded its authority when it determined that the appellant could not waive his entitlement to military retired pay. BACKGROUND The appellant retired from the U.S. Air Force (USAF) on July 31, 1969, after 22 years, 6 months, and 15 days of service. Initial Appeal File (IAF), Tab 7 at 27-28. He entered on duty with the U.S. Postal Service (USPS) on January 24, 1970, and was employed with the agency until he retired under CSRS effective July 1, 1989, with just over 19 years and 5 months of creditable civilian service.2 IAF, Tab 7 at 37, Tab 8 at 17-18, 23-25. At the time of his retirement from the USPS, the appellant was 61 years, 4 months, and 12 days of age. IAF, Tab 8 at 23. Because the appellant had not yet reached 62 years of age and had not completed 20 years of service at the time of his retirement, he was not eligible for immediate retirement based solely on his Federal civilian service. See 5 U.S.C § 8336(a)-(b) (noting that, in order for a covered employee to be eligible for immediate retirement, he must be at least 55 years of age with 30 years of creditable civilian service, or at least 60 years of age with 20 years of creditable civilian service); see also Johnson v. Office of Personnel Management , 2 There appears to be some inconsistency concerning exactly how much creditable service the appellant had at the time he retired. The retirement record computation sheet OPM provided below reflects that the appellant had 19 years, 5 months, and 7 days of creditable service at the time he retired. IAF, Tab 7 at 37. OPM’s initial and reconsideration decisions reflect the same service total, and clarify that 2 of the days are credit for unused sick leave. Id. at 12, 17. The initial decision reflects the same total. IAF, Tab 15, Initial Decision at 2. However, in its submission to the administrative judge, OPM asserted that the appellant had 19 years, 5 months, and 2 days of creditable service. IAF, Tab 7 at 5. Nevertheless, we need not resolve the apparent discrepancy because either figure still falls short of the 20 years of creditable service required for eligibility for an immediate retirement, without including any military service.2 102 M.S.P.R. 589, ¶ 7 (2006). Instead, he gained such eligibility by waiving his military retired pay and thus receiving credit toward his CSRS annuity for his 22 years, 6 months, and 15 days of military service. IAF, Tab 7 at 24-27; see 5 C.F.R. § 831.301(c); Johnson, 102 M.S.P.R. 589, ¶ 7. In a number of correspondences dating back to November 2004, the appellant requested to revoke his waiver of his military retired pay and to separate his military retired pay from his CSRS annuity. IAF, Tab 7 at 21-23, 49. OPM informed the appellant that, because he was under 62 years of age at the time he retired and did not have the requisite 20 years of Federal civilian service at that time, his military time was necessary for him to receive a CSRS annuity and, therefore, he could not revoke his waiver of military retired pay. Id. at 21-23. In an initial decision dated March 7, 2018, OPM formally denied the appellant’s request to separate his military retired pay from his CSRS annuity. Id. at 17. After the appellant requested reconsideration of that decision, OPM issued a final decision affirming its initial decision. Id. at 15-16. OPM subsequently rescinded the reconsideration decision3 and issued a new reconsideration decision concluding that the appellant would not have been entitled to CSRS benefits based on the amount of covered Federal civilian service he had at the time of his retirement, and, therefore, he could not revoke his waiver of his retired military pay and separate his military service pay from his CSRS annuity. Id. at 12-13. The appellant subsequently filed the instant Board appeal challenging OPM’s reconsideration decision. IAF, Tab 1. In his initial appeal, the appellant also argued that his former employing agency, USPS, incorrectly calculated his amount of creditable service, and provided a copy of a service award certificate 3 The appellant filed a Board appeal of the rescinded reconsideration decision, which the administrative judge dismissed for lack of Board jurisdiction. Infinger v. Office of Personnel Management , MSPB Docket No. AT-0831-18-0777-I-1, Tab 9, Initial Decision. On April 22, 2024, the Board denied the appellant’s petition for review of the initial decision. Infinger v. Office of Personnel Management , MSPB Docket No. AT- 0831-18-0777-I-1, Final Order at 2 (Apr. 22, 2024). 3 reflecting that he had 29 years, 5 months, and 7 days of service with the agency, and 47 years, 7 months, and 8 days of creditable civilian service after including his military service. IAF, Tab 1 at 1; Tab 12 at 1. Additionally, the appellant argued that he should have been provided with “combat service time” when he retired, and stated that the only reason he retired when he did was to care for his four sons and his wife, who was suffering from terminal kidney cancer. IAF, Tab 1 at 1. The appellant did not request a hearing.4 The administrative judge subsequently issued an initial decision based on the written record, affirming OPM’s reconsideration decision. IAF, Tab 15, Initial Decision (ID). He concluded that OPM correctly determined that the appellant waived his right to military retired pay in order to qualify for a CSRS annuity, and consequently, the appellant could not revoke his waiver decision. ID at 1-4. The appellant has filed a petition for review and a supplement to his petition for review. Petition for Review (PFR) File, Tabs 1, 3. The agency has filed a response to the petition for review, and the appellant has not filed a reply. PFR File, Tab 7. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant again requests to revoke his waiver of his military retired pay, and appears to indicate that he does not want his CSRS annuity. PFR File, Tab 1 at 1. The appellant also restates his argument that, at the time of his retirement, his former employing agency informed him that he had 29 years, 5 months, and 7 days of Federal civilian service and consequently requests that he be credited with the 6 months and 23 days of Federal service necessary for entitlement to a CSRS annuity based solely on his Federal civilian service, and he attaches a copy of the USPS service award certificate. PFR File, Tab 1 at 1-2, Tab 3 at 1. 4 On review, the appellant acknowledges the administrative judge’s assertion that he did not request a hearing, but notes that he did not do so because he would not be physically able to attend a hearing due to his disability. Petition for Review File, Tab 1 at 1. 4 An appellant bears the burden of proving his entitlement to retirement benefits by preponderant evidence. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)(ii). Pursuant to 5 U.S.C. § 8332(c)(1)(B), a Federal employee covered under CSRS generally is entitled to credit, for purposes of computing a basic retirement annuity, for “each period of military service performed after December 31, 1956, and before the separation on which the entitlement to annuity under this subchapter is based, only if a deposit (with interest, if any) is made with respect to that period, as provided in section 8334(j) . . . .”5 However, as detailed below, section 8332(c)(2) provides that, except under certain circumstances, an employee usually cannot receive both military and civilian retirement service credit for the same periods. See Forsythe v. Office of Personnel Management , 85 M.S.P.R. 593, ¶ 9 (2000). Section 8332(c)(2) states the following: If an employee or Member is awarded retired pay based on any period of military service, the service of the employee or Member may not include credit for such period of military service unless the retired pay is awarded— (A) based on a service-connected disability— (i) incurred in combat with an enemy of the United States; or (ii) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 1101 of title 38; or (B) under chapter 1223 of title 10 (or under chapter 67 of that title as in effect before the effective date of the Reserve Officer Personnel Management Act). 5 U.S.C. § 8332(c)(2). Under 5 U.S.C. § 8336(a), an employee who is separated from the service after becoming 55 years of age and completing 30 years of service is entitled to a CSRS annuity, and under subsection 8336(b), an employee who is separated from the service after becoming 60 years of age and completing 20 years of service is 5 “Military service” means honorable active service in the armed forces. 5 U.S.C. § 8331(13). It is undisputed that the appellant’s military service qualifies under this definition.5 entitled to an annuity. Additionally, as noted above, an employee entitled to military retired pay who would otherwise be ineligible for an immediate retirement under 5 U.S.C. § 8336 may nonetheless still qualify for a CSRS retirement annuity if he executes a waiver of his right to military retired pay, adding his military service to his Federal civilian service for annuity computation purposes in order to meet the eligibility requirements identified above. 5 C.F.R. § 831.301(c). As the administrative judge correctly noted, the appellant did not qualify for a CSRS annuity based on his civilian service alone and therefore needed his retired military service included with his Federal civilian service in order to be entitled to a CSRS annuity. 5 C.F.R. § 831.301; ID at 3. OPM exceeded its authority when it concluded that the appellant was “permanently bound” to his election to waive his military retired pay and could not revoke that decision. Although the administrative judge correctly concluded that the appellant needed his military retired service included with his Federal civilian service to obtain entitlement to a CSRS annuity, it does not follow that OPM was correct in denying the appellant’s request to revoke his waiver of his military retired pay. In addressing a similar set of facts in Black v. Office of Personnel Management , 37 M.S.P.R. 544 (1988), the Board agreed with OPM’s concession that it lacked the authority to make a determination regarding an appellant’s request to revoke his waiver of his military retired pay, and instead, the authority to make that determination rested with the military component responsible for administering the military retired pay. Black, 37 M.S.P.R. at 545-47. As is the case here, the appellant in Black retired from his Federal civilian position before obtaining 20 years of Federal civilian service, and before reaching 62 years old, and therefore his military service was necessary to establish his entitlement to a CSRS annuity. Id. at 545. After determining that he might be better off financially if he remained in the military retirement system, the appellant in Black filed a request with OPM to revoke his waiver of his military retired pay. Id. OPM6 denied the appellant’s request to revoke his waiver, noting that his military service was necessary to establish entitlement to a CSRS retirement, and affirmed the denial in a reconsideration decision. Id. After the appellant appealed OPM’s decision to the Board, OPM moved to dismiss the appeal for lack of jurisdiction, arguing that it had erred in concluding that it had the authority to determine that the appellant could not revoke his waiver of his military retired pay, acknowledging instead that this authority rested solely with the Department of the Air Force—the military component with which the appellant completed his military service. Id. at 545-46. Consequently, OPM rescinded its initial and reconsideration decisions, divesting the Board of jurisdiction over the appeal, and the Board affirmed the initial decision dismissing the appeal for lack of jurisdiction on that basis. Id. at 546-47. Similarly, in Johnson, the Board applied the reasoning in Black to modify the initial decision in that case to make clear that OPM did not have the authority to make a determination regarding the appellant’s ability to revoke his waiver of military retired pay, and thus OPM erred in its reconsideration decision when it purported to determine that the appellant’s waiver was irrevocable. Johnson, 102 M.S.P.R. 589, ¶ 9. Consistent with Black, the Board instructed Mr. Johnson to petition the Department of the Army to seek revocation of his waiver.6 Id. Based on the Board’s decisions in Black and Johnson, we conclude that OPM did not have the authority to determine that the appellant was “permanently bound” to his election to waive his military retired pay and could not revoke that decision, 6 The ultimate matter at issue in Johnson concerned the apportionment of the appellant’s former spouse’s share of his annuity, of which the waiver revocation issue only formed a part of the basis for the appellant’s OPM and Board appeals. Johnson, 102 M.S.P.R. 589, ¶¶ 2-5, 9. Consequently, for the purpose of resolving the apportionment matter, the Board acknowledged that “for the meantime,” OPM and the Board could rely on the fact that the appellant’s waiver remained in effect and had not been revoked. Id., ¶ 9. Unlike in Johnson, however, in the instant case, OPM’s erroneous determination that the appellant is “permanently bound” to his election to waive his military retired pay forms the entire basis of the appellant’s appeal to OPM, and a determination on this matter is necessary for resolution of this appeal. IAF, Tab 7 at 13; see Black, 37 M.S.P.R. at 545-46; cf. Johnson, 102 M.S.P.R. 589, ¶ 9. 7 and thus erred when it made that determination in its final decision. See IAF, Tab 7 at 12-14. Regarding the appellant’s argument that his former employing agency incorrectly calculated his amount of creditable service, as the administrative judge noted, OPM did not address this argument in its initial or reconsideration decisions, and therefore this matter is not properly before the Board. IAF, Tab 1 at 1; Tab 12 at 1-2; PFR File, Tab 1 at 1-2; Tab 3 at 1; ID at 4 n.2; see Smith v. Office of Personnel Management , 114 M.S.P.R. 395, ¶ 8 (2010) (noting that, generally, the Board has jurisdiction over OPM determinations affecting an appellant’s rights or interests under CSRS only after OPM has issued a final or reconsideration decision). If the appellant so desires, he may seek a decision from OPM regarding the calculation of his civilian service, and if he is dissatisfied with OPM’s final decision on that matter he may file a new appeal with the Board consistent with law and regulation. See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110 . We note, however, that the undisputed record reflects that the appellant was born in 1928 and retired from his position with the USPS in 1989 at 61 years of age. IAF, Tab 8 at 13, 23. The undisputed record also reflects that, prior to beginning his Federal civilian service with USPS in 1970, the appellant served with the U.S. Air Force from 1947 to 1969, for a total of 22 years, 6 months, and 15 days. IAF, Tab 7 at 28-29, 31-36. This would appear to call into question the accuracy of the USPS service award certificate the appellant provided reflecting that he had 29 years, 5 months, and 7 days of Federal civilian service, because that timeline would have required the appellant to have retired from the USPS at 71 years of age in 1999, which is not supported by the record. See, e.g., IAF, Tab 8 at 13-14, 23; Tab 11 at 2. Finally, although not addressed in the initial decision, the appellant referred to “combat service time” he completed while in the military in his initial appeal filing and appeared to suggest that he was wrongfully deprived of credit in some manner for that service. IAF, Tab 1 at 1. Although not entirely clear, the8 reference to “combat service time” may be intended as a reference to combat-related special compensation (CRSC) benefits. 5 U.S.C. § 8332(c)(2) provides a limited exception to the requirement that an employee waive his entitlement to military retired pay in order to receive an annuity in circumstances where a portion of an annuitant’s military retired pay is “based on a service-connected disability” that was “incurred in combat with an enemy of the United States,” or “caused by an instrumentality of war and incurred in line of duty during a period of war[.]” See 5 C.F.R. § 831.301(a); Swan v. Office of Personnel Management , 93 M.S.P.R. 622, ¶¶ 8-9 (2003). Although OPM addressed this potential claim in a submission to the administrative judge, it did not address it in its initial or reconsideration decisions. IAF, Tab 7 at 7-8, 12-14, 17. Therefore, to the extent the appellant’s reference to “combat service time” is intended as a claim that he is entitled to CRSC benefits, this matter is not properly before the Board. If the appellant so desires, he may also seek a decision on this matter from OPM and, if he is dissatisfied with OPM’s decision, file a new appeal with the Board consistent with law and the Board’s regulations. See 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110 . For the foregoing reasons, we vacate the initial decision and reverse OPM’s reconsideration decision based on the fact that OPM exceeded its authority when it determined that the appellant could not revoke his waiver of his military retired pay.7 7 We caution that it is unclear what effect successful revocation of the appellant’s waiver of his military retired pay would have on his CSRS annuity, and the appellant may wish to consult with an individual well-versed in retirement benefits before seeking revocation from the military component. 9 NOTICE OF APPEAL RIGHTS8 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: 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.10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any11 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s12 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Infinger_Winfred_A_AT-0831-19-0539-I-1__Final_Order.pdf	2024-04-22	WINFRED A. INFINGER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-19-0539-I-1, April 22, 2024	AT-0831-19-0539-I-1	NP
1,710	https://www.mspb.gov/decisions/nonprecedential/Simon_Eric_J_CH-0845-18-0088-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ERIC J. SIMON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and PAMELA A. BREWER Intervenor.DOCKET NUMBER CH-0845-18-0088-I-1 DATE: April 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Eric J. Simon , Monclova, Ohio, pro se. Dawn E. Sanderson , Esquire, Maumee, Ohio, for the intervenor. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed as settled his appeal of a final decision of the Office of Personnel Management (OPM) concerning an overpayment under the Federal Employees’ Retirement System (FERS). Additionally, the appellant’s former spouse has requested to intervene. For the reasons discussed below, we GRANT her request to intervene, GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Central Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND In 2013, the appellant and his former spouse obtained a state court decree dividing their martial property, which provided for his former spouse to receive “a pro-rata share of [his] gross monthly [FERS] annuity.” Initial Appeal File (IAF), Tab 6 at 4-7. The appellant received a basic annuity and an annuity supplement. Id. at 8-12. In July 2016, OPM determined that, when a qualifying state court domestic relations order awarded a former spouse a portion of an annuitant’s gross monthly annuity, OPM must deduct the apportionment from all monthly annuity payments, including the basic annuity and any annuity supplement, even if the order did not specifically address the annuity supplement. IAF, Tab 6 at 24-25, Tab 11 at 4. OPM applied its policy retroactively and prospectively. IAF, Tab 6 at 24-25, Tab 11 at 4. In accordance therewith, OPM issued the appellant a February 2, 2017 reconsideration decision, finding that he had improperly been paid his former spouse’s apportionment of his annuity supplement, resulting in a $4,878.38 overpayment, and set a repayment schedule of 36 monthly installments of $135.51. IAF, Tab 6 at 24-26. The appellant filed an appeal of OPM’s decision, which the parties resolved by settlement agreement. IAF, Tabs 1, 8, 10. In pertinent part, the agreement provided that the appellant would withdraw his appeal in exchange for OPM2 accepting repayment of the overpayment in 97 monthly installments of $50.00 and a final installment of $28.38, with no interest charged during this period. IAF, Tab 11 at 5. Pursuant to a handwritten provision in the settlement agreement inserted by the appellant, OPM further agreed that, “IN THE EVENT OPM IS DEEMED WRONG ON DISBERSMENT OF [the appellant’s] FERS SUPPLEMENT OR FERS BACKPAY . . . [the appellant] WILL BE MADE WHOLE.” Id. (spelling and ellipses as in the original). The appellant signed the agreement on January 30, 2018. Id. On February 5, 2018, OPM’s Office of Inspector General (OIG) issued a report, concluding that OPM’s act of apportioning supplemental annuities pursuant to its July 2016 policy change was unlawful.2 IAF, Tab 11 at 3-30. The appellant’s case was one of the three examples OIG included in the report to highlight the impact that the policy had on annuitants. Id. at 8. OPM disagreed with the recommendations of its OIG. Id. at 20-23. On February 13, 2018, the appellant submitted into the record of this appeal the OIG’s report and a partially executed copy of the settlement agreement, which bore only his signature and where he highlighted the handwritten provision. IAF, Tab 11. The following day, on February 14, 2018, the agency received, signed, and entered the settlement agreement into the record, without addressing the appellant’s filing. IAF, Tab 10 at 4-5. The administrative judge determined that the parties freely entered into the settlement agreement, that it was lawful on its face, and that the parties intended to enter it into the record for enforcement purposes. IAF, Tab 12, Initial Decision (ID) at 1-3. He then issued an initial decision dismissing the appeal as settled. Id. 2 In the report, OIG recommended that OPM cease implementing its policy change; reverse any retroactive and prospective decreases to supplemental annuities when the qualifying state court order did not expressly provide for such apportionment; and consider whether OPM had a legal obligation to notify the public of the policy change. IAF, Tab 11 at 20-23.3 The appellant has filed a petition for review, to which OPM has responded.3 PFR File, Tabs 1, 8. The appellant has filed a reply, which we have not considered given its apparent untimeliness. PFR File, Tab 10. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant argues that the overpayment is unlawful because he was not overpaid and, even if he were overpaid, he is entitled to a waiver. PFR File, Tab 1 at 1. Given the terms of the settlement agreement, his arguments may be construed as a petition for enforcement of the handwritten provision or a challenge to the validity of the agreement, which enforced the overpayment but adjusted his repayment schedule. Id.; IAF, Tab 10 at 5. Regardless, the Board must address the apparent invalidity of the settlement agreement. A challenge to the validity of the settlement agreement may properly be addressed on petition for review of the initial decision dismissing the appeal as settled. Hazelton v. Department of Veterans Affairs , 112 M.S.P.R. 357, ¶ 8 (2009). A settlement agreement is a contract and may be set aside or voided only based on certain limited grounds, including, inter alia, fraud, misrepresentation by the agency, or a mutual mistake of material fact under which both parties acted. Vance v. Department of the Interior , 114 M.S.P.R. 679, ¶ 12 (2010); Hazelton, 112 M.S.P.R. 357, ¶ 11. The administrative judge determined that the settlement agreement was lawful. ID at 2. For the reasons discussed below, we disagree and find that the settlement agreement is invalid.4 3 The appellant also submits various documents on review, only one of which was not entered into the record below—an OPM reconsideration decision issued to another annuitant waiving his overpayment. PFR File, Tab 1 at 3-46. We need not consider that document in light of our decision to remand this matter, but the administrative judge may consider it on remand. 4 The agency argues on review that the settlement agreement was valid because the appellant’s February 13, 2018 pleading was not a sufficient revocation of his counteroffer, which the agency accepted on February 14, 2018. PFR File, Tab 8 at 5-6; IAF, Tabs 10-11. Even if true, we nevertheless find the settlement agreement invalid for separate reasons.4 Part of OPM’s inducement for obtaining the appellant’s waiver of his Board appeal rights—promising to make him “whole” in the event that the overpayment was “deemed wrong”—was invalid consideration.5 IAF, Tab 10 at 5. To have an enforceable contract, there must be consideration, i.e., a performance or a return promise that must be bargained for and does not involve performance of a preexisting duty. Black v. Department of Transportation , 116 M.S.P.R. 87, ¶ 17 (2011); see Restatement (Second) of Contracts, § 71 (1981) (stating that “[i]n the typical bargain, the consideration and the promise bear a reciprocal relation of motive or inducement: the consideration induces the making of the promise and the promise induces the furnishing of the consideration”). OPM had a preexisting legal duty to return the apportioned amount from the appellant’s annuity supplement if the overpayment determination was unlawful or improper.6 See 5 U.S.C. § 8421 (listing the requirements for an entitlement to an annuity supplement); Edney v. Office of Personnel Management , 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that if an applicant is entitled to a retirement benefit, then OPM is obligated to provide the benefit; and, if she is not, OPM is obligated to deny the benefit); see generally Office of Personnel Management v. Richmond , 496 U.S. 414, 416, 434 (1990) (holding that the Government cannot be estopped from denying benefits not otherwise permitted by law, even if the claimant was denied monetary benefits because of his reliance on the mistaken advice of a Government official). 5 In construing a contract, the Board looks to the terms of the agreement to determine the parties’ intent at the time they contracted. Sweet v. U.S. Postal Service , 89 M.S.P.R. 28, ¶ 9 (2001). Upon such review, we find that any reasonable interpretation of the make whole term in the handwritten provision would necessarily include returning the apportioned annuity supplement. IAF, Tab 10 at 5. 6 Ironically, should the handwritten provision become applicable because the overpayment was found unlawful or improper, that mutual mistake of law would be another basis for invalidating the settlement agreement. Farrell v. Department of the Interior, 86 M.S.P.R. 384, ¶ 8 (2000) (explaining that a provision in a settlement agreement must be set aside if both parties acted under a mutual mistake as to the lawfulness of the provision at issue and the provision was material to the agreement). We do not render any judgment as to the legality of the overpayment.5 Here, the handwritten provision was a material term. It addressed the basis for the appellant’s appeal—preventing OPM from unlawfully apportioning his annuity supplement. IAF, Tab 1 at 3, Tab 10 at 5; cf. Young v. U.S. Postal Service, 113 M.S.P.R. 609, ¶ 10 (2010) (defining materiality, regarding a party’s noncompliance with a settlement agreement term, as a matter of vital importance or that goes to the essence of the contract). Moreover, the appellant apparently sought to enforce it when he learned that OPM’s OIG had deemed OPM’s policy unlawful. IAF, Tab 11 at 1-2; see Jackson v. Department of the Army , 123 M.S.P.R. 178, ¶ 10 (2016) (finding that the appellant’s decision to invoke the revocation provision suggested that it was material to her decision to sign the settlement agreement). In addition, the handwritten provision fails to recognize that OPM had that preexisting duty. IAF, Tab 10 at 5. Thus, the parties may have executed their agreement under a mutual mistake of fact, i.e., the shared, mistaken belief that the appellant needed to bargain for the return of the FERS benefits to which he was entitled to by law, should the overpayment be deemed unlawful. See Vance, 114 M.S.P.R. 679, ¶ 12 (explaining that a mutual mistake of fact is a shared, mistaken belief of the parties regarding a material assumption of fact underlying their agreement). Under these circumstances, the settlement agreement must be set aside. See id., ¶ 16; cf. Day v. Department of the Air Force, 78 M.S.P.R. 364, 368 (1998) (recognizing that the Board may sever a nonmaterial, illegal term and enforce the rest of the agreement). On the other hand, a showing that a reasonable person would have been misled by the agency’s statements is sufficient to show misrepresentation. See Hazelton, 112 M.S.P.R. 357, ¶ 11. The Board repeatedly has held that whether the agency provided the misinformation intentionally, unintentionally, negligently, inadvertently, or even innocently is immaterial to whether it was, in fact, misinformation. Cf. Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶¶ 11-12 (2010) (finding the appellant’s retirement involuntary because it was6 based on agency misinformation). Thus, if OPM were aware of its preexisting legal duty, as is the more likely scenario, then it failed to correct the apparently erroneous assumption the appellant had about the existence and nature of that duty before accepting the agreement and submitting it into the record for enforcement purposes. IAF, Tab 8 at 1-2, Tab 10 at 5. Such agency misinformation also would be a basis for invalidating the agreement.7 See Hazelton, 112 M.S.P.R. 357, ¶ 11. Accordingly, we find that the settlement agreement is invalid. We remand the appellant’s appeal of his overpayment under FERS for a decision on the merits.8 ORDER For the reasons discussed above, we remand this case to the Central Regional Office for further adjudication in accordance with this Remand Order. On remand, the administrative judge should allow the parties an opportunity to submit further argument and evidence addressing the merits of the appellant’s overpayment appeal and hold his requested hearing. Thereafter, the 7 The appellant effectively argues that OPM negotiated in bad faith. PFR File, Tab 1 at 1. OPM, even if not agency counsel in particular, was aware of the OIG report and its draft findings, which explicitly referenced the appellant, as early as March 2017; however, there is no indication that OPM apprised the appellant of that during settlement negotiations. IAF, Tab 11 at 8, 24. Finally, the timing of OPM’s acceptance in relation to the publication of the OIG report and the appellant’s February 13, 2018 pleading is suspect. IAF, Tabs 10-11. Negotiating in bad faith may be another basis for setting aside the agreement. Vance, 114 M.S.P.R. 679, ¶¶ 13-16. However, we need not reach a finding as to whether OPM also acted in bad faith, given the above-stated reasons for invalidating the agreement. 8 We deny OPM’s request for a stay of a decision on the appellant’s petition for review or withdrawal of the appeal without prejudice until the Board issues its decision in Moulton v. Office of Personnel Management , MSPB Docket No. DE-0841-18-0053-I-1. In light of our foregoing analysis and remand decision, the requested stay or withdrawal is not appropriate.7 administrative judge should issue a new initial decision on the merits of the appeal. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Simon_Eric_J_CH-0845-18-0088-I-1__Remand_Order.pdf	2024-04-22	ERIC J. SIMON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-18-0088-I-1, April 22, 2024	CH-0845-18-0088-I-1	NP
1,711	https://www.mspb.gov/decisions/nonprecedential/Woldanski_Kristine___A_AT-0752-22-0628-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KRISTINE A. WOLDANSKI, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-0752-22-0628-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kristine A. Woldanski , Titusville, Florida, pro se. Ashley Rutherford , Jacksonville, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her termination appeal because the Board lacks jurisdiction over nonappropriated fund (NAF) employees under 5 U.S.C. § 2105(c). On petition for review, in addition to briefly describing her employment history with the agency, the appellant argues that, while employed on base, she had to follow the same rules and regulations applicable to all Government employees, she describes 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). and challenges the merits of certain alleged actions taken by the agency relating to past write ups and the agency’s investigation that led to her termination, and she asserts that she does not have a neutral body to which she may appeal 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The undisputed record reflects that the appellant worked and was terminated from the agency’s Morale, Welfare & Recreation Department, Key West, Florida, a NAF instrumentality. Initial Appeal File (IAF), Tab 1 at 1, Tab 3 at 7-8, 16. The appellant has not refuted the declaration of the agency’s NAF Human Resources Director who declared that the appellant held, and was terminated from, a NAF position and was not an appropriated -fund employee during the relevant period. IAF, Tab 3 at 7. Thus, we find that the agency’s sworn statement to be sufficient evidence the appellant was a NAF employee. See Jordan v. Department of Justice , 54 M.S.P.R. 609, 611 (1992) (finding that sworn statements that are not rebutted are competent evidence of the matters asserted therein). The appellant has not alleged otherwise. Therefore, we agree with the administrative judge’s determination that the appellant was a NAF2 employee.2 IAF, Tab 5, Initial Decision at 3. The Board previously has found that 5 U.S.C. § 2105(c) excludes NAF employees from those employees with rights to appeal adverse actions to the Board under 5 U.S.C. § 7513(d). Clark v. Army and Air Force Exchange Service , 57 M.S.P.R. 43, 44-45 (1993). Therefore, the administrative judge correctly found that the Board lacks jurisdiction over the appellant’s termination appeal.3 Additionally, the alleged new documents the appellant attached to her petition for review are not material because they are not relevant to the jurisdictional issue but rather speak to the merits of the agency’s actions, over which, as just discussed, we have no jurisdiction. Petition for Review File, Tab 1 at 5-34; see Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (holding that the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). Additionally, she has made no showing that the information in these documents was unavailable before the record closed. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). We therefore discern no basis to disturb the initial decision, which dismissed the appeal for lack of jurisdiction. 2 It is also clear that the appellant was a NAF employee of a military exchange. IAF, Tab 1 at 1, Tab 3 at 8, 16; see 10 U.S.C. § 1063(e). 3 For the same reasons, the Board lacks jurisdiction over the appellant’s claims of suspension for more than 14 days and negative suitability determination, which she indicated she was appealing along with her termination claim in her initial appeal filing. IAF, Tab 1 at 2. As a NAF employee, she has no right to appeal her alleged suspension because she does not qualify for coverage under Title 5 of the U.S. Code, as she was serving in a position paid from nonappropriated funds. See 5 U.S.C. § 2105(c); Clark, 57 M.S.P.R. at 44-45. The appellant also has no right of appeal from the alleged negative suitability action, as defined by 5 C.F.R. part 731, because such an action relates to a regulation administered by the Office of Personnel Management (OPM). See 5 U.S.C. § 2105(c); 5 C.F.R. § 731.101 (noting that OPM has been directed to examine suitability for competitive Federal employment) . The administrative judge not acknowledging these claims did not prejudice the appellant’s substantive rights because, as discussed above, the unrefuted evidence shows that the appellant was a NAF employee at the time of these alleged actions. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). 3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Woldanski_Kristine___A_AT-0752-22-0628-I-1__Final_Order.pdf	2024-04-22	KRISTINE A. WOLDANSKI v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-22-0628-I-1, April 22, 2024	AT-0752-22-0628-I-1	NP
1,712	https://www.mspb.gov/decisions/nonprecedential/Revills_JacobAT-0714-18-0049-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JACOB REVILLS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0714-18-0049-I-1 DATE: April 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant. Kamaria Morris , Columbia, South Carolina, for the agency. Karen Rodgers , Montgomery, 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 affirmed his removal from Federal service pursuant to the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (codified 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). as amended 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 case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was employed as a GS-09 Medical Technologist at the agency’s Atlanta Veterans Administration Medical Center in Decatur, Georgia. Initial Appeal File (IAF), Tab 7 at 26, 42. On September 15, 2017, the agency issued a notice proposing to remove the appellant pursuant to 38 U.S.C. § 714 based on two charges: (1) conduct unbecoming (3 specifications); and (2) unauthorized absences (18 specifications). Id. at 42-48. The conduct unbecoming charge alleged that the appellant requested leave under the Family and Medical Leave Act of 1993 (FMLA) for July 11, 13, and 14, 2017, and then worked at a private non-profit hospital during the time covered by his FMLA leave. Id. at 42. The unauthorized absences charge alleged that, on 18 days during the period from July 17 to August 11, 2017, the appellant was absent from work for the first portion of his shift without his supervisor’s authorization and that he was working at the other non-profit hospital during those absences. Id. at 43-47. Following the appellant’s written response to the proposal, id. at 149-56, the deciding official issued a decision sustaining the charges and finding removal warranted, id. at 11-14. The appellant was removed effective October 6, 2017. Id. at 26. The appellant filed a Board appeal challenging his removal, and he requested a hearing. IAF, Tab 1. He raised affirmative defenses of retaliation for his prior equal employment opportunity (EEO) activity and for assisting coworkers with their EEO complaints, and disability discrimination. Id. at 4, Tab 13 at 5, Tab 16 at 3-4.2 After a hearing, the administrative judge affirmed the removal, finding that the agency proved its charges by substantial evidence and that the appellant failed to prove his affirmative defenses. IAF, Tab 31, Initial Decision (ID) at 3-10. The appellant has filed a petition for review of the initial decision, and the agency has filed a response in opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge concluded that the agency met its burden of proving both charges and all the supporting specifications. ID at 3-8. The appellant does not appear to dispute that finding on review. PFR File, Tab 1. Instead, he makes vague assertions that the initial decision was wrongly decided, identifying the following reasons: “Procedural error; Prejudice; Legal error; Basis; Missinteration [sic] of law and evidence; And other issues.” Id. at 5 (punctuation added, capitalization as in original). He further alleges that the administrative judge issued the initial decision before the appellant “close[d] [his] case.” Id. at 3. The appellant also states that he has documents or evidence that was not included in the record that he would provide at a later date. Id. at 3-4. Finally, he appears to allege that the administrative judge was biased, stating that the hearing was “unfair and prejudice [sic].” PFR File, Tab 1 at 3. The appellant’s assertions are unsupported. Regarding his allegation that his appeal was closed prematurely, the record reflects that the administrative judge issued his decision following a 2-day hearing, in which the appellant was represented by counsel, who examined witnesses and provided a closing statement at the end of hearing. ID; IAF, Tab 29, Hearing Compact Disc (HCD); see 5 C.F.R. § 1201.59(a) (stating that, when there is a hearing, the record will ordinarily close at the conclusion of the hearing). Regarding his claim that the administrative judge was “unfair and prejudice[d],” the appellant’s bare assertion does not establish a deep- seated antagonism towards him that would make fair3 judgment impossible and does not overcome the presumption of honesty and integrity accorded to administrative judges. See Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002); Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). With respect to his argument that he has documents that are important to his appeal that he will provide at a later date, the appellant does not identify what those documents are, nor has he submitted them on review, and so we are unable to assess this claim. PFR File, Tab 1 at 3-4; see Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (noting 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); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (observing 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); 5 C.F.R. § 1201.115(d) (explaining that, to constitute new evidence on review, the information contained in the documents that a party submits, and not just the documents themselves, must have been unavailable when the record closed below). Accordingly, the appellant’s petition for review falls far below the standard set forth in 5 C.F.R. § 1201.115 for granting Board review, and his petition would ordinarily be denied. We nevertheless 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 sustaining the removal based on substantial evidence harmed the appellant. Notwithstanding the above findings, remand of the appeal is required for a different reason. After the initial decision in this case was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021), in which it determined that the agency erred by applying a substantial evidence4 burden of proof to its internal review of a disciplinary action taken under 38 U.S.C. § 714.2 The court in Rodriguez found that substantial evidence is the standard of review to be applied by the Board, not the agency, and that an agency’s deciding official must “determine[]” whether “the performance or misconduct . . . warrants” the action at issue, applying a preponderance of the evidence burden of proof. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). The Board subsequently issued the decision in Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 21-24, in which it found that it was appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to an agency’s improper application of the substantial evidence standard to its review of proposed actions taken under 38 U.S.C. § 714. The Board also held that the Federal Circuit’s holding in Rodriguez applies to all pending cases, regardless of when the events at issue took place. Id., ¶ 22. As previously noted, the deciding official sustained the removal based on her conclusion that the charges were supported by substantial evidence. IAF, Tab 7 at 21. Further, in her hearing testimony addressing how she analyzed the charges, the deciding official confirmed that she found, based “on substantial evidence,” that the recommendations set forth in the removal proposal for both charges should be sustained. HCD, track 5 at 7:05 (testimony of the deciding official). The administrative judge and the parties did not have the benefit of Rodriguez, and they were therefore unable to address its impact on this appeal. 2 The VA Accountability Act was signed into law on June 23, 2017, prior to all of the events at issue in this appeal, and so retroactivity considerations are not implicated in this appeal. Cf. Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1380-82 (Fed. Cir. 2020) (concluding that applying 38 U.S.C. § 714 to conduct that occurred prior to its enactment would have an impermissible retroactive effect and so agencies may not use the VA Accountability Act to discipline employees for matters that occurred prior to the Act’s effective date); Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 29-33 (reversing an adverse action taken under section 714 that was based on both pre- and post-Act misconduct, concluding that it would not be possible to sustain the action based solely on the post-Act misconduct because the underlying instances of misconduct were “so factually interrelated that they cannot be fairly separated.”) 5 Accordingly, we remand this case for adjudication concerning whether the agency’s apparent error in applying the substantial evidence standard of proof was harmful. On remand, the administrative judge should allow the parties to supplement the record regarding whether the agency considered the Douglas factors in analyzing the penalty. In Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed. Cir. 2021), the Federal Circuit determined that the agency and the Board must consider and apply the nonexhaustive factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s penalty selection under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the Douglas factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). The court held that, although section 714 precludes the Board from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas factors” and that, although the Board cannot mitigate the penalty, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing 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”). Here, the administrative judge did not review the agency’s penalty. Instead, he noted that the Board lacks mitigation authority in actions taken under 38 U.S.C. § 714 and upheld the removal penalty “in accordance with the [VA Accountability Act],” based solely on the fact that the specifications and the charges were sustained. ID at 2, 10. Moreover, in the removal decision letter,6 the deciding official did not reference the Board’s decision in Douglas or cite to the Douglas factors. IAF, Tab 7 at 21. Nevertheless, in response to a question during the hearing from the appellant’s counsel concerning whether she considered the Douglas factors, the deciding official stated that the Douglas factors were “brought forward by” the Human Resources (HR) staff and appeared to suggest that she considered this information. HCD, track 5 at 9:45 (testimony of the deciding official). When later confronted with the fact that the evidence file did not appear to contain any document referencing the Douglas factors, the deciding official acknowledged that such information did not appear to be in the evidence file and stated that she only would have reviewed such information if it was in the evidence file, seemingly suggesting that she did not consider the Douglas factors. HCD, track 5 at 15:45, 23:40 (testimony of the deciding official). When the issue was later revisited, the deciding official indicated that she may have had a verbal conversation with HR personnel concerning the Douglas factors. HCD, track 5 at 23:50 (testimony of the deciding official). When the appellant’s counsel later questioned the deciding official about her consideration of the Douglas factors, including whether she considered any mitigating factors in reaching her decision, such as the appellant’s service-connected disability, agency counsel objected to the line of questioning, arguing that the Douglas factors were inapplicable under 38 U.S.C. § 714. HCD, track 5 at 20:30 (testimony of the deciding official). The administrative judge sustained the agency’s objection, agreeing that the agency was “absolutely right on this,” referring to the inapplicability of the Douglas factors in appeals of actions under 38 U.S.C. § 714, and noted that he was unable to mitigate the agency’s penalty and so he could not “hold [the deciding official] to a standard that does not legally exist.” HCD, track 5 at 21:45 (statements of the administrative judge on the record). There was no additional testimony from the deciding official concerning her consideration of the Douglas factors. 7 Thus, the record is unclear as to whether the agency properly considered the Douglas factors in deciding to remove the appellant. The administrative judge and the parties did not have the benefit of Connor, and thus were unable to address its impact on this appeal. Therefore, remand is required for this issue as well. On remand, the administrative judge should permit the parties to submit additional evidence and argument on the penalty issue. See Semenov, 2023 MSPB 16, ¶ 50. 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, he should remand the appellant’s removal to the agency for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379). The administrative judge should permit the parties to supplement the record on the appellant’s EEO reprisal and disability discrimination affirmative defenses, and he should make new findings on those claims on remand. The administrative judge found that the appellant failed to prove his affirmative defenses of retaliation for prior EEO activity and discrimination based on his disability. ID at 8-10. The appellant does not directly challenge the administrative judge’s finding that he did not prove his affirmative defenses on review. PFR File, Tab 1. In making his findings regarding the appellant’s affirmative defenses of disparate treatment disability discrimination and reprisal for prior EEO activity, the administrative judge concluded that the appellant failed to show that his disability or his prior EEO activity was a motivating factor in his removal, and so he failed to prove these affirmative defenses. ID at 8-9 (citing Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 48, 51 (2015), overruled by Pridgen v. Office of Management and Budget , 2022 MSPB 31). In the period since the administrative judge issued his initial decision, we clarified the evidentiary standards and burdens of proof for disparate treatment disability8 discrimination and EEO reprisal claims in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 40, 42, 44-47. Here, the appellant alleged reprisal for his prior activity of filing an EEO complaint in July 2017, stating that the agency discriminated against him based on his disabilities. IAF, Tab 7 at 149-56, Tab 13 at 5, Tab 16 at 4. He also alleged that the agency discriminated against him on the basis of his service-connected disabilities by removing him. IAF, Tab 7 at 149-56, Tab 13 at 5, Tab 16 at 4. In the proceedings on remand, the administrative judge should advise the parties of the standards set forth in Pridgen, provide them with an opportunity to present argument and evidence, and hold a supplemental hearing on the appellant’s affirmative defenses to permit the parties to address these standards. He should then apply the standards set forth in Pridgen in the remand initial decision. On remand, the administrative judge should consider in the first instance the appellant’s claim that he was removed in retaliation for providing assistance to another employee with her EEO complaint as an affirmative defense under 5 U.S.C. § 2302(b)(9)(B). In an order summarizing the prehearing conference, the administrative judge identified the affirmative defenses the appellant was raising as including a claim that his removal was motivated by retaliatory animus by the agency due to the appellant’s frequent representation of coworkers in their EEO complaints up until May 5, 2017. IAF, Tab 16 at 4. Under the Whistleblower Protection Enhancement Act of 2012, a prohibited personnel practice affirmative defense asserted in an adverse action appeal that independently could form the basis of an individual right of action appeal must be analyzed under the burden -shifting scheme set forth in 5 U.S.C. § 1221(e). Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015); Bryant v. Department of Veterans Affairs , 26 F.4th 1344, 1348 (Fed. Cir. 2022) (applying the same burden-shifting scheme to whistleblower reprisal affirmative defenses in actions taken under 38 U.S.C. § 714). Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying9 for or otherwise lawfully assisting any individual in the exercise” of any appeal, complaint, or grievance right.3 5 U.S.C. § 2302(b)(9)(A)-(B); Alarid, 122 M.S.P.R. 600, ¶ 10. Additionally, the Board has held that an appellant’s act of assisting another employee in the EEO process constitutes protected activity under 5 U.S.C. § 2302(b)(9)(B). Marable v. Department of the Army , 52 M.S.P.R. 622, 629-30 (1992) (finding that the appellant’s actions “supporting an EEO complaint filed by an applicant for a position with the agency” constituted protected activity under section 2302(b)(9)(B)), superseded on other grounds by Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 (2014); see Viens-Koretko v. Department of Veterans Affairs , 53 M.S.P.R. 160, 163 (1992) (concluding that testifying in favor of another employee at an EEO hearing constitutes activity protected under 5 U.S.C. § 2302(b)(9)(B)). In addition to the prehearing conference summary order, in a motion to compel the agency’s responses to the appellant’s discovery requests filed before the hearing, the appellant requested information from the agency concerning the nature of his coworker’s EEO activity, noting that he needed such information to support his affirmative defense that the agency removed him in retaliation for his activity of advocating on EEO matters for other employees.4 IAF, Tab 23 at 8. 3 This is distinguishable from 5 U.S.C. § 2302(b)(9)(A)(i), which bars reprisal for an appellant’s personal exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation concerning an alleged violation of section 2302(b)(8). Alarid, 122 M.S.P.R. 600, ¶ 12 n.5. 4 At the hearing, the administrative judge denied the agency’s motion in limine requesting that the appellant’s affirmative defense claims be excluded from the appeal, and sustained, in part, the appellant’s motion to compel the agency’s response to its discovery requests. HCD, track 1 at 2:00; IAF, Tabs 22-23, 25. Although the administrative judge did not sustain the portion of the appellant’s motion that requested information pertaining to this affirmative defense, he noted that he would permit the witnesses to provide testimony concerning this affirmative defense, and the relevant witnesses provided such testimony during the hearing. HCD, track 1 at 5:10 (statements of the administrative judge on the record). Additionally, the administrative judge admitted into the record the appellant’s prehearing submissions regarding his affirmative defenses, over the agency’s objections. HCD, track 8 at 10:20 (statements of the administrative judge on the record). Finally, in the initial decision, the administrative judge ultimately considered the appellant’s other affirmative defenses10 The administrative judge also granted the appellant’s requested witness who was to provide testimony relevant to the appellant’s claim of reprisal for participating in EEO activity on behalf of another employee, and that witness testified at the hearing on those matters. IAF, Tab 7 at 230-31, Tab 16 at 4; HCD, track 7 (testimony of the appellant’s coworker). Nevertheless, the administrative judge did not address this affirmative defense in the initial decision. ID at 8-10. He also did not set forth the appellant’s burden of proving this affirmative defense in the prehearing conference orders, nor did the agency’s pleadings place the appellant on notice of his burden of proving this affirmative defense. IAF, Tabs 16, 21; see Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (stating that the administrative judge must provide the appellant with explicit information on what is required to establish an appealable jurisdictional issue); see also Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008) (stating that an administrative judge’s failure to provide an appellant with proper Burgess notice can be cured if the agency’s pleadings contain the notice that was lacking). Although the appellant has not directly challenged the administrative judge’s failure to address this claim in his petition for review, we conclude that he has not waived or abandoned this claim. See Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18 (summarizing factors to be considered when determining whether an appellant waived or abandoned an affirmative defense, including the clarity with which the appellant raised the affirmative defense, the degree to which he pursued the defense after raising it, and the likelihood that the presumptive abandonment was the product of misleading or incorrect information provided by the agency or the Board). On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument, including a supplemental hearing, that were identified in the prehearing conference summary order. IAF, Tab 16 at 3-4, 6-10; ID at 8-10.11 addressing whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful error. See Semenov, 2023 MSPB 16, ¶ 24. The administrative judge should also permit the parties to supplement the record regarding whether the agency considered the Douglas factors in analyzing the penalty. Finally, the administrative judge should address the appellant’s affirmative defenses in the remand initial decision as specified herein. 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.12	Revills_JacobAT-0714-18-0049-I-1__Remand_Order.pdf	2024-04-22	JACOB REVILLS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0049-I-1, April 22, 2024	AT-0714-18-0049-I-1	NP
1,713	https://www.mspb.gov/decisions/nonprecedential/Maurer_Joshua_L_PH-0845-22-0050-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSHUA LOUIS MAURER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0845-22-0050-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kerra Maureen Maurer , Simsbury, Connecticut, for the appellant. Tiffany Slade , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction this appeal from the final decision of the Office of Personnel Management (OPM) declining to waive an overpayment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to correct the administrative judge’s improper characterization of the OPM determination at issue as the denial of a retirement annuity and to address the parties’ failure to respond to an order issued by the Clerk of the Board on review, we AFFIRM the initial decision. BACKGROUND The appellant filed the instant appeal of OPM’s final decision declining his request to waive his alleged receipt of an overpayment of $14,154.00 in Federal Employees’ Retirement System disability retirement annuity benefits. Initial Appeal File (IAF), Tab 1 at 7-8. On February 8, 2022, OPM moved to dismiss the appeal, stating that it had “decided to rescind the . . . final decision.” IAF, Tab 25 at 4. OPM further stated that “a refund was authorized” of the $300.00 it collected from the appellant’s annuity for the period from December 1, 2021, through January 30, 2022, towards the overpayment. Id. OPM stated that, after the appeal was dismissed, it would “remand the case to the Legal Reconsideration Branch for further development” and “if applicable, the appellant [would] receive a final decision.” Id. 2 The appellant filed an objection on the same day that OPM filed its motion. IAF, Tab 26. He argued, as relevant here, that OPM had not yet refunded the $300.00 it had previously withheld. Id. at 5-6. Also on the same day, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, reasoning that OPM rescinded its final decision and stated its intent to issue a new decision. IAF, Tab 27, Initial Decision (ID). The appellant has filed a petition for review of the initial decision, in which, among other things, he argues that OPM had not yet fully refunded him the $300.00 it had collected. Petition for Review (PFR) File, Tab 1 at 5. He requests that the Board not dismiss the appeal until OPM fully refunded the withholdings from his annuity and made no further withholding. Id. OPM has not responded to the petition for review. Because the appellant’s assertions raised a question as to whether OPM had restored the appellant to the status quo ante, the Office of the Clerk of the Board issued an order directing the appellant to indicate whether OPM had refunded him the $300.00 it withheld and whether it had ceased withholding the alleged overpayment from his annuity. PFR File, Tab 3 at 2. The order also directed OPM to file a response to the appellant’s submission. Id. Neither party responded before the October 2022 deadline. On June 7, 2023, OPM submitted an untimely response in which it asserted and provided evidence that it refunded the $300 to the appellant. PFR File, Tab 4 at 3-4. DISCUSSION OF ARGUMENTS ON REVIEW If OPM completely rescinds its final decision, the Board no longer has jurisdiction over the appeal in which that decision is at issue. Campbell v. Office of Personnel Management , 123 M.S.P.R. 240, ¶ 7 (2016). To rescind a final overpayment decision, OPM must, among other things, refund any money that it already collected from the appellant to recoup the alleged overpayment. Id., ¶ 8. Here, OPM stated below that it had rescinded its reconsideration decision,3 authorized a refund of the $300.00 it collected, and would issue a new decision. IAF, Tab 25 at 4. In his petition for review, filed 1 day after OPM made this statement, the appellant stated that OPM had not yet refunded the money. PFR, Tab 1 at 5. Therefore, in September 2022, the Clerk of the Board issued an order seeking information from the appellant regarding the status of the refund issue. PFR File, Tab 3 at 2. The appellant has not responded to the Order to Show Cause. Given the passage of 7 months between the filing of the petition for review and the Clerk’s order, and the appellant’s failure to respond to the order, we assume that OPM has now processed the $300.00 payment to the appellant and has not made any additional withholdings for the alleged overpayment.2 See generally 5 C.F.R. § 1201.56(b)(2)(i)(A) (reflecting that an appellant has the burden of proof on issues of jurisdiction). Accordingly, we affirm the administrative judge’s determination that the Board lacks jurisdiction over the appeal.3 Because we lack jurisdiction over the appeal, we are without authority to address the appellant’s arguments regarding the merits of OPM’s waiver determination. PFR File, Tab 1 at 5. 2 Before filing its untimely response to the Clerk’s Order asserting that it had refunded the $300, OPM did not file a motion seeking leave to do so from the Clerk’s Office. See 5 C.F.R. § 1201.114(a)(5) (providing that, other than a petition, cross petition, responses to the petition and cross petition, and reply to a response to the petition, the Board will not accept pleadings on review unless a party files a motion with and obtains leave from the Clerk of the Board). Nor has it explained why it failed to meet the deadline. See 5 C.F.R. § 1201.114(f)-(g) (providing that, absent a prior extension, untimely pleadings on review must be accompanied by a motion that shows good cause for the untimely filing). Therefore, we have not considered OPM’s untimely response to the Clerk’s Order. PFR File, Tabs 3-4. In any event, as explained above, this submission would not change the outcome here. 3 As the appellant correctly observes on review, the administrative judge improperly characterized the OPM action from which he appealed as the denial of an application for a disability retirement annuity. ID at 1; PFR File, Tab 1 at 4-5. We modify the initial decision to correct this error. As indicated above, the final decision at issue denied waiver of an alleged overpayment. 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	Maurer_Joshua_L_PH-0845-22-0050-I-1__Final_Order.pdf	2024-04-22	JOSHUA LOUIS MAURER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-22-0050-I-1, April 22, 2024	PH-0845-22-0050-I-1	NP
1,714	https://www.mspb.gov/decisions/nonprecedential/Briscoe_Thomas_A_CH-831M-22-0398-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THOMAS A. BRISCOE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-831M-22-0398-I-1 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas A. Briscoe , Houston, Texas, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed the Office of Personnel Management’s reconsideration decision denying him a waiver of interest payable on the redeposit of his refunded retirement deductions. On petition for review, the appellant argues, among other things, that the interest should be waived due to Government procedural errors or misinformation. 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). ¶2The appellant argues in his petition for review that, contrary to the administrative judge’s determination, he did not waive his right to a hearing. Petition for Review (PFR) File, Tab 1 at 1. The issue in the appeal—whether the interest payable under 5 U.S.C. § 8334(d)(1) on the redeposit of the appellant’s refunded retirement deductions could be waived—was purely legal, and evidentiary hearings are not required in retirement appeals presenting solely questions of law. Carew v. Office of Personnel Management , 878 F.2d 366, 367-68 (Fed. Cir. 1989). Thus, even if the administrative judge erred in finding that the appellant waived his requested hearing, her error did not prejudice the appellant’s rights, providing no basis to disturb the initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). ¶3The appellant also claims that the initial decision was a product of the administrative judge’s bias. PFR File, Tab 1 at 2, 4. In making a claim of bias against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). The party must show2 that any such bias constitutes extrajudicial conduct rather than conduct arising in the administrative proceedings before him. Schneider v. Department of Homeland Security , 98 M.S.P.R. 377, ¶ 7 (2005). Moreover, an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). Our review of the record does not reveal any such extrajudicial conduct, deep-seated favoritism, or antagonism on the administrative judge’s part. The appellant’s claims of bias thus do not overcome the presumption of honesty and integrity accompanying administrative judges. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain4 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 5 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Briscoe_Thomas_A_CH-831M-22-0398-I-1__Final_Order.pdf	2024-04-22	THOMAS A. BRISCOE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-831M-22-0398-I-1, April 22, 2024	CH-831M-22-0398-I-1	NP
1,715	https://www.mspb.gov/decisions/nonprecedential/Boring_Dale_R_SF-0752-21-0520-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DALE R. BORING, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER SF-0752-21-0520-I-2 DATE: April 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dale R. Boring , Albany, Oregon, pro se. Michelle M. Murray , Esquire, and Kate C. Brownlee , Esquire, Baltimore, Maryland, 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 mitigated the appellant’s removal to a 14-day suspension. For the reasons discussed below, we GRANT the agency's petition for review, REVERSE the initial decision with respect to the charges, AFFIRM the initial decision with respect to the appellant’s affirmative defenses, and FIND that the agency proved 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). both of its charges and that removal is within the tolerable limits of reasonableness. BACKGROUND The appellant is a GS-13 Criminal Investigator/Special Agent (SA) with the Social Security Administration’s Office of Inspector General (OIG), in the Seattle Field Division of the Office of Investigations (OI). Boring v. Social Security Administration, MSPB Docket No. SF-0752-21-0520-I-1, Initial Appeal File (IAF), Tab 7 at 14. Within OIG, the OI conducts investigations related to allegations of fraud, waste, abuse, and mismanagement of programs and benefits administered by Social Security Administration (SSA). IAF, Tab 8 at 5. OIG maintains its own system of records to facilitate its investigations, separate from SSA databases. Id. SSA and OIG also entered into a memorandum of understanding dictating the limited circumstances in which OIG employees could access, use, and disclose information in SSA databases to outside law enforcement agencies.2 IAF, Tab 14 at 13-17. As relevant here, if an outside Federal, state, or local entity requests information contained within SSA records, and there is potential fraud against an SSA program or benefit, and OI has an interest in a potential investigation, then OI is supposed to open an investigative file on the matter. Id. at 53-54. However, if the requested information does not appear to involve any fraud against an SSA program or benefit, or OI has no interest in pursuing an investigation, then the information can be disclosed to the requesting agency only upon receipt of a Law Enforcement Verification Request (LEVER). Id. at 51-54. A LEVER has to be in writing and on official letterhead of the requesting agency, be signed by a sworn law enforcement official, and contain the name and social security number for review and a certification that the individual in question is suspected of misusing a social security number or committing another crime 2 The memorandum of understanding is incorporated into the OIG Special Agent Handbook. IAF, Tab 14 at 48-54.2 against a Social Security program. Id. at 50-52. A designated official within OI must approve the LEVER; only then can an OIG employee access SSA records and confirm whether the name and social security number matched. Id. at 52. In September 2018, OIG conducted an office-wide audit of employee queries into SSA databases made between October 2017 and July 2018 and developed a list of such queries. IAF, Tab 8 at 35. The audit eliminated from the list any queries associated with LEVERs, open allegations, or case numbers. Hearing Transcript, dated Jan. 25, 2022 (HT 1), at 10-11 (testimony of the Assistant Special Agent in Charge in the Office of Quality Assurance and Professional Responsibility). For the queries that did not have an associated allegation, case number, or LEVER, OIG asked the individuals who conducted the query to provide a justification for the searches. Id. at 11-12 (testimony of the Assistant Special Agent in Charge in the Office of Quality Assurance and Professional Responsibility); IAF, Tab 10 at 59. The audit revealed that the appellant conducted 870 queries that did not correspond to an allegation or case number, and he was asked to provided justifications for a sample of those queries. IAF, Tab 8 at 35. After reviewing the appellant’s justifications for his queries, the acting OI Assistant Inspector General referred the appellant to the Office of Quality Assurance and Professional Responsibility (OQAPR) for potential systems access violations. Id. at 60. The resulting OQAPR investigation revealed that, between January 1 and November 20, 2018, the appellant conducted 352 SSA record queries for outside Federal, state, and local entities, none of which were associated with a LEVER, and 335 of which were not associated with any allegation or case number. Id. at 37-38. In his OQAPR interview, the appellant admitted that he accessed and disclosed information at the request of outside agencies in violation of OIG policies. IAF, Tab 10 at 19-25, Tab 22 at 6-7. Effective July 23, 2021, the agency removed the appellant based on 106 specifications of unauthorized access of SSA records and 197 specifications3 of unauthorized disclosure from SSA records. IAF, Tab 7 at 14-40. The appellant appealed his removal to the Board, IAF, Tab 1, and, after holding a hearing, the administrative judge mitigated the removal to a 14-day suspension, finding that the agency only proved 3 specifications of the second charge,3 Boring v. Social Security Administration , MSPB Docket No. SF-0752-21-0520-I-2, Appeal File, Tab 2, Initial Decision (ID) at 24-46. The administrative judge ordered the agency to afford the appellant interim relief in accordance with 5 U.S.C. § 7701(b)(2). ID at 61. The agency filed a petition for review, arguing, among other things, that the appellant’s repeated admission to the charged misconduct was sufficient to sustain both of the agency’s charges, and that the penalty of removal was within the tolerable limits of reasonableness. Petition for Review (PFR) File, Tab 1 at 6- 25. The agency also attached to its petition for review a certificate of compliance with the interim relief order and supporting documentation. Id. at 26-32. The appellant filed a response to the agency’s petition for review, PFR File, Tab 3, and a petition for enforcement challenging the agency’s compliance with the interim relief order, PFR File, Tab 4 at 4-11. The agency replied to the appellant’s response to the petition for review, and responded in opposition to the petition for enforcement. PFR File, Tabs 5-6. The appellant replied to the agency’s response to his petition for enforcement. PFR File, Tab 7. 3 Regarding the appellant’s affirmative defenses, the administrative judge found that the appellant did not prove his claim of laches, finding that the 2½ years between the commencement of the appellant’s investigative leave and his removal did not raise a presumption of prejudice, and there was no evidence that the appellant was hampered in his ability to defend himself by the passage of time. ID at 48-50. She also found that the appellant did not prove his claim of whistleblower retaliation because he did not prove he made a protected disclosure when he disclosed to the deciding official that he believed one of the investigators from OQAPR had an antagonism towards him. ID at 50-54. The appellant has not challenged either of these findings on review, and we discern no basis to disturb them. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding that the Board will not disturb an administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).4 DISCUSSION OF ARGUMENTS ON REVIEW The agency proved its charges by preponderant evidence. As the agency argued, and the administrative judge acknowledged, the appellant admitted to the charged conduct throughout the removal process and the pendency of this appeal. ID at 4, 17; PFR File, Tab 1 at 6-9. Nevertheless, the administrative judge concluded that the agency’s evidence did not support the majority of its specifications, sustaining only three specifications of the agency’s second charge. ID at 24-46. It is well established that the agency may rely on an appellant’s admission in support of its charge, and an appellant’s admission to a charge can suffice as proof of the charge without additional proof from the agency. Cole v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 9 (2014); see Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 5 (2014) (finding that the appellant’s stipulation to the first two specifications of a charge was sufficient to find that the agency proved its charge by preponderant evidence), aff’d per curiam , 617 F. App’x 996 (Fed. Cir. 2015) ; see also Wells v. Department of Defense , 53 M.S.P.R. 637, 643-44 (1992) (finding that the appellant’s admission that he engaged in alleged conduct is sufficient proof to sustain the charge). At no time in this matter has the appellant challenged or denied the charged misconduct. In fact, the appellant has consistently and affirmatively stated that he knew he violated policy and has not challenged the agency’s charges or specifications. IAF, Tab 16 at 25-26, 28-30, Tab 22 at 6-8, Hearing Transcript, dated Jan. 28, 2022 (HT 4), at 16-17 (testimony of the appellant). In fact, at the hearing, when asked if he denied accessing and disclosing identified in the decision letter, the appellant responded, “I definitely do not now, nor have I ever.” HT 4 at 16-17 (testimony of the appellant). Therefore, the appellant has repeatedly and expressly admitted to the misconduct. IAF, Tab 16 at 25-26, 28-30, Tab 22 at 6-8, HT 4 at 16-17 (testimony of the appellant). This alone is sufficient to sustain the agency’s5 charges. Accordingly, we reverse the administrative judge’s finding that the agency only proved 3 specifications of the second charge and find that the agency proved all 303 of its specifications and both charges by preponderant evidence. Removal was within the tolerable bounds of reasonableness. Generally, in an adverse action appeal taken under chapter 75, the agency must prove its charge by preponderant evidence, establish a nexus between the action and the efficiency of the service, and establish that the penalty imposed was within the tolerable bounds of reasonableness. Thomas v. Department of the Army, 2022 MSPB 35, ¶ 17. In this matter, we find that both of the agency’s charges have been proven. The administrative judge determined that nexus existed, and neither party has challenged that finding on petition for review.4 ID at 46-47. Therefore, we must now determine the propriety of the penalty. When all of the agency’s charges are sustained, as they are here, the Board will review the agency-imposed penalty only to determine if the agency considered all relevant factors and exercised management discretion within the tolerable limits of reasonableness. Thomas, 2022 MSPB 35, ¶ 19. 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. The Board will modify or mitigate an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors, or the penalty clearly exceeds the bounds of reasonableness. Id. The Board has articulated factors to be considered in determining the propriety of a penalty, such as the nature and seriousness of the offense and its relation to the employee’s duties, the employee’s past disciplinary record, the 4 As the administrative judge noted, the nexus between the sustained misconduct and the efficiency of the Federal service is established when the misconduct occurred at work. Miles v. Department of the Navy , 102 M.S.P.R. 316, ¶ 11 (2006). 6 supervisor’s confidence in the employee’s ability to perform his assigned duties, the consistency of the penalty with the agency’s table of penalties, and the consistency of the penalty with those imposed on other employees for the same or similar offenses. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). It is well established that the most important factor in assessing whether the agency’s chosen penalty is within the tolerable bounds of reasonableness is the nature and seriousness of the misconduct and its relation to the employees’ duties, position, and responsibilities. Thomas, 2022 MSPB 35, ¶ 20; see Downey v. Department of Veterans Affairs , 119 M.S.P.R. 302, ¶ 9 (2013). We agree with the deciding official’s assessment of the Douglas factors and find that the penalty of removal does not exceed the tolerable limits of reasonableness. IAF, Tab 7 at 33-37; HT 1 at 86-89 (testimony of the deciding official). The appellant’s actions were repeated, intentional, and vast in scope. From January 1 through November 20, 2018, the appellant conducted 352 SSA database queries in violation of OIG policy. IAF, Tab 8 at 37-39. He did so despite annually acknowledging that he had read and understood OIG’s systems access and disclosure policies, which set forth the narrow circumstances under which an OIG employee could access and disclose SSA information. Id. at 95-99; HT 4 at 7 (testimony of the appellant). Such policies specifically stated “[d]o not access SSA records and/or release any SSA information unless you are absolutely certain that you are legally authorized to do so,” and set forth the minimum required administrative penalties for systems access offenses, including a warning that such offenses could lead to criminal penalties. IAF, Tab 14 at 48 (emphasis in original). Furthermore, the appellant received a 2-day suspension in 2013 for disclosing information from SSA records and tax return information to unauthorized persons. IAF, Tab 8 at 69-74. His previous suspension thus served as a warning that his conduct violated agency policy. Jinks v. Department of Veterans Affairs , 106 M.S.P.R. 627, ¶ 25 (2007) (stating7 that prior discipline can be considered as notice that the appellant had been warned about the type of misconduct involved). The appellant has repeatedly admitted to knowingly violating OIG policy and has expressed little remorse for his actions, claiming that OIG policies were “unable to be followed,” and that it was “impossible” to do his job and remain within OIG’s access and disclosure policies. HT 4 at 6-7, 65, 79-81 (testimony of the appellant). He further claimed that, although he agreed to abide by OIG policies, the Inspector General Act trumped the policies when they contradicted each other because, per the Inspector General Act, all of SSA’s data is also OIG’s data. Id. at 6-7, 73-74 (testimony of the appellant). The appellant also justified his actions by asserting that his queries were in furtherance of OIG’s mission, and that any individual who used a name, date of birth, and social security number had a connection to the Social Security Act, and, therefore, could be subjected to an OIG investigation. Id. at 52-53 (testimony of the appellant). Such testimony leaves us with the impression that the appellant not only has a blatant disregard for OIG’s policies but will also continue to violate policies that he believes to be “unworkable.” As the appellant is a law enforcement officer, we find this sentiment to be particularly troubling. It is well settled that the agency has a right to expect a higher standard of conduct from law enforcement officers because they are entrusted with a position of great trust and responsibility. See Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 8 (2001) (stating that a higher standard of conduct and degree of trust are required of an incumbent of a position with law enforcement duties); Fischer v. Department of the Treasury , 69 M.S.P.R. 614, 619 (1996) (noting that law enforcement officials are held to a higher standard of conduct than other employees); Hilderbrand v. Department of Justice , 22 M.S.P.R. 233, 236 (1984) (same). The appellant’s refusal to operate within the confines of OIG’s policies is antithetical to his position as a law enforcement officer as he is tasked with upholding and enforcing the rule of law regardless of his opinion of the law.8 See Hilderbrand, 22 M.S.P.R. 233, 236 (explaining that a law enforcement official has a general responsibility to uphold the law). However, we acknowledge that the appellant has presented evidence that suggests that his actions may have been encouraged or condoned by the agency. For instance, the appellant’s former Special Agent in Charge (SAC) emphasized that OIG should be an active and involved partner in Federal, state, and local law enforcement, and that OIG should be collaborating and sharing information with other agencies. HT 1 at 150-52, 157-62 (testimony of former OIG SAC). Also, the appellant, as a representative for the agency, was part of a Social Services Fraud Working Group, which was a group of fraud investigators from Federal, state, and local agencies that would meet periodically and share information regarding cases. Hearing Transcript, dated Jan. 27, 2022 (HT 3) at 94-103 (testimony of the appellant). In fact, many of the appellant’s disclosures were made to members of this working group. Id. at 96 (testimony of the appellant). Additionally, there is testimony from other SAs in the appellant’s division echoing the appellant’s sentiment that OIG’s access and disclosure policies did not reflect the reality of working as a criminal investigator, that many SAs would work around official policy to perform their duties, and that the policies were not enforced prior to September 2018. HT 1 at 201-203, 206-11, 215 (testimony of former OIG SA T.S.); Hearing Transcript, dated Jan. 26, 2022 (HT 2) at 16-25 (testimony of former OIG SA S.W.), 112-21 (testimony of OIG SA D.S.); HT 3 at 5-10 (testimony of former OIG SA R.P.). However, when reviewing the testimony of the appellant’s co-workers, it appears that they did not freely share information gathered from SSA records. HT 1 at 230-31 (testimony of former OIG SA T.S.); HT 2 at 35-37 (testimony of former OIG SA S.W.), 133-35 (testimony of OIG SA D.S.); HT 3 at 19-20 (testimony of former OIG SA R.P.). Instead, his co-workers seem to agree that, at the very least, the requested information needed to have some connection to a matter that OIG may be interested in for investigative purposes. HT 1 at 230-31 (testimony of former9 OIG SA T.S.); HT 2 at 35-37 (testimony of former OIG SA S.W.), 133-35 (testimony of OIG SA D.S.); HT 3 at 19-20 (testimony of former OIG SA R.P.). In contrast, the appellant believed that OIG should be focused on doing “the right thing,” instead of “doing the thing right,” and share whatever information it had with other law enforcement agencies because OIG was “in a unique position to be behind the scenes and helping our [law enforcement] partners find and stop” “monsters who steal and rape and kill and terrorize and torture.” IAF, Tab 10 at 62. Therefore, the appellant freely accessed and disclosed information with other agencies, regardless of whether an SSA program or benefit was implicated. For instance, when an investigator with the Alaska Department of Revenue asked if the appellant could confirm the death of an individual, the appellant not only confirmed the death, but also provided personally identifiable information for the individual’s wife, mother, children, and cousin. IAF, Tab 12 at 21-22. Similarly, when an Alaska State Trooper asked the appellant if he could provide a social security number of a homicide suspect, the appellant also provided the suspect’s date of birth, the names of his father and mother, and confirmed that there were no SSA benefits attached to the individual, or record of employment. IAF, Tab 13 at 33. Accordingly, even though there is evidence that other OIG SAs may have operated on the fringes of OIG’s policies, the appellant seems to have operated entirely outside of the bounds of those policies. This is further supported by the fact that other OIG SAs were able to provide an accepted justification for their queries, even though they operated under the same policies as the appellant. HT 2 at 54, 58-59, 73-74 (testimony of former OIG SA S.W.), 136-37, 141 (testimony of OIG SA D.S.); HT 3 at 14-15 (testimony of former OIG SA R.P.). Therefore, while we remain unconvinced that the agency condoned the appellant’s actions, to the extent that the agency did, we do not find this evidence sufficient to justify mitigation. See Herrera-Martinez v. Social Security Administration , 84 M.S.P.R. 426, ¶ 16 (1999) (noting that, although condonation may be a mitigating factor,10 the Board has not always found that condonation warrants mitigation); see also Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶¶ 18-19 (2010) (explaining that the Board considers condonation as a potential mitigating factor in the penalty analysis). We considered the relevant factors that weigh in favor of the appellant, including almost 20 years of service with the agency at the time of the misconduct at issue in this appeal, his successful performance and performance awards, and the numerous letters and testimony in support of the appellant’s abilities as a law enforcement officer. IAF, Tab 7 at 35, 137-64; see generally HT 1 146-195 (testimony of former OIG SAC), 196-244 (testimony of former OIG SA T.S.); HT 2 at 4-102 (testimony of former OIG SA S.W), 102-169 (testimony of OIG SA D.S.), 170-201 (testimony of Department of Homeland Security SA), 202-244 (testimony of former OIG Resident Agent in Charge); HT 3 at 3-28 (testimony of former OIG SA R.P), 33-52 (testimony of Alaska Department of Revenue Chief Investigator), 53-87 (testimony of Alaska Department of Revenue Investigator). While significant, these factors simply do not outweigh the evidence supporting removal. Therefore, we reverse the administrative judge’s findings mitigating the action and sustain the agency’s removal action. The agency is in compliance with the administrative judge’s interim relief order. The agency’s petition for review was accompanied by a certificate of compliance, as well as three Standard Form 50s reflecting the cancellation of the appellant’s removal, the imposition of a 14-day suspension, and his return to duty at the end of the suspension, as well as a notice for the appellant to return to work following the initial decision.5 PFR File, Tab 1 at 26-32. The return to work 5 Although the interim relief order did not require the agency to cancel the removal action, the Board has found that, when an agency has in good faith inadvertently exceeded the requirements of an order for interim relief, it will not dismiss its petition for review. Moscato v. Department of Education , 72 M.S.P.R. 266, 270 (1996), aff'd, 155 F.3d 568 (Fed. Cir. 1998) (Table).11 notice stated that, while the appellant would return as a criminal investigator, i.e., an 1811 series position, it would be unduly disruptive to return him to his previous duties due to “significant concerns” regarding the appellant’s ability to follow agency policy and safeguard sensitive information. Id. at 31. Therefore, the agency placed the appellant in a remote position in the Administrative and Training Division and explained that, among other things, he would not be assigned enforcement or investigative work during the pendency of the agency’s petition for review. Id. The appellant has filed a petition for enforcement challenging the agency’s compliance certification, arguing that it did not provide him with status quo ante relief because the agency did not return him to his previous position and failed to restore the leave he had accrued at the time of his removal. PFR File, Tab 4 at 4-11. The Board will not entertain a petition for enforcement of an interim relief order before a final decision is issued; therefore, we treat the appellant’s petition as a motion to dismiss the agency’s petition for review for failure to provide interim relief. Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 7. When, as here, the appellant is the prevailing party in the initial decision and the administrative judge orders interim relief, 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. Id., ¶ 6. If an agency makes a determination that returning an appellant to his previous position as interim relief would pose an undue disruption, it must nonetheless return the employee to a pay status pending the outcome of its petition for review, and provide “pay, compensation, and all other benefits as terms and conditions of employment.” Id., ¶ 7; 5 U.S.C. § 7701(b)(2)(B). The Board’s review of interim relief is limited to determining whether the agency actually made an undue disruption determination and whether the employee has received appropriate pay12 and benefits—it cannot review the merits of the agency’s undue disruptive determination. Johnson, 2023 MSPB 9, ¶ 7; see King v. Jerome, 42 F.3d 1371, 1375 (Fed. Cir. 1994). Here, it is undisputed that the agency returned the appellant to a GS-13 Criminal Investigator/SA position and provided him with pay commensurate with that position but reassigned the appellant to a different division after making an undue disruption determination. PFR File, Tab 1 at 26-32. Such relief is consistent with the agency’s interim relief requirements. See Costin v. Department of Health & Human Services , 72 M.S.P.R. 525, 533 (1996) (confirming that an agency may, as part of an undue disruption determination, detail, assign, and transfer an employee to a different duty location); see also Nadolski v. Merit Systems Protection Board , 105 F.3d 642, 645 (Fed. Cir. 1997) (explaining that the entitlement to interim relief under 5 U.S.C. § 7701(b)(2) does not prevent an agency from imposing additional terms or conditions on the employment, such as a change of station or change in duties) . As for the appellant’s arguments that the agency did not provide him with status quo ante relief, interim relief is not intended as a status quo ante remedy. See Parbs v. U.S. Postal Service , 107 M.S.P.R. 559, ¶ 6 (2007), aff’d, 301 F. App’x. 923 (Fed. Cir. 2008). Such full relief is only appropriate after a final Board decision. Therefore, we find that the agency complied with the interim relief order. NOTICE OF APPEAL RIGHTS6 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 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 summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 14 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the15 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of16 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 17 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Boring_Dale_R_SF-0752-21-0520-I-2_Final_Order.pdf	2024-04-22	DALE R. BORING v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-21-0520-I-2, April 22, 2024	SF-0752-21-0520-I-2	NP
1,716	https://www.mspb.gov/decisions/nonprecedential/Davis_Jimmy_I_NY-0752-18-0038-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JIMMY I. DAVIS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER NY-0752-18-0038-I-1 DATE: April 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jimmy I. Davis , Newark, New Jersey, pro se. David Friedman , Esquire, New York, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his restoration appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, AFFIRM the administrative judge’s finding that the Board lacks jurisdiction over his restoration appeal, and REMAND the case to the field office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The agency employed the appellant as a Tractor Trailer Operator. Initial Appeal File (IAF), Tab 1 at 5, Tab 18 at 20. On October 18, 2017, he claimed to have suffered an on-the-job injury. IAF, Tab 1 at 5. The following day, he filed a claim for compensation with the Office of Workers’ Compensation Programs (OWCP) regarding the injury. IAF, Tab 18 at 26-27. In a letter dated October 31, 2017, OWCP found that the documentation was insufficient to support his claim for compensation. Id. at 20-23. Thereafter, on December 11, 2017, the appellant sought to return to work in a modified duty status. Id. at 18. In a letter dated December 14, 2017, the agency denied his request because his OWCP claim had been denied. Id. at 17. The appellant filed a Board appeal claiming that the agency improperly denied his request for restoration. IAF, Tab 1 at 5. 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 20, Initial Decision (ID). She found that the appellant failed to nonfrivolously allege that he suffered from a compensable injury. ID at 7. As a result, she found that he failed to make a nonfrivolous allegation of jurisdiction under 5 C.F.R. part 353, subpart C. ID at 6-7. She also found that, in the absence of an appealable action, the Board lacked jurisdiction to consider his claim of retaliation. ID at 7. She further noted that it did not appear that the appellant’s absence from work constituted an appealable constructive suspension. ID at 7 n.5. The appellant has filed a petition for review, and the agency has filed a response in opposition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUMENTS ON REVIEW The appellant has shown no basis to disturb the administrative judge’s finding that the Board lacks jurisdiction over his restoration appeal. The Federal Employees’ Compensation Act (FECA) and its implementing regulations provide that Federal employees who suffer on-the-job compensable2 injuries enjoy certain rights to be restored to their previous or comparable positions. See Tat v. U.S. Postal Service , 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. part 353. To be entitled to any restoration rights under 5 C.F.R. part 353, an employee must have been “separated or furloughed from an appointment without time limitation . . . as a result of a compensable injury.” 5 C.F.R. § 353.103(b). A compensable injury is a medical condition accepted by OWCP to be job related and for which medical or monetary benefits are payable pursuant to FECA. Tat, 109 M.S.P.R. 562, ¶ 9. On review, the appellant argues that, because he recovered within 1 year of his injury, the administrative judge should have analyzed his claim under 5 C.F.R. § 353.301(a), which concerns individuals who recover from a compensable injury within 1 year, instead of under 5 C.F.R. § 353.301(b), which concerns individuals who recover from a compensable injury after 1 year. PFR File, Tab 1 at 4; see 5 C.F.R. § 353.301(a), (b). However, the administrative judge found that, because the appellant failed to nonfrivolously allege that he suffered from a compensable injury, he failed to nonfrivolously allege jurisdiction under any subsection of 5 C.F.R. part 353. ID at 7. We agree. 5 C.F.R. § 353.301(a)-(d); see Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 11 (2016) (setting forth the jurisdictional criteria under 5 C.F.R. § 353.301(d)); Young v. U.S. Postal Service, 115 M.S.P.R. 424, ¶ 12 (2010) (setting forth the jurisdictional criteria under 5 C.F.R. § 353.301(a)); Payton v. Department of Homeland Security , 113 M.S.P.R. 463, ¶ 6 (setting forth the jurisdictional criteria under 5 C.F.R. § 353.301(b)), aff’d, 403 F. App’x 496 (Fed. Cir. 2010). Accordingly, we affirm the administrative judge’s finding in this regard. The appeal must be remanded for adjudication of the appellant’s alleged constructive suspension claim. Because OWCP deemed the appellant’s injury not compensable, the appellant’s allegations made below are properly analyzed as a constructive suspension appeal, not as a restoration appeal. See Hamilton v. U.S. Postal3 Service, 123 M.S.P.R. 404, ¶ 16 (2016); Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 13 n.7 (2013). In the initial decision, the administrative judge noted, without more, that, “[a]lthough the appellant failed to allege, or even allude to the fact that his absence from work may have constituted a constructive suspension, an absence of more than 14 days may be challenged as a constructive suspension under certain circumstances that do not appear to be applicable here.” ID at 7 n.5 (citing Perez v. Merit Systems Protection Board , 931 F.2d 853, 855 (Fed. Cir. 1991), and Abbott v. U.S. Postal Service , 121 M.S.P.R. 294, ¶ 10 (2010)). However, the administrative judge did not provide the appellant notice of his burden of how to establish jurisdiction over his claim as a constructive suspension below even though he alleged an absence of more than 14 days, and it appears that he is an employee with chapter 75 appeal rights to the Board.2 Certain employee-initiated leaves of absence that appear to be voluntary but are not may be appealable under 5 U.S.C. chapter 75 as constructive suspensions. See Abbott, 121 M.S.P.R. 294, ¶7. Assuming that the jurisdictional requirements of chapter 75 are otherwise met, to establish jurisdiction under these circumstances, an appellant must prove the following by preponderant evidence: (1) he lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived him of that choice.3 Bean, 120 M.S.P.R. 397, ¶ 8; see Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342 (2016). This analysis extends to situations in which the 2 A U.S. Postal Service employee, such as the appellant, has a right to appeal an adverse action to the Board if he meets the following conditions: (1) he is a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity; and (2) he has completed 1 year of current continuous service in the same or similar positions. See 39 U.S.C. § 1005(a)(4) (A); Hamilton, 123 M.S.P.R. 404, ¶ 17. Here, the appellant indicated on his initial appeal form that he is preference eligible, and the agency claims in its motion to dismiss that the appellant has 1 year of current continuous service in his Tractor Trailer Operator position. IAF, Tab 1 at 1, Tab 18 at 11. 3 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4 agency prevented the appellant’s return to work after an initially voluntary absence, such as the appellant alleges here. Rosario-Fabregas , 122 M.S.P.R. 468, ¶ 8; IAF, Tab 1 at 5. If the appellant makes a nonfrivolous allegation of jurisdiction, then he is entitled to a jurisdictional hearing.4 Garcia v. Department of Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). The jurisdictional issue in constructive suspension appeals is often dispositive. Abbott, 121 M.S.P.R. 294, ¶ 8. That is, if the appellant fails to meet his burden of establishing by preponderant evidence that he was constructively suspended, the appeal will be dismissed because the Board lacks jurisdiction over appeals of employees’ voluntary actions. Id. Because such constructive suspensions are often effected without notice, however, if the appellant establishes jurisdiction, the Board will reverse the agency’s action on due process grounds without proceeding to the merits. Id. On remand, the administrative judge shall allow the parties an opportunity to submit evidence and argument concerning whether the appellant meets his burden of establishing jurisdiction over his appeal as a constructive suspension. Should the appellant establish jurisdiction over his constructive suspension appeal, the administrative judge shall adjudicate the appellant’s retaliation claim after providing the appellant notice of the elements of proof to establish such claim. 4 A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven, could establish that the Board has jurisdiction over the matter at issue. 5 C.F.R. § 1201.4(s).5 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.6	Davis_Jimmy_I_NY-0752-18-0038-I-1__Remand_Order.pdf	2024-04-19	JIMMY I. DAVIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-18-0038-I-1, April 19, 2024	NY-0752-18-0038-I-1	NP
1,717	https://www.mspb.gov/decisions/nonprecedential/Ortiz_Gabriel_J_DA-0731-23-0015-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GABRIEL J. ORTIZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0731-23-0015-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Johnny R. Deleon , Big Spring, Texas, for the appellant. Andrew O’Duden , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal challenging the decision of the Office of Personnel Management (OPM) finding him unsuitable for Federal employment as untimely filed by 6 days without good cause shown. 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). On review, the appellant, through his representative, argues that he has new and material evidence concerning the timing of the delivery of OPM’s letter finding him unsuitable for Federal employment. Petition for Review (PFR) File, Tab 1 at 4-7. Specifically, he points to documents that the agency filed before the administrative judge. Id. However, those documents were filed prior to the close of the record before the administrative judge and, therefore, are not new. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). Although the appellant has argued that the relevant documents were filed after the appellant responded to the administrative judge’s order on timeliness, he has not explained why he did not submit a supplemental filing before the administrative judge. PFR File, Tab 1 at 6. The appellant’s remaining arguments on review provide no basis to disturb the initial decision. We therefore deny the appellant’s petition for review and affirm the dismissal of the appeal as untimely.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	Ortiz_Gabriel_J_DA-0731-23-0015-I-1__Final_Order.pdf	2024-04-19	GABRIEL J. ORTIZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0731-23-0015-I-1, April 19, 2024	DA-0731-23-0015-I-1	NP
1,718	https://www.mspb.gov/decisions/nonprecedential/Cole_Vivian_L_PH-0843-18-0189-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VIVIAN L. COLE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0843-18-0189-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Vivian L. Cole , East Brady, Pennsylvania, 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 that affirmed the reconsideration decision of the Office of Personnel Management (OPM) finding that she was not eligible for an increased survivor annuity under the Federal Employees’ Retirement System (FERS). Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant is the surviving spouse of a FERS retiree. Initial Appeal File (IAF), Tab 4 at 20, 41. Her late spouse filed an application for immediate retirement in February 2014 and retired from Federal service effective February 28, 2014. Id. at 31-36, 41. He elected to receive a reduced annuity with a partial survivor annuity for the appellant. Id. at 31. The appellant signed a spousal consent form before a notary public, indicating her consent to her spouse’s election of a partial survivor annuity. Id. at 34. The appellant’s spouse passed away on October 23, 2015, following a diagnosis of stage 4 glioblastoma multiforme brain cancer. IAF, Tab 4 at 20, Tab 9 at 4. Thereafter, the appellant contacted OPM regarding the amount of the survivor benefits she was receiving. Hearing Compact Disc (HCD). After being told by OPM that her spouse had elected, and she had consented to, partial survivor benefits, she indicated to OPM that she believed her late spouse had not been competent to make such a decision. IAF, Tab 4 at 10. On June 24, 2016,2 OPM issued an initial decision finding that her spouse’s election of partial survivor benefits was valid. Id. The appellant then requested reconsideration, which OPM denied. Id. at 5-9. The appellant timely filed an appeal with the Board challenging OPM’s reconsideration decision. IAF, Tab 1. Following a hearing, the administrative judge issued an initial decision affirming OPM’s reconsideration decision. IAF, Tab 14, Initial Decision (ID). He found that, while an annuitant may change his election for a survivor annuity no later than 30 days after receiving his first regular retirement payment, there is no dispute that the appellant’s spouse did not change his election within this 30-day timeframe. ID at 3. In addition, he found that, although an annuitant can elect to provide a survivor annuity or increase a reduced survivor annuity to a full survivor annuity no later than 18 months after his retirement, the appellant’s spouse made no such election within this period. ID at 3-4. The administrative judge also found that the evidence did not show that the appellant’s spouse was mentally incompetent. ID at 4. The appellant timely filed a petition for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW Under FERS, the surviving spouse of a retired Federal employee is entitled to an annuity equal to 50 percent of the annuitant’s monthly benefit unless the survivor consented in writing to receive no such survivor annuity or a reduced annuity at the time of the employee’s retirement. 5 U.S.C. §§ 8442(a)(1), 8416(a)(1). The regulations provide a 30-day window, after the retiree’s receipt of the first regular monthly annuity payment, during which the retiree may revoke or change his election or name another survivor.2 5 C.F.R. § 842.610(a). 2 In the initial decision, the administrative judge cited regulatory provisions applicable to the Civil Service Retirement System (CSRS), rather than FERS. ID at 3. He cited 5 C.F.R. § 831.622(a)-(b), which, like 5 C.F.R. § 842.610(a)-(b), provides that an annuitant may not revoke or change their election later than 30 days after the day of the first annuity payment and can elect to provide a survivor annuity or increase a reduced3 A retiree may also, within 18 months after retirement, choose to elect a survivor annuity for the spouse to whom he was married at retirement if he did not previously do so or to increase the size of such an annuity. 5 U.S.C. § 8416(d) (1); 5 C.F.R. § 842.610(b)(1). Here, it is undisputed that the appellant’s late spouse timely elected a partial survivor annuity for the appellant and that the appellant signed a spousal consent form indicating her consent to his election. IAF, Tab 4 at 31, 34. In addition, the appellant does not challenge, and we discern no basis to disturb, the administrative judge’s findings that the appellant’s late spouse did not seek to amend his survivor annuity election during the 30 days following his first regular monthly annuity payment or make an election during the 18 months following his retirement.3 ID at 3-4; IAF, Tab 4 at 5-7. Rather, the appellant argues on review that she is entitled to an increased survivor annuity because she and her late spouse did not make a valid joint election of a partial survivor annuity. PFR File, Tab 1. The U.S. Court of Appeals for the Federal Circuit has held that “the voluntary signing of a [G]overnment form for the purpose of evidencing agreement with the terms of the form is binding, and the [G]overnment is entitled to rely on the act of signing absent a showing of fraud, duress, or mental survivor annuity to a full survivor annuity no later than 18 months after retirement. The Board has held that, where the regulatory requirements for FERS and CSRS provisions are broadly similar, we can rely on CSRS case law where the differences that do exist between these systems do not affect the applicability of CSRS case law to FERS cases. See Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632, ¶ 8 n.1 (2012). Thus, we find that any error that the administrative judge may have made in this regard is immaterial to the outcome of the appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 3 On review, the appellant only alleges that she did not know of the applicable time frames until after her spouse’s death. PFR File, Tab 1 at 2. However, the appellant cannot make a survivor annuity election for the annuitant. See Rollins v. Office of Personnel Management, 113 M.S.P.R. 542, ¶ 9 (2010) (finding that the administrative judge erred in ordering OPM to permit the appellant to make a new survivor annuity election). Furthermore, such an election must be made before the retiree dies. 5 C.F.R. § 842.610(b)(1). Thus, this argument does not provide a basis for review. 4 incompetence.” Braza v. Office of Personnel Management , 598 F.3d 1315, 1319 (Fed. Cir. 2010) (en banc). The appellant, as the applicant for a survivor annuity and as the individual seeking to change the annuity agreement of record, has the burden to show her entitlement to the benefit she seeks by preponderant evidence. See Cheeseman v. Office of Personnel Management , 791 F.2d 138, 140 -41 (Fed. Cir. 1986); Dombeck v. Office of Personnel Management , 43 M.S.P.R. 43, 46 (1989). 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 appellant has not shown by preponderant evidence that her spouse was mentally incompetent so as to render his election invalid. In the initial decision, the administrative judge found that the record evidence was insufficient to establish that the appellant’s late spouse was mentally incompetent at the time of his retirement and survivor annuity election. ID at 4. The appellant challenges this finding on review, arguing that “anyone with any common sense should be able to see that this election was an honest mistake” and that “his ability to reason had in fact been effected [sic] by his tumor, tumor resection, radiation and chemotherapy.” PFR File, Tab 1 at 3-4. She further argues that the record evidence establishes that her late spouse was mentally incompetent at the time of his survivor annuity election. Id. at 2-3. For the reasons that follow, we agree with the administrative judge’s determination that the appellant has not met her burden to show that her late spouse’s survivor annuity election was invalid on the basis of mental incompetence. Annuity elections are only valid if made by mentally competent individuals. Dombeck, 43 M.S.P.R. at 45-47 (affirming OPM’s decision because the appellant failed to prove that his wife was mentally incompetent at the time she elected an unreduced annuity payable only during her lifetime with no survivor benefits payable to the appellant). Although such competency is5 presumed absent challenge, the spouse can demonstrate that the annuitant lacked the requisite capacity to make a valid election. Pooler v. Office of Personnel Management, 23 M.S.P.R. 51, 53-54 (1984) (invalidating a retiree’s election of a life annuity with no survivor benefit when there was preponderant evidence that he was incompetent when he made the election). The relevant standard for mental incompetence is “an inability to handle one’s personal affairs because of either physical or mental disease or injury.” Rapp v. Office of Personnel Management, 483 F.3d 1339, 1341 (Fed. Cir. 2007). The Board requires medical evidence to substantiate a claim of mental incompetence. See Thieken v. Office of Personnel Management , 56 M.S.P.R. 192, 194, aff’d, 11 F.3d 1074 (Fed. Cir. 1993) (Table). The appellant submitted below a note from her late spouse’s doctor which indicated that her spouse’s “capacity to make decisions or accurately complete documentation may have been impacted.” IAF, Tab 9 at 4. The appellant appears to argue on review that the administrative judge ignored this medical evidence. PFR File, Tab 1 at 2. Contrary to the appellant’s assertion, t he administrative judge considered this medical note but found it unpersuasive. Id.; ID at 4; IAF, Tab 9 at 4. In assessing this medical evidence, he observed that the doctor’s note was dated January 25, 2018, which is approximately 4 years after the appellant’s spouse filed for immediate retirement in February 2014. ID at 4. The administrative judge found that the doctor’s note did not adequately address the appellant’s late spouse’s inability to handle his daily affairs during the relevant time period. Id. We agree. For the first time on review, the appellant submits another note from her late spouse’s doctor which states that her spouse, “had memory loss and severe fatigue and had difficulties to fully comprehend complex matters and difficulties with reasoning and was therefore impaired and at times incompetent to make prudent decisions in his own interest.” PFR File, Tab 1 at 5. The Board will not consider evidence submitted for the first time on review absent a showing that it6 was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Here, the appellant has not shown that this evidence was unavailable before the record closed below despite her due diligence. Even if we were to consider this newly submitted medical note, it would not provide a basis for review. We find that the probative value of this note is limited because the doctor’s note is undated, her familiarity with and treatment of the appellant’s late spouse is unclear, it does not contain a reasoned explanation of how his medical condition affected his mental capacity to handle his daily affairs on a consistent basis, and it offers no specific examples or supporting documentation of his alleged impairment. See Slater v. Department of Homeland Security , 108 M.S.P.R. 419, ¶ 15 (2008) (indicating the factors that the Board considers when assessing the probative weight of a medical opinion), overruled on other grounds by Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 14; Stone v. Office of Personnel Management , 42 M.S.P.R. 195, 198-200 (1989) (finding that, a letter from the decedent’s doctor stating that he was an insulin dependent diabetic with “extreme difficulty with his mental capacity . . . [and] had difficulty making important decisions” lacked probative weight and was insufficient to establish mental incapacity). The appellant also submits for the first time on review letters from friends and family describing how well they knew her late spouse, how his medical conditions impacted him, and that he would have wanted his wife to have the maximum survivor annuity. PFR File, Tab 1 at 6-10. As indicated above, the Board will generally not consider evidence submitted for the first time on review. Avansino, 3 M.S.P.R. at 214. Here, the appellant has also not shown that this evidence was unavailable before the record closed below despite her due diligence. Even if we were to consider these newly submitted letters, it would not provide a basis for review. Absent medical evidence showing that the appellant’s late spouse was mentally incompetent when he elected a partial survivor annuity in February 2014 or at any time during the following 18 months, the subjective7 opinions of the appellant and her late spouse’s friends and family that he was mentally incompetent are unpersuasive. See Thieken, 56 M.S.P.R. at 194. Accordingly, the appellant has provided no reason to disturb the administrative judge’s finding that the appellant did not prove that her late spouse was mentally incompetent so as to render his election invalid. The appellant has not shown by preponderant evidence that she did not consent to her late spouse’s election that she receive a partial survivor annuity. It is undisputed that the appellant completed a signed consent to receive a partial survivor annuity, which was notarized on February 17, 2014. IAF, Tab 4 at 34; HCD. The relevant inquiry in determining whether the appellant met her burden of proving her entitlement to the survivor annuity she seeks is whether she consented to her spouse’s election that only entitled her to a partial survivor annuity. See Luten v. Office of Personnel Management , 110 M.S.P.R. 667, ¶ 10 (2009). The administrative judge found that the appellant signed the spousal consent form and her consent was not invalidated on the basis of the appellant’s or her spouse’s mistake or failure to read the documents. ID at 4. On review, the appellant alleges that her spouse made an “honest mistake” when he elected to provide her with a partial survivor annuity and that she signed the spousal consent form without reading the document. PFR File, Tab 1 at 2-3. The administrative judge addressed these arguments below, properly concluding that, to the extent the appellant or her spouse erred in electing a reduced annuity and consenting to a reduced annuity, unilateral mistake is not a basis for invalidating the election. ID at 4; see Carlton v. Office of Personnel Management, 52 M.S.P.R. 225, 229 (1992). The administrative judge further correctly noted that the appellant’s argument that she did not read the relevant documents does not render her consent invalid. ID at 4; see Cerilli v. Office of Personnel Management , 119 M.S.P.R. 404, ¶ 8 (2013). Although we sympathize with the appellant’s circumstances, neither the Board nor OPM may grant retirement benefits on the basis of equitable8 considerations when granting such benefits is not otherwise permitted by law. See Office of Personnel Management v. Richmond , 496 U.S. 414, 416 (1990); Hamilton v. Office of Personnel Management , 69 M.S.P.R. 690, 694 (1996). Therefore, we find no basis to disturb the administrative judge’s determination that OPM’s reconsideration decision must be affirmed. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on10 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Cole_Vivian_L_PH-0843-18-0189-I-1__Final_Order.pdf	2024-04-19	VIVIAN L. COLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0843-18-0189-I-1, April 19, 2024	PH-0843-18-0189-I-1	NP
1,719	https://www.mspb.gov/decisions/nonprecedential/Briscoe_Thomas_A_DA-0831-22-0277-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THOMAS A. BRISCOE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0831-22-0277-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas A. Briscoe , Houston, Texas, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction because the Office of Personnel Management (OPM) had not issued a final decision. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 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 DENY the petition for review as moot, as OPM has issued at least one final decision concerning the subject of this appeal following the issuance of the initial decision, and a Board appeal of that final decision is pending. The appellant was employed by the U.S. Postal Service from September 1980 until October 1987, and at the end of this period of service, he applied for and received a refund of his contributions to the Civil Service Retirement System. Initial Appeal File (IAF), Tab 9 at 16. He was reemployed by the Postal Service on December 17, 1988 and voluntarily retired on December 28, 2021. Id.; IAF, Tab 1 at 3. Prior to his retirement in 2021, the appellant began working with the Postal Service and OPM to redeposit the amount he had withdrawn following his initial period of service. IAF, Tab 9 at 16. Following his retirement, and while processing the appellant’s annuity, OPM offered the appellant an opportunity to redeposit the refunded deductions corresponding with his period of prior service, and on March 7, 2022, it informed him that his redeposit amount was $45,505.00 due to the accrued interest. IAF, Tab 3 at 5-7. The appellant elected not to pay the redeposit. IAF, Tab 1 at 5. On May 12, 2022, the appellant filed the instant appeal asserting that the Postal Service’s negligence caused the interest on the redeposit amount to grow. IAF, Tabs 1, 3-5, 9. Recognizing that the Board may not have jurisdiction over the matter, the administrative judge informed the appellant that, generally, the Board only has jurisdiction over a retirement matter after OPM issues a final decision or reconsideration decision, and he ordered the appellant to file evidence2 and argument that his appeal is within the Board’s jurisdiction. IAF, Tab 2 at 2. The appellant filed several responses regarding the Postal Service’s and OPM’s conduct, but he did not submit a final decision or reconsideration decision from OPM, nor did he assert that such a decision existed. IAF, Tabs 3-5, 9. Without holding the requested hearing, IAF, Tab 1 at 2, the administrative judge issued an initial decision on June 29, 2022, dismissing the appeal, IAF, Tab 10, Initial Decision (ID). He found that the appellant failed to allege any facts showing that OPM issued a final appealable decision and he found that the Board, therefore, may not exercise jurisdiction over his claims. ID at 4-5. In doing so, however, the administrative judge acknowledged the appellant’s assertion that OPM was unresponsive to his inquiries, and he informed the appellant that the Board may exercise jurisdiction over a new appeal even in the absence of a final decision when the appellant demonstrates that OPM acted improperly in refusing to issue a final appealable decision and/or delays the issuance of a final appealable decision for an excessive amount of time. ID at 4 n. 2; see Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014). Nonetheless, the administrative judge dismissed the instant appeal for lack of jurisdiction. ID at 5. The appellant has filed a petition for review of the initial decision, arguing that he has continually contacted OPM requesting that it issue a final appealable decision in this matter, but that it consistently refuses to do so. Petition for Review (PFR) File, Tabs 1, 3. The agency has responded to the appellant’s petition for review asserting that OPM issued a final decision regarding its ability to waive the interest on the redeposit amount on April 26, 2017, and that the appellant’s appeal should be dismissed. PFR File, Tab 6. The appellant has not replied. In general, the Board has jurisdiction over OPM determinations affecting an appellant’s rights or interests under the retirement system only after OPM has issued a final decision. McNeese v. Office of Personnel Management ,3 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). As explained above, the essence of the appellant’s claim on review is that OPM has refused to issue a final appealable decision concerning the interest accrued on his redeposit amount. PFR, Tab 1. However, in April 2023, while this petition for review was pending, a Board administrative judge issued an initial decision in a separate appeal affirming an April 26, 2017 OPM final decision denying the appellant’s request to waive the interest owed on his redeposit.2 Briscoe v. Office of Personnel Management , MSPB Docket No. CH-831M-22-0398-I-1, Initial Decision (April 17, 2023).3 Thus, the Board cannot provide the appellant any relief in the instant matter. Because the appellant’s assertions on review that OPM refused to issue him a final appealable decision are now moot, we dismiss his petition for review as moot. See Currier v. U.S. Postal Service , 72 M.S.P.R. 191, 195 (1996) (explaining that mootness can arise at any stage of litigation and 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). 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 2 It appears that the administrative judge in this matter was not made aware by either party of OPM’s April 26, 2017 final decision. 3 The appellant filed a petition for review of that initial decision, and the Board will issue a separate decision in that matter. 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 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 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	Briscoe_Thomas_A_DA-0831-22-0277-I-1__Final_Order.pdf	2024-04-19	THOMAS A. BRISCOE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-22-0277-I-1, April 19, 2024	DA-0831-22-0277-I-1	NP
1,720	https://www.mspb.gov/decisions/nonprecedential/Shelly_K._Swain_PH-0843-21-0162-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHELLY K. SWAIN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0843-21-0162-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shelly K. Swain , Martinsburg, West Virginia, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which dismissed the appeal of the reconsideration decision issued by the Office of Personnel Management (OPM) finding that the appellant was overpaid in survivor annuity benefits under the Federal Employees’ Retirement System (FERS). For the reasons discussed 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). below, we GRANT the petition for review, VACATE the initial decision, DISMISS the appeal for lack of jurisdiction, and DENY the cross petition for review. BACKGROUND The appellant filed a Board appeal of OPM’s reconsideration decision, which found that she had been overpaid FERS survivor annuity benefits because of a Qualified Domestic Relations Order which awarded 50% of her late husband’s gross monthly annuity to his former spouse. Initial Appeal File (IAF), Tab 1 at 5. During the processing of the appeal, the agency rescinded the reconsideration decision, and requested that the appeal be dismissed. IAF, Tab 5 at 4. The administrative judge issued an initial decision dismissing the appeal on the grounds of mootness, explaining that, because the appellant had received all the relief sought in her appeal, the appeal was moot.2 IAF, Tab 6, Initial Decision (ID) at 1-2. The agency filed a petition for review, arguing that the appeal should have been dismissed because of lack of jurisdiction and requesting that the initial decision be vacated. Petition for Review (PFR) File, Tab 1 at 6-8. The appellant filed a cross petition for review, arguing the merits of her case. PFR File, Tab 5 at 1. DISCUSSION OF ARGUMENTS ON REVIEW The appeal should have been dismissed for lack of jurisdiction. The Board has jurisdiction over determinations affecting an individual’s rights or interests under FERS after OPM has issued a reconsideration decision. 5 U.S.C. § 8461(e) (1); Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶¶ 13-14 (2014); 5 C.F.R. § 841.308 . If OPM completely rescinds a reconsideration decision, the Board no longer retains jurisdiction over the appeal in which that 2 The administrative judge stated that the agency requested the appeal be dismissed as moot. ID at 1-2. This was a mischaracterization of the agency’s request; the agency requested that the appeal be dismissed for lack of jurisdiction. IAF, Tab 5 at 4.2 reconsideration decision was at issue, and the appeal must be dismissed for lack of jurisdiction. Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531, ¶ 5 (2006). In the initial decision, the administrative judge relied on Jones v. Office of Personnel Management , 52 M.S.P.R. 195, 197 (1992), in which the Board dismissed the appeal as moot because OPM rescinded the reconsideration decision and found that the appellant was entitled to the annuity he sought. ID at 2. Here, OPM has not indicated whether the appellant will be successful in her claim regarding the overpayment, only stating that the case would undergo “further development,” and that, if applicable, it would issue a new final decision with Board appeal rights. IAF, Tab 1 at 5. Accordingly, because OPM has not made a decision on whether the appellant was entitled to the relief she sought, the appeal has not been rendered moot. See Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶ 8 (2016) (stating that a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome of the case). Thus, because the administrative judge erred in dismissing the appeal on the grounds of mootness, we vacate the initial decision and dismiss the appeal for lack of jurisdiction. Because we do not have jurisdiction over the appeal, we cannot address the merits of the appellant’s case, and thus we deny the appellant’s cross petition for review. Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that the Board cannot address any merit-based claims unless jurisdiction is established). However, upon receipt of a new reconsideration decision from OPM, the appellant may file another appeal with the appropriate regional office consistent with the Board’s regulations.3 3 Upon receipt of any such appeal, the administrative judge should consider whether it would be appropriate to notify the former spouse, Virginia, of the appeal and afford her the opportunity to intervene, as the outcome of the appeal may affect her rights. See 5 C.F.R. § 1201.34 (the Board’s regulation governing intervenors); Painter v. Office of Personnel Management , 106 M.S.P.R. 385, ¶¶ 10-11 (2007) (ordering that the deceased’s children be afforded an opportunity to intervene in the appeal because the3 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: outcome may directly affect them). 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	Shelly_K._Swain_PH-0843-21-0162-I-1_Final_Order.pdf	2024-04-19	SHELLY K. SWAIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0843-21-0162-I-1, April 19, 2024	PH-0843-21-0162-I-1	NP
1,721	https://www.mspb.gov/decisions/nonprecedential/Dimitroyannis_Dimitrios_A_CH-0714-22-0156-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DIMITRIOS ALEX DIMITROYANNIS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-0714-22-0156-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dimitrios Alex Dimitroyannis , Chicago, Illinois, pro se. Shelia Fitzpatrick , Hines, 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 affirmed the agency’s removal action taken pursuant to 38 U.S.C. § 714. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE AND REVERSE the initial decision, and find that the agency action is NOT SUSTAINED as it is not in accordance with 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). DISCUSSION OF ARGUMENTS ON REVIEW ¶2The agency appointed the appellant to the position of Supervisory Therapeutic Medical Physicist pursuant to 38 U.S.C. § 7401(3) on April 29, 2018. Initial Appeal File (IAF), Tab 6 at 111-12. Accordingly, he was a hybrid employee, which is a category of agency employees subject to both Title 38 and Title 5 of the United States Code. Department of Veterans Affairs v. Federal Labor Relations Authority , 9 F.3d 123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky, 284 F.3d 1310, 1314 (Fed. Cir. 2002); Richardson v. Department of Veterans Affairs , 2023 M.S.P.B. 1, ¶ 2. Effective January 20, 2022, the agency removed the appellant pursuant to 38 U.S.C. § 714 (the VA Accountability Act) for “Failure to Maintain an Active Board Certification,” which the agency explained was a condition of employment for the appellant.2 IAF, Tab 6 at 5-7, 114, 116. The appellant filed a Board appeal, and, after holding a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 1, Tab 36, Initial Decision (ID). In the initial decision, the administrative judge found that the agency presented substantial evidence to support the charge and penalty. ID at 5-15. The appellant filed a petition for review of the initial decision, and the agency responded. Petition for Review (PFR) File, Tabs 1, 3. ¶3These proceedings occurred before the Board issued a precedential Opinion and Order addressing an interlocutory appeal in Richardson v. Department of Veterans Affairs , 2023 MSPB 1. That decision held that the agency cannot rely on 38 U.S.C. § 714 to remove an employee appointed under 38 U.S.C. § 7401(3) because such employees are covered by 38 U.S.C. § 7403(f)(3), which provides that “all matters relating to adverse actions . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.” Id., ¶ 12 (quoting 38 U.S.C. § 7403(f)(3)). Thus, the Board held that the 2 The agency further explained that the applicable medical board had revoked the appellant’s certification. IAF, Tab 6 at 5.2 removal of an employee appointed under 38 U.S.C. § 7401(3) under 38 U.S.C. § 714 is not in accordance with law and that, if the agency wants to take an adverse action against an employee appointed under the authority of 38 U.S.C. § 7401(3), it must do so in accordance with the procedures set forth in 5 U.S.C. chapter 75 as required by 38 U.S.C. § 7403(f)(3). Richardson, 2023 MSPB 1, ¶ 30. ¶4After the issuance of Richardson, the agency was ordered to submit evidence and argument addressing the impact, if any, of Richardson on our resolution of this appeal. PFR File, Tab 7 at 2. In response, the agency argued that the Opinion and Order in Richardson was wrongly decided. PFR File, Tab 8. In particular, the agency argued that it properly relied on its authority under 38 U.S.C. § 714 to remove the appellant because (1) the plain language of the statute, including the definitions, provides that individuals appointed under 38 U.S.C. § 7401(3) are covered by 38 U.S.C. § 714; (2) Congress intended, as shown by the legislative history, for individuals appointed under section 7401(3) to be covered by section 714; (3) 38 U.S.C. § 714 and 38 U.S.C. § 7403(f)(3) can be harmonized to give effect to both, and, if the statutes are in conflict, section 714 repeals the conflicting provisions of section 7403(f)(3); and (4) the agency’s interpretation of its own statute is entitled to deference.3 Id. at 7-27. ¶5The Board addressed the contentions underlying the agency’s first two arguments in the Opinion and Order in Richardson. Specifically, regarding the first argument, after a detailed analysis of the statutory language, the Board in Richardson concluded that the plain language of section 714 does not alter the Title 5 appeal rights provided in section 7403(f)(3) for individuals appointed 3 The agency moved to stay proceedings in this petition for review pending a decision on its petition for review of the initial decision in Richardson, which was issued following the issuance of the Opinion and Order on the interlocutory appeal. PFR File, Tab 8 at 4-7. The Board has issued a decision on the petition for review in Richardson, finding unpersuasive many of the arguments raised in this appeal. Richardson v. Department of Veterans Affairs , MSPB Docket No. AT-0714-21-0109-I-1, Final Order (Mar. 26, 2024). Because the decision in Richardson has been issued, the agency’s motion is moot. 3 under section 7401(3). Richardson, 2023 MSPB 1, ¶¶ 18-21. Regarding the second argument, the Board in Richardson considered the legislative history of section 714, including the statements of Congressman Roe addressing an earlier unenacted version of the VA Accountability Act, and concluded that his statements, without more, did not demonstrate a legislative intent to repeal 38 U.S.C. § 7403(f)(3).4 Richardson, 2023 MSPB 1, ¶¶ 26-27. The agency’s arguments here provide no basis not to apply the findings in Richardson to this appeal. ¶6Like the agency’s first two arguments, the agency’s third argument was also addressed in the Opinion and Order in Richardson. Contrary to the agency’s position, PFR File, Tab 8 at 18-23, the Board in Richardson harmonized sections 714 and 7403(f)(3) to give effect to both, finding that the statutes can be reconciled by applying section 7403(f)(3) only to adverse actions against employees appointed under section 7401(3) and applying section 714 to adverse or performance-based actions against employees appointed under section 714. Richardson, 2023 MSPB 1, ¶ 24. This approach additionally recognizes that the significant differences in procedural rights between section 714 and section 7403(f)(3) precludes a conclusion, as the agency contends, that section 714 satisfies the requirements of section 7403(f)(3).5 Richardson, 2023 MSPB 1, 4 Regarding the statements of Congressman Roe relied on by the agency, PFR File, Tab 8 at 15-18, the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit have advised that a tribunal should be cautious in relying on the statements of a single legislator in determining the intent of Congress. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) (“The remarks of a single legislator, even the sponsor, are not controlling in analyzing the legislative history.”); Groff v. United States , 493 F.3d 1343, 1354 (Fed. Cir. 2007) (same). 5 Examples of the procedural difference between the two provisions include that section 714 provides for a shorter notice and decision window than the procedures under Title 5. Compare 38 U.S.C. § 714(c) (1)-(2), with 5 U.S.C. § 7513(b). In addition, the agency may take an adverse action under the provisions of Title 5 “only for such cause as will promote the efficiency of the service,” see 5 U.S.C. § 7513(a), but section 714 does not contain a similar provision regarding “cause” or an “efficiency of the service” standard. Also, the deadline to file an appeal with the Board is shorter under section 714 than it is under the Board’s regulations that are applicable to appeals filed under the4 ¶ 32. Accordingly, the Board in Richardson also rejected the argument that section 714 repealed section 7403(f)(3), noting that a repeal by implication is appropriate only when the statutes are irreconcilable or when the new “enactment so comprehensively covers the subject matter of the earlier statute that it must have been intended as a substitute.”6 Richardson, 2023 MSPB 1, ¶¶ 22-23 (quoting Todd v. Merit Systems Protection Board , 55 F.3d 1574, 1577-78 (Fed. Cir. 1995)). Again, the agency’s arguments provide no basis to disturb the findings in Richardson. ¶7Finally, regarding the agency’s argument that its interpretation of 38 U.S.C. § 714 is entitled to deference, we observe that numerous decisions from the U.S. Court of Appeals for the Federal Circuit have rejected the agency’s interpretation of 38 U.S.C. § 714. See, e.g., Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1323-27 (Fed. Cir. 2021) (rejecting the agency’s argument that 38 U.S.C. § 714 eliminated the requirement to review the factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in assessing a proper penalty); Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1300 (Fed. Cir. 2021) (“There are strong reasons that section 714 should not be interpreted [as the provisions of Title 5. Compare 38 U.S.C. § 714(c)(4)(B) (10 business days), with 5 C.F.R. § 1201.22(b)(1) (30 days after the effective date or 30 days after receipt of the agency’s decision, whichever is later). In an appeal under section 714, the administrative judge shall uphold the agency’s decision to remove, demote, or suspend an employee if the decision is supported by substantial evidence. 38 U.S.C. § 714(d)(2)-(3). On the other hand, in an appeal under chapter 75, the agency must meet the higher “preponderance of the evidence” standard, and the Board may mitigate the agency’s chosen penalty in situations in which the Board determines that the penalty exceeds the tolerable limits of reasonableness. See 5 U.S.C. § 7701(c)(1)(B); Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). 6 In support of its argument that section 714 repeals section 7403(f)(3), the agency points to the Board’s decision in Schmitt v. Department of Veterans Affairs , 2022 MSPB 40, ¶¶ 14, 16, in which the Board held that the VA Accountability Act contained more specific language regarding interim relief and that language controlled over the general language in 5 U.S.C. § 7701(b)(2). PFR File, Tab 8 at 25-26. However, the Board’s finding in Schmitt in the narrow context of the interim relief provision does not mean that 38 U.S.C. § 714 is the more precisely drawn statute in the context before us. Therefore, this argument is not persuasive.5 agency suggests] to endorse the use of substantial evidence as a burden of proof.”); Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1377 (Fed. Cir. 2020) (“The government’s reading—allowing the agency to remove an employee for the tiniest incident of misconduct so long as the agency could present substantial evidence that the trifling misconduct occurred—could ‘gut due process protections’ in a way Congress did not intend.”). Thus, we do not believe that the agency’s interpretation of 38 U.S.C. § 714 is entitled to deference. ¶8An agency action that is not in accordance with law must be reversed by the Board. 5 U.S.C. § 7701(c)(2); Hamilton v. U.S. Postal Service , 58 M.S.P.R. 486, 488 (1993). An appealable action is unlawful in its entirety if there is no legal authority for it, and the Board will reverse it as “not in accordance with law,” even if minimum constitutional due process was afforded to the appellant. Hamilton, 58 M.S.P.R. at 488; Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 683-84 (1991). Furthermore, in such a circumstance, the appellant need not show that the agency’s erroneous actions prejudiced his rights so that the outcome before the agency was possibly affected. Hamilton, 58 M.S.P.R. at 488. ¶9Here, the agency removed the appellant using the procedures set forth in 38 U.S.C. § 714, but as discussed above, that statutory authority was not a valid basis on which to remove the appellant. In light of the procedural differences between the statutes, see supra ¶ 6 n.5, the Board in Richardson found that it was not appropriate to convert an agency action improperly taken under section 714 to one taken under 5 U.S.C. chapter 75—and thus compliant with 38 U.S.C. § 7403(f)—after the evidentiary record had closed. Richardson, 2023 MSPB 1, ¶¶ 30-32. Thus, we reverse the agency action. If the agency wants to take an adverse action against the appellant, it must do so in accordance with the procedures of chapter 75, as required by section 7403(f)(3). 6 ORDER ¶10We ORDER the agency to cancel the appellant’s removal and retroactively restore the appellant to his GS-14 Supervisory Therapeutic Medical Physicist position, effective January 20, 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. ¶11We 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. ¶12We 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). ¶13No 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). ¶14For 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 documentation7 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 RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.8 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 10 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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 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.	Dimitroyannis_Dimitrios_A_CH-0714-22-0156-I-1__Final_Order.pdf	2024-04-19	DIMITRIOS ALEX DIMITROYANNIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-22-0156-I-1, April 19, 2024	CH-0714-22-0156-I-1	NP
1,722	https://www.mspb.gov/decisions/nonprecedential/Woods_Brenda_L_AT-0752-18-0697-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA LYNN WOODS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-18-0697-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brenda Lynn Woods , Memphis, Tennessee, pro se. Lois F. Prince and Bradley Flippin , Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW Effective April 15, 2018, the agency appointed the appellant under 38 U.S.C. § 7401(3) to an excepted service appointment subject to the successful completion of a one-year probationary period. Initial Appeal File (IAF), Tab 1 at 10. According to the Standard Form 50 documenting her appointment, the appellant is preference eligible. Id. Effective August 6, 2018, the agency terminated her for “unacceptable conduct.” Id. at 7-8. The appellant filed an appeal and the administrative judge issued Burgess2 notice appropriate to a preference-eligible probationer in the excepted service. IAF, Tabs 1, 3. In response, the appellant asserted that the Board had jurisdiction over her appeal because she alleged that the agency committed prohibited personnel practices in violation of 5 U.S.C. § 2302(b)(5), (8), and (10). IAF, Tab 7. In its response to the administrative judge’s jurisdictional notice, the agency submitted evidence that the appellant resigned from her position on the date her termination would have been effective. IAF, Tab 9 at 28-33 . 2 An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985 ).2 The administrative judge issued a decision on the written record in which he dismissed the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 4. The administrative judge found that the appellant failed to show that she was an employee with appeal rights under 5 U.S.C. § 7511(a)(1)(B), and thus had no right to appeal either a probationary termination or an involuntary resignation. ID at 2-3. He also found that the appellant could not appeal her separation as an individual right of action (IRA) appeal because she did not allege that she exhausted her administrative remedies with the Office of Special Counsel (OSC). ID at 4. Finally, he found that the Board lacked jurisdiction over the appellant’s claims of prohibited personnel practices absent jurisdiction over the underlying personnel action. ID at 3-4. The appellant petitions for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency responds in opposition to the appellant’s petition for review and the appellant replies to the agency’s response. PFR File, Tabs 3-4. The basis for the appellant’s assertion that the agency terminated her because of alleged whistleblowing is not entirely clear. In her pleadings below, she states that the agency terminated her to prevent her from whistleblowing rather than that it retaliated against her for protected disclosures she had already made. IAF, Tab 7 at 6. The administrative judge did not issue any Burgess notice appropriate to a whistleblowing claim, and the agency did not address IRA jurisdiction in any of its pleadings. However, the Board has held that, when the initial decision itself provides proper Burgess notice such that the appellant has an opportunity to establish jurisdiction in her petition for review, the Board’s obligation to provide notice is satisfied. Caracciolo v. Department of the Treasury, 105 M.S.P.R. 663, ¶ 11 (2007), overruled on other grounds by Brookins v. Department of the Interior , 2023 MSPB 3, ¶ 8. To the extent that the appellant raised a colorable IRA claim, the administrative judge’s finding in the initial decision that she was required to establish exhaustion and did not do so, ID at 4,3 was sufficient to put the appellant on notice that she must submit evidence of exhaustion with her petition for review in order to show jurisdiction over her purported IRA claim. On review, the appellant asserts that she filed a complaint with OSC and that OSC informed her that it would be unable to take any action on her complaint for three to six months. PFR File, Tab 1 at 4. The appellant does not state when she filed an OSC complaint, she does not submit a copy of any OSC complaint or any correspondence from OSC, and she does not specify whether her complaint was of whistleblower reprisal (which is a prerequisite for an IRA appeal) or of prohibited personnel practices (which requires an otherwise appealable action to fall within the Board’s purview). Therefore, the appellant’s bare assertion that she made an unspecified filing with OSC on an unspecified date does not overcome the administrative judge’s finding that she failed to show by preponderant evidence that she exhausted her administrative remedies. As to her separation from service, the appellant was a preference-eligible probationer in the excepted service, appointed under 38 U.S.C. § 7401(3). The Office of Personnel Management’s regulations at 5 C.F.R. subpart 315 apply only to competitive service appointments and to excepted service Veterans Recruitment Appointments. They do not apply to the appellant. See Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 13 (2009) (finding that employees appointed under 38 U.S.C. § 7401(3) are in the excepted service and are not entitled to competitive service protections). Therefore, the Board only has jurisdiction over the appellant’s separation if she can show that she is an “employee” under 5 U.S.C. § 7511(b)(1)(B). In other words, the appellant must show by preponderant evidence that she has completed 1 year of current continuous service in the same or similar positions in an Executive agency or in the U.S. Postal Service or Postal Regulatory Commission. Allen v. Department of the Navy, 102 M.S.P.R. 302, ¶ 7 (2006). “Current continuous service” means a period of employment or service, either in the competitive or excepted service4 that immediately precedes an adverse action, without a break in Federal civilian employment of a work day. Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 14 (2011). The administrative judge found that the appellant has some prior Federal service, but that there is no evidence that this prior service immediately preceded her appointment to the position from which she was terminated. ID at 3. The appellant does not dispute the administrative judge’s finding on review and we discern no contrary evidence in the record. We find that the administrative judge correctly determined that the appellant failed to show that she is an employee with appeal rights under 5 U.S.C. § 7511(a)(1)(B). Similarly, because the appellant has not shown that the Board has jurisdiction over her appeal, the administrative judge correctly found that the Board lacks jurisdiction to consider her allegations of prohibited personnel practices. ID at 3-4; see Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d sub nom. Wren v. Merit Systems Protection Board , 681 F.2d 867, 871 -73 (D.C. Cir. 1982). Finally, the appellant has filed a request for leave to file an additional pleading on the basis that the agency committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) and failed to follow the procedures set forth in 5 C.F.R. § 315.805. PFR File, Tab 6. The Board lacks jurisdiction over the appellant’s purported IRA claim for the reasons set forth above, and her assertion that the agency violated 5 U.S.C. § 2302(b)(8) provides no basis to disturb the administrative judge’s finding. Moreover, even assuming that the appellant’s resignation was not effective and that she was terminated during her probationary period, she was an excepted service employee and was not entitled to the procedural protections of 5 C.F.R. § 315.805. Barrand, 112 M.S.P.R. 210, ¶ 13. Therefore, we DENY her motion for leave to submit an additional pleading. 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	Woods_Brenda_L_AT-0752-18-0697-I-1__Final_Order.pdf	2024-04-19	BRENDA LYNN WOODS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-18-0697-I-1, April 19, 2024	AT-0752-18-0697-I-1	NP
1,723	https://www.mspb.gov/decisions/nonprecedential/Mahoe_Harry_K_SF-0752-21-0579-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HARRY K. MAHOE, JR., Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-0752-21-0579-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant. Alexander D. Bopp , Honolulu, Hawaii, for the agency. John H. Stephenson, Jr. , Fort Shafter, 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 affirmed his removal for conduct unbecoming of a Security Guard. Generally, we grant petitions such as 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 to correct a finding that the appellant’s 19 years of service was an aggravating factor , we AFFIRM the initial decision. The agency’s charge of conduct unbecoming of a Security Guard concerned (1) the appellant’s failing to deescalate a situation with a possibly suicidal patient seeking treatment in an agency medical center’s emergency department, and (2) the appellant’s unnecessary and unreasonable exercise of physical force toward that patient that could have potentially caused harm. Initial Appeal File (IAF), Tab 7 at 46-56. After a hearing, the administrative judge affirmed the agency action. IAF, Tab 34, Initial Decision (ID). On review, the appellant maintains that his actions were the appropriate and measured response to the threat posed by the patient and that the agency’s penalty of removal was excessive. Petition for Review (PFR) File, Tab 1 at 5-11. We disagree and discern no reason to disturb the administrative judge’s findings regarding the merits of the agency charge, the existence of a nexus, and that the appellant failed to prove his affirmative defense of a due process violation. 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); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).2 Regarding the penalty of removal, we agree with the appellant that his 19 years of service was not properly considered in determining the reasonableness of the penalty under the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File, Tab 1 at 11. The Board has held that a deciding official may not consider the length of an employee’s service as an aggravating factor under the logic that an employee with a longer tenure should have known better than to engage in the misconduct. See Shelly v. Department of the Treasury , 75 M.S.P.R. 677, 684 (1997); see also Wentz v. U.S. Postal Service , 91 M.S.P.R. 176, ¶¶ 18-19 (2002), modified on other grounds by Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657, ¶ 15 (2010), overruled by Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 11-18. To the extent that the administrative judge affirmed any determination by the deciding official that the appellant’s length of service was more of an aggravating factor than a mitigating factor, we expressly vacate this finding.2 ID at 33-34; IAF, Tab 7 at 51-52; IAF, Tab 30, February 25, 2022 Hearing Recording (testimony of the deciding official). We clarify that we consider the appellant’s 19 years of service to be a mitigating factor. Nevertheless, we still find that removal is within the parameters of reasonableness. Chavez v. Small Business Administration , 121 M.S.P.R. 168, ¶ 8 (2014) (explaining that when the Board sustains all the agency’s charges but finds errors in the agency’s consideration of the relevant penalty factors, it will mitigate only to the extent necessary to bring the penalty within the parameters of reasonableness). In evaluating the penalty, we will consider, first and foremost, the nature and seriousness of the misconduct and its relationship to the 2 The deciding official testified that the appellant’s length of service was one justification for giving him a harsher penalty than that given to a novice security guard for similar misconduct. IAF, Tab 30 (testimony of the deciding official). However, he identified other, legitimate reasons for the difference in the employees’ penalties, most notably the seriousness of the misconduct. Id. Therefore, we find no reason to disturb the administrative judge’s findings regarding this comparator and note that his analysis is consistent with our recent decision in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. ID at 33-35.3 employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Arena v. U.S. Postal Service , 121 M.S.P.R. 125, ¶ 6 (2014), aff’d, 617 F. App’x 996 (Fed. Cir. 2015) (Table). Here, we find that the appellant’s misconduct was serious, and his poor judgment and inability to maintain control in a stressful situation related directly to his job duties. IAF, Tab 7 at 51-54; ID at 28-35. We also find his prior discipline of a 4-day suspension for the negligent discharge of a firearm an aggravating factor. In sum, after carefully considering the relevant factors, we find that removal is within the bounds of reasonableness. See Douglas, 5 M.S.P.R. at 305-06 (setting forth a nonexhaustive list of factors relevant to the penalty determination in adverse actions). Thus, any error by the agency and the administrative judge in considering the appellant’s length of service did not prejudice the appellant’s substantive rights because, even after properly weighing that factor and crediting the appellant’s 19 years of service, we find that the penalty of removal was reasonable. 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). Accordingly, we affirm the administrative judge’s decision sustaining the appellant’s removal for conduct unbecoming of a Security Guard. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at5 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,6 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,7 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 132 Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Mahoe_Harry_K_SF-0752-21-0579-I-1__Final_Order.pdf	2024-04-19	null	SF-0752-21-0579-I-1	NP
1,724	https://www.mspb.gov/decisions/nonprecedential/Russell_StephanieAT-0752-21-0524-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEPHANIE RUSSELL, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER AT-0752-21-0524-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Southworth , Esquire, and Jesse L. Kelly, II , Esquire, Atlanta, Georgia, for the appellant. William V. Cochrane, Jr. , and Holly Buchanan , Eglin Air Force Base, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained 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). 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 The appellant, who was a GS-13 Logistics Management Specialist, was approved for 60 days of Weather and Safety Leave (WSL) effective March 23, 2020, due to identifying as high-risk for COVID-19. Initial Appeal File (IAF), Tab 28 at 10. Shortly thereafter, the agency updated its WSL policy, requiring that, in order for supervisors to approve WSL, individuals must provide a self-certification form and substantiating documentation from a medical provider confirming that the individual met the Centers for Disease Control and Prevention high-risk criteria for COVID-19. IAF, Tab 17 at 17-19. Despite multiple instructions, reminders, and extensions, the appellant failed to provide her supervisor with the required WSL documentation. Id. at 21-31; Hearing Recording (HR) (testimony of the appellant’s supervisor). Furthermore, the appellant, who had been sporadically responding to her supervisor’s communications, stopped responding entirely in August 2020. IAF, Tab 17 at 21-28; HR (testimony of the appellant’s supervisor). Therefore, the appellant’s supervisor sent a letter dated October 9, 2020, to the appellant’s address on file, which was a P.O. Box, advising the appellant that 3 she must either submit her WSL documentation by October 19, 2020, or return to duty on October 20, 2020. IAF, Tab 17 at 23, 29-31; HR (testimony of the appellant’s supervisor). The letter also advised the appellant that if she did not submit her WSL documentation, her WSL would be converted to another leave status, and if she did not return to duty as instructed, she would be charged with absence without leave (AWOL). IAF, Tab 17 at 30. After receiving confirmation that the letter was delivered to the appellant’s P.O. Box on October 13, 2020, the appellant’s supervisor called the appellant and left a voicemail, advising her that a document had been delivered containing an October 19, 2020 deadline. Id. at 25; HR (testimony of the appellant’s supervisor). The appellant did not submit the WSL documentation, nor did she return to duty; therefore, the agency started carrying her in an AWOL status on October 20, 2020. HR (testimony of the appellant’s supervisor). The appellant’s supervisor called the appellant to let her know she was being carried in an AWOL status, and when the appellant returned her call on October 21, 2020, the appellant claimed to have never received the October 9, 2020 letter because she did not use her P.O. Box. IAF, Tab 17 at 29; HR (testimony of the appellant’s supervisor, testimony of the appellant). The appellant’s supervisor also advised her that she would be AWOL until she either returned to work or provided the WSL documentation. IAF, Tab 17 at 25-26, 29; HR (testimony of the appellant’s supervisor). Approximately 2 weeks later, the appellant finally obtained the WSL documentation, but did not send it to her supervisor, choosing instead to send it to a staff attorney at the Office of Special Counsel (OSC) assigned to her pending OSC complaint.2 IAF, Tab 17 at 27; HR (testimony of the appellant’s supervisor, testimony of the appellant). Despite multiple requests, the appellant refused to send her supervisor a copy of the documents, even though her supervisor 2 OSC provided a copy of the WSL documents to the agency’s legal office at Eglin. IAF, Tab 17 at 27. 4 informed her that she would continue to be carried in an AWOL status until she (the supervisor) received a copy of the WSL documents. IAF, Tab 17 at 27-28; HR (testimony of the appellant’s supervisor). Eventually, on or around November 30, 2020, the appellant’s supervisor received the appellant’s WSL documents from the agency’s legal office, and the appellant was placed again on WSL, even though she never complied with her supervisor’s instructions to provide the WSL documentation directly to the supervisor. HR (testimony of the appellant’s supervisor). Based on these events, the appellant was removed based on two charges. IAF, Tab 17 at 4-5, Tab 18 at 15-17. The first charge, failure to follow instructions, was supported by three specifications. IAF, Tab 17 at 4. The first specification was based on the appellant’s refusal to submit the WSL documentation to her supervisor. Id. The second specification was based on the appellant’s failure to provide her supervisor with valid contact information where she could be reached. Id. Finally, the third specification addressed the appellant’s failure to report to duty on October 20, 2020. Id. The second charge, AWOL, was supported by a single specification, alleging that the appellant was AWOL from October 20 until November 30, 2020. Id. at 4-5. After holding a hearing, the administrative judge sustained the removal, finding that the agency proved its two charges,3 established nexus, and established that the penalty of removal was reasonable. IAF, Tab 34, Initial Decision (ID) at 16-24. He also denied the appellant’s affirmative defenses, including her whistleblower reprisal claim. ID at 24-30. On review, the appellant challenges, among other things, the administrative judge’s findings on the merits of the sustained charges and specifications, the reasonableness of the 3 The administrative judge did not sustain the third specification of the failure to follow instructions charge, and found that agency improperly carried the appellant in an AWOL status on October 20 and October 21, 2020, because the agency failed to prove that the appellant actually received the return to duty instruction before October 21, 2021. ID at 19-20. Neither party disputes these findings and they do not impact the outcome of this case. Therefore, we need not address them. 5 penalty, and the denial of her whistleblower reprisal claim. Petition for Review (PFR) File, Tab 1. DISCUSSION OF ARGUMENTS ON REVIEW Overall, we find that the administrative judge’s findings are well-reasoned, thorough, and supported by the record, and we find no basis to disturb them. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (explaining that 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). However, we do take this opportunity to clarify the administrative judge’s findings as they relate to the appellant’s affirmative defense of whistleblower reprisal. ID at 25-30. To prevail on her whistleblower reprisal affirmative defense, an appellant must prove by preponderant evidence that she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and 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). Covington v. Department of the Interior , 2023 MSPB 5, ¶ 15. If the appellant proves that her protected disclosure or activity was a contributing factor in a personnel action taken against her, the agency is then given the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Id., ¶ 45; see 5 U.S.C. § 1221(e). In determining whether an agency has met its burden, the Board will consider all relevant factors, including the following: (1) the strength of 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 do not 6 engage in such protected activity, but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999); see Duggan v. Department of Defense , 883 F.3d 842, 846 (9th Cir. 2018); Covington, 2023 MSPB 5, ¶ 45. On review, the appellant argues that her removal was taken in retaliation for making protected disclosures, including disclosing alleged violations of law, rule, or regulations, as well as engaging in protected activity by filing an OSC complaint. PFR File, Tab 1 at 17-21. As an initial matter, the administrative judge correctly found that, although the appellant failed to establish that her protected disclosures were a contributing factor in her removal,4 she did establish that her OSC complaint was a protected activity that was a contributing factor in the removal. ID at 25-30. Furthermore, while we agree with the administrative judge that the agency proved by clear and convincing evidence that it would have removed the appellant absent her whistleblowing, ID at 29-30, we find that his analysis of the second and third Carr factors requires clarification, as explained below. 4 The administrative judge found that the appellant failed to satisfy the contributing factor standard because her disclosures were made in 2017, such that too much time had lapsed to establish the timing prong of the knowledge/timing test, and she failed to establish it by other means. ID at 26-28. As noted by the appellant in her petition for review, however, she raised her 2017 disclosures again in an email in March 2020. PFR File, Tab 1 at 20; IAF, Tab 27 at 56-61. Thus, she meets the timing prong of the knowledge/timing test. However, the appellant still fails to establish contributing factor through the knowledge/timing test because she did not prove that the deciding official had any knowledge of the March 2020 email, or was influenced by anyone that did have knowledge of the disclosure. See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 12 (2012) (stating that, in determining whether an appellant has proven contributing factor, “a lack of actual knowledge by a single official is not dispositive”). Furthermore, as correctly found by the administrative judge, none of the other considerations, i.e., the strength of the agency’s evidence, the fact that the deciding official was not the target of her disclosures, and the lack of any evidence establishing retaliatory intent, established contributing factor. ID at 28. Accordingly, because the administrative judge’s error had no impact on the substantive rights of the parties, such error does not serve as a basis to disturb the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984 ). 7 The second Carr factor weighs in favor of the agency because there is no evidence of a professional or personal retaliatory motive on the part of the deciding official. The administrative judge found that there was “no basis to infer a retaliatory motive on [the deciding official’s] part” because the deciding official knew nothing of the appellant’s OSC complaint other than its mere existence, and the deciding official’s professional demeanor left the administrative judge with the “firm impress[ion] that he had no interest in [the OSC complaint].” ID at 29. To the extent that the administrative judge failed to consider whether the deciding official may have had a professional motive to retaliate, that was an error. Nevertheless, upon reviewing the record, we discern no evidence of a retaliatory motive on the part of the deciding official, either personal or professional. The U.S. Court of Appeals for the Federal Circuit has cautioned the Board from taking too narrow of a view of the second Carr factor. For instance, in Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012), the court explained that, “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Similarly, in Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016), the court instructed the Board not to limit its consideration of a motive to retaliate to the appellant’s supervisors, but to examine whether a retaliatory motive could be imputed more broadly to other officials or entities involved in the decision. Then, in Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, while there may not be a personal motive, the administrative judge erred by failing to consider whether the deciding official had a “professional retaliatory motive” against the appellant because his disclosures “implicated the capabilities, performance, and veracity of 8 [agency] managers and employees, and implied that the [agency] deceived [a] Senate Committee.” Thus, the administrative judge here should have expressly considered the possibility of a professional retaliatory motive. However, although the Federal Circuit has directed the Board to consider the possibility of a professional retaliatory motive, it has not mandated that we find such motive in every whistleblower appeal. For instance, in Robinson, after taking into consideration the administrative judge’s demeanor-based credibility determinations, the court agreed with the administrative judge that there was no retaliatory motive, either professional or personal, and found that the second Carr factor weighed in favor of the agency. Robinson, 923 F.3d at 1019-20. Similarly, here, taking into consideration the administrative judge’s demeanor-based credibility findings, we find no evidence of a retaliatory motive on the part of the deciding official, either personal or professional.5 Absent merely knowing that the appellant filed an OSC complaint, the record is entirely devoid of evidence demonstrating that the deciding official harbored any motive to retaliate, either personal or professional. Accordingly, we discern no sufficiently sound reason to disturb the administrative judge’s demeanor-based credibility finding that the deciding official had no motive to retaliate. ID at 29; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the Board may overturn an administrative judge’s demeanor-based credibility determinations only when it has “sufficiently sound” reasons for doing so). In conclusion, having considered the possibility of a professional retaliatory motive, we agree with the administrative judge that there is no such motive in this appeal. However, even if we were to find that there was a slight 5 While we recognize that the appellant’s supervisor, i.e., the proposing official, may have had a motive to retaliate because the appellant’s whistleblowing named her, IAF, Tab 27 at 56-61, and she was aware of the pending OSC complaint, IAF, Tab 17 at 5, 25, the appellant has put forth no evidence demonstrating that the proposing official had any influence on the deciding official’s decision to sustain the proposed removal. 9 motive to retaliate on the agency’s part, in light of the overwhelming evidence supporting the appellant’s removal, we would still find that the agency met its burden to present clear and convincing evidence in support of its action. The third Carr factor cannot weigh in favor of the agency, but even if it slightly cuts against it, the agency has still met its clear and convincing burden. Regarding the third Carr factor, the administrative judge stated that this factor was neutral because “neither party identified any comparators.” ID at 29. To the extent that the administrative judge’s statement implies that it was the appellant’s burden to produce comparators, that is incorrect. It is the agency that carries the burden of proving by clear and convincing evidence that the same action would have been taken absent the whistleblowing. Whitmore, 680 F.3d at 1374. Furthermore, because it is the agency’s burden of proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Thus, while we see no need to disturb the administrative judge’s finding that the third Carr factor was neutral, we note that, even if this factor weighed slightly in favor of the appellant, given the strength of the agency’s evidence in support of removal, the agency still proved by clear and convincing evidence that it would have removed the appellant absent her whistleblowing. NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 11 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 12 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 13 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. 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.	Russell_StephanieAT-0752-21-0524-I-1__Final_Order.pdf	2024-04-19	STEPHANIE RUSSELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-21-0524-I-1, April 19, 2024	AT-0752-21-0524-I-1	NP
1,725	https://www.mspb.gov/decisions/nonprecedential/Warby_Jeremy_R_DE-315H-21-0165-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JEREMY R. WARBY, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-315H-21-0165-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeremy R. Warby , Ogden, Utah, pro se. Don Cornell Evans , Hill Air Force Base, 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 dismissed his probationary termination appeal because the doctrine of collateral estoppel barred relitigation of the issue of the Board’s jurisdiction over the matter. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the Board lacks jurisdiction to consider the appellant’s disability discrimination claim, we AFFIRM the initial decision. DISCUSSION OF ARGUMENTS ON REVIEW The appellant filed an earlier Board appeal challenging the agency’s termination of his employment 17 months into his 2-year probationary period. Warby v. Department of the Air Force , MSPB Docket No. DE-315H-21-0111-I-1, Initial Appeal File (0111 IAF), Tab 1. The administrative judge dismissed that appeal for lack of jurisdiction. 0111 IAF, Tab 10. The appellant then filed the instant Board appeal, which again challenged the merits of his probationary termination and appeared to assert that the termination was discriminatory based on his disability. Warby v. Department of the Air Force , MSPB Docket No. DE-315H-21-0165-I-1, Initial Appeal File (0165 IAF), Tab 1. The administrative judge issued a jurisdictional order and an issue preclusion order, which notified the appellant that the Board generally lacks jurisdiction over probationary termination claims and that it appeared that the same claim was previously litigated in an earlier appeal and was therefore barred by the doctrine of collateral estoppel. 0165 IAF, Tabs 3-4. The appellant did not file a response. Accordingly, the administrative judge dismissed the appeal for lack of2 jurisdiction, applying the doctrine of collateral estoppel because the jurisdictional issue was identical to that involved in a prior action, the issue was actually litigated in the prior action, determination on the issue was necessary to the resulting judgment, and the appellant had a full and fair opportunity to litigate the issue in the prior action. 0165 IAF, Tab 6, Initial Decision (ID) at 2-4. We agree with the administrative judge that relitigation of the appellant’s probationary termination claim is barred by the doctrine of collateral estoppel for the reasons set forth in the initial decision. ID at 2-4; see Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶¶ 11-14 (2003) (applying collateral estoppel to bar relitigation of jurisdictional issues actually litigated in a prior appeal). To the extent the appellant raised a claim of disability discrimination in the instant appeal, the administrative judge did not explicitly address it in the initial decision. 0165 IAF, Tab 1 at 6; Petition for Review File, Tab 1 at 1. The initial decision in the appellant’s prior appeal also did not resolve any such claim. 0111 IAF, Tab 10. However, we find that this discrimination allegation is not an independent source of Board jurisdiction. See Noble, 93 M.S.P.R. 693, ¶ 14; Fogerty v. Department of the Treasury , 53 M.S.P.R. 168, 170 (1992). Based on the foregoing, we deny the petition for review and affirm the initial decision as expressly modified herein. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Warby_Jeremy_R_DE-315H-21-0165-I-1__Final_Order.pdf	2024-04-19	JEREMY R. WARBY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-315H-21-0165-I-1, April 19, 2024	DE-315H-21-0165-I-1	NP
1,726	https://www.mspb.gov/decisions/nonprecedential/Palmeri_Nicholas_J_DC-0752-22-0341-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NICHOLAS J. PALMERI, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-0752-22-0341-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joel J. Kirkpatrick , Esquire, Plymouth, Michigan, for the appellant. Kaymi Y. Ross , Springfield, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his constructive removal appeal for lack of jurisdiction. The administrative judge found that, as a member of the Drug Enforcement Agency Senior Executive Service, the appellant does not have adverse action appeal rights with the Board. On petition for review, the appellant reargues this jurisdictional issue. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 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	Palmeri_Nicholas_J_DC-0752-22-0341-I-1__Final_Order.pdf	2024-04-19	NICHOLAS J. PALMERI v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-22-0341-I-1, April 19, 2024	DC-0752-22-0341-I-1	NP
1,727	https://www.mspb.gov/decisions/nonprecedential/Qamar_Jaffer_K_DC-1221-21-0476-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAFFER K. QAMAR, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-1221-21-0476-W-1 DATE: April 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jaffer K. Qamar , Greenbelt, Maryland, pro se. Michael N. Spargo , Esquire, South Burlington, Vermont, 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). BACKGROUND The appellant is a GS-14 Economist with the agency’s Immigrant Investor Program Office (IPO). Initial Appeal File (IAF), Tab 1 at 1. His job duties include running security checks on individuals and business entities that seek immigration benefits to ensure national security and public safety. IAF, Tab 10 at 8. On June 22, 2020, the agency proposed the appellant’s removal based on charges of failure to follow policy, procedure, or instruction, and lack of candor. IAF, Tab 1 at 7-11. The deciding official sustained one of the charges and mitigated the removal to a 14-day suspension. Id. The appellant filed a whistleblower retaliation complaint with the Office of Special Counsel (OSC) and subsequently filed this IRA appeal with the Board challenging his suspension and other personnel actions taken by the agency. IAF, Tab 1 at 27, Tab 14 at 4-18. The administrative judge issued a jurisdictional order instructing the appellant how to establish jurisdiction over his IRA appeal. IAF, Tab 5. The appellant submitted several narrative responses totaling over 100 pages. IAF, Tabs 6-7, 12, 14-15, 17, 22-23, 26-28, 32, 36. In an initial decision based on the written record, the administrative judge found that the appellant did not make a nonfrivolous allegation that he made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8) and that he failed to nonfrivolously allege that his protected activity was a contributing factor in the personnel actions at issue. IAF, Tab 37, Initial Decision (ID) at 4-8. Accordingly, she dismissed the appeal for lack of jurisdiction. ID at 9. The appellant has filed a petition for review, the agency filed a response, and the appellant submitted a reply. Petition for Review (PFR) File, Tabs 4, 6-7. DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes nonfriovlous allegations that (1) he engaged in whistleblowing activity by making a disclosure protected 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 was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The question of whether the appellant has made a nonfrivolous allegation at the jurisdictional stage is based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1368-69 (Fed. Cir. 2020). In the initial decision, the administrative judge found that the appellant exhausted one protected disclosure and the following personnel actions: a 2018 letter of reprimand, a 2020 performance rating, a proposed removal, and a 14-day suspension. ID at 4. The administrative judge found that the appellant failed to nonfrivolously allege that his alleged disclosure was covered by 5 U.S.C. § 2302(b)(8) and that he failed to nonfrivolously allege that his protected disclosure was a contributing factor to the personnel actions at issue. ID at 4-8. For the reasons set forth herein, we vacate the dismissal for lack of jurisdiction, and we remand this appeal to the regional office for adjudication on the merits. The appellant exhausted his administrative remedies with OSC. An appellant in an IRA appeal must exhaust his administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. 5 U.S.C. § 1214(a)(3). The exhaustion requirement is met when an appellant provided OSC with a sufficient basis to pursue an investigation; however, an appellant may give a more detailed account of his whistleblowing activity before the Board than he did to OSC. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through his initial OSC complaint or correspondence with OSC. Id., ¶ 11. Exhaustion must be proved by preponderant evidence. Id. On review, the appellant has not challenged the administrative judge’s finding with respect to the exhausted personnel actions, and we find no reason to disturb it, with the exception of clarifying that the 2020 performance rating at issue is a midyear rating. IAF, Tab 1 at 14; ID at 4. Regarding the appellant’s protected disclosures, the administrative judge accepted OSC’s summarization in its close-out letter—intermittent complaints about the agency’s policies concerning TECS,2 the system used to conduct immigration screening and to render determinations—and found that any additional disclosures that the appellant raised in his pleadings were not exhausted with OSC. ID at 4-7. We find that the characterization of the appellant’s protected disclosures by OSC, and in the initial decision, is too broad and that a fair reading of the appellant’s correspondence with OSC reveals the following disclosures: (1) on unspecified dates between 2015 and 2017, and again in August 2017, the appellant notified the IPO Chief that the agency was conducting extensive TECS checks, which he believed to be outside the scope of his duties and against agency policy and guidelines, IAF, Tab 1 at 15-16; (2) in December 2017, the appellant informed the Director of the Office of Security and Integrity about “holes, problems, inconsistencies, and vulnerabilities” in the agency’s TECS procedures, id. at 17; and (3) in July 2019, the appellant complained to the IPO Chief that the Division Chief instructed the appellant to reverse proposed decisions on eligibility and to use a higher evidentiary standard to deny cases, resulting in a lower bar for approval and a higher approval rate, id. at 19-22. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011) (stating that an appellant may 2 According to publicly available information published by the agency, “TECS is an automated enforcement and inspection lookout system that combines information from multiple agencies, databases, and system interfaces to compile data relating to national security risks, public safety issues, current or past targets of investigations, and other law enforcement concerns.” Department of Homeland Security, USCIS Electronic Immigration System (Dec. 3, 2018), https://www.dhs.gov/sites/default/files/ publications/pia-uscis-elis056a-december2018.pdf at 7 (last visited Apr. 17, 2024). demonstrate exhaustion through his initial OSC complaint or correspondence with OSC). The appellant nonfrivolously alleged that he made protected disclosures pursuant to 5 U.S.C. § 2302(b)(8). Next, we consider whether the appellant nonfrivolously alleged that he made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8). A protected disclosure is a disclosure of information that the appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Salerno, 123 M.S.P.R. 230, ¶ 6. We consider each of the three disclosures in turn. First, the appellant alleged that he complained to the IPO Chief that the agency was conducting extensive TECS checks on individuals without justification and without the proper authority. IAF, Tab 1 at 15-16, Tab 3 at 12-13. In support of his assertion, he cites to the manual that prescribes guidelines and policies for adjudication,3 IAF, Tab 10 at 163-66, and states that the manual and his certification courses instructed him not to do TECS checks on individuals who are not beneficiaries. IAF, Tab 3 at 24. The appellant’s pleadings do not identify which law, rule, or regulation he believes the agency violated by number or title; however, that is not required, particularly at the jurisdictional stage. See Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 19 (2013) (stating that an employee need not identify a statutory or regulatory provision by title or number when the employee’s statements and the circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, or regulation). We further note that, on review, the appellant has alleged that the 3 The appellant did not submit the manual with any of his jurisdictional submissions, but the agency submitted excerpts of the manual as part of its file, and it appears that the manual was provided to the appellant as an exhibit to the notice of proposed removal. Neither party disputes the authenticity or accuracy of the excerpted portion of the manual submitted by the agency. agency violated individuals’ privacy rights pursuant to several laws, including the Immigration and Nationalization Act. PFR File, Tab 4 at 5. We therefore find that the appellant’s disclosure meets the nonfrivolous allegation standard. Concerning the second disclosure, the appellant has not identified which “holes, problems, inconsistencies, and vulnerabilities” in the agency’s TECS procedures he allegedly reported. Moreover, it appears that TECS combines information from multiple agencies and the appellant has not clearly alleged that the agency’s acts or omissions caused the alleged issues concerning TECS. The appellant’s general statement about “holes, problems, inconsistencies, and vulnerabilities” without any explanation as to how he reasonably believed that these issues evidenced a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety is insufficient to constitute a nonfrivolous allegation that his disclosure was protected. We therefore find that this allegation is too vague to support a finding that the appellant’s disclosure falls under 5 U.S.C. § 2302(b)(8). See Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006) (stating that a protected disclosure must be specific and detailed, not a vague allegation of wrongdoing regarding broad or imprecise matters). As to the third disclosure, we find that the appellant adequately explained, in his letter to OSC and in his subsequent pleadings to the administrative judge, why he believed that the Division Chief was acting improperly by using a higher evidentiary standard to deny cases, and on review, the appellant identifies various laws, rules, or regulations that he believes the agency violated. IAF, Tab 1 at 19-22; PFR File, Tab 4 at 5-6. The record also supports a finding that the appellant’s disclosure may have implicated a matter of public safety. The decision letter imposing the 14-day suspension states the following: The work that the IPO office performs is important, and often the subject of Congressional interest. In your position, you are responsible for running appropriate security checks for individuals and corporate entities that seek immigration benefits. It is extremely important that you perform these very necessary and important security checks, and all of your duties, in a thorough manner in order to help ensure national security and public safety. IAF, Tab 1 at 8. Thus, by the agency’s own characterization, failure to conduct security checks in the manner prescribed by the relevant laws, policies, and procedures could result in damage to national security and public safety. We therefore find that the appellant has met the nonfrivolous allegation standard as to this disclosure. The appellant nonfrivolously alleged that his protected disclosure was a contributing factor in the personnel actions at issue. As set forth above, the administrative judge identified the following personnel actions: a 2018 letter of reprimand, a 2020 midyear performance rating, a proposed removal, and a 14-day suspension. ID at 4. The appellant may demonstrate that a protected disclosure was a contributing factor in a personnel action through circumstantial evidence, including, but not limited to, evidence that the official taking the personnel action knew of the protected activity and that the personnel action occurred within a period of time such that a reasonable person could conclude that the protected disclosure was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); see Easterbrook v. Department of Justice, 85 M.S.P.R. 60, ¶ 7 (2000). The appellant has alleged that he disclosed wrongdoing to, and about, numerous agency officials, including the Division Chief and the IPO Chief. He has also alleged that the IPO Chief informed the Division Chief, who was the subject of the July 2019 complaint, about the disclosure. IAF, Tab 1 at 20. Thus, we assume for jurisdictional purposes that the individuals who took the personnel actions were aware of the appellant’s complaints. We also find that the personnel actions occurred within a period of time such that a reasonable person could conclude that the protected disclosures were a contributing factor. The appellant asserted that after his August 2017 email to the Acting Chief regarding extensive TECS checks, he was summoned to a meeting by several management officials, including the Division Chief, where he was cautioned that his email to the Acting Chief was “disrespectful” and that he should submit his concerns only to his direct supervisor. IAF, Tab 1 at 16. At the meeting, he was notified that his supervisor was initiating a review of all the cases that the appellant had adjudicated. Id. He alleged that he was issued a letter of reprimand in May 2018 as a result of the heightened scrutiny. IAF, Tab 3 at 7. Approximately 5 months after his July 2019 disclosure that the Division Chief was instructing him to lower the evidentiary standard for denying cases, the Division Chief reported a mistake in one of the appellant’s cases to the Chief, which resulted in the negative midyear evaluation, the notice of proposed removal, and the 14-day suspension. Id. at 14-15. We therefore find that the appellant has nonfrivolously alleged that his protected disclosures were a contributing factor to the personnel actions taken by the agency. See Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 87 (2001) (finding the appellant proved contributing factor when the agency proposed her suspension 18 months after her protected disclosure and removed her 3 1/2 months thereafter).4 For these reasons, we find that the appellant has established jurisdiction over his IRA appeal, and we remand this case to the regional office for a hearing on the merits. Prior to conducting a hearing, the administrative judge shall afford the parties a reasonable opportunity to complete discovery and order the parties to 4 On remand, the parties and the administrative judge should address whether the midyear evaluation in this case constitutes a personnel action. Compare King v. Department of Health and Human Services , 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (finding that a midyear Progress Review did not constitute a personnel action and that “progress reports in general are not ‘performance evaluations’ for purposes of the [Whistleblower Protection Act]”), with Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 23-25 (2015) (finding that the appellant made a nonfrivolous allegation that comments to him during a midterm progress review constituted a threatened personnel action). submit any other evidence that the administrative judge deems necessary to adjudicate the merits of the appeal. Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 14 (2016). ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order.5 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 5 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order.	Qamar_Jaffer_K_DC-1221-21-0476-W-1__Remand_Order.pdf	2024-04-19	JAFFER K. QAMAR v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-21-0476-W-1, April 19, 2024	DC-1221-21-0476-W-1	NP
1,728	https://www.mspb.gov/decisions/nonprecedential/Stump_Linda_S_PH-0432-20-0223-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LINDA S. STUMP, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER PH-0432-20-0223-I-1 DATE: April 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Randolph Elliott , Camp Hill, Pennsylvania, for the appellant. Owen J. Hoover , New Cumberland, 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 her removal for unacceptable performance 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 Northeast Regional Office for further adjudication consistent with Santos v. National Aeronautics & 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 a WG-05 Materials Handler for the agency. Initial Appeal File (IAF), Tab 6 at 13. Her job entailed working in a warehouse to stock items and fulfill ticketed orders. Id. at 105. The appellant’s performance plan consisted of three critical elements – Process Compliance, Work Output Quantity, and Work Output Quality. IAF, Tab 6 at 30-33. Her performance in each element, as well as her overall performance, was rated on a three-tiered scale, ranging from Outstanding to Fully Successful to Unacceptable. Id. A rating of Unacceptable in one element would automatically result in a summary rating of Unacceptable. Id. at 33. The focus of the instant appeal is the Work Output Quantity element, which is essentially an employee’s rate of production. The agency determines this rate by dividing the number of warehouse production actions (picking and stowing) that an employee has performed by the number of production hours that it took her to perform them. This actual production rate is then expressed as a percentage of a standard rate. This standard rate is the number of warehouse production actions that an employee should be able to perform every hour on average. In this case, the standard rate was 22 actions per hour. Hearing Recording, Track 2 at 21:45 (testimony of the appellant’s supervisor). To achieve a rating of Fully Successful, the appellant would need to achieve a production rate of at least 90% of the standard rate. Anything less than that would be deemed Unacceptable. Id. at 137. On March 29, 2019, the appellant’s supervisor issued her a 90-day performance improvement plan (PIP) to address her performance in the critical element of Work Output Quantity. Id. at 127-29. The notice contained a chart of the appellant’s output quantity over the previous 7 months and explained that her monthly production level was unacceptable in 5 of those 7 months. Id. at 128. The notice further informed the appellant that her supervisor would meet with her on a weekly basis during the PIP period to discuss her performance and assist her 3 in organizing and prioritizing her work. Id. The appellant was advised that, if she failed to demonstrate acceptable performance during the PIP period (essentially, April, May, and June 2021) and maintain acceptable performance for 1 year, the agency could take action to reassign, demote, or remove her. Id. The appellant’s production during these 3 months was closely monitored, and she had weekly meetings about it with her supervisor, who kept her apprised of her production rate and advised her on how to improve it. The supervisor also asked the appellant every week whether there was anything more he could do to help, but the appellant always responded that there was not. Id. at 36-126. After the close of the PIP period, on August 6, 2019, the appellant met with her supervisor, who informed her that her production rate during the PIP was 70% and that she had therefore failed to improve her performance to the Fully Successful level. Id. at 35. On September 24, 2019, the agency proposed the appellant’s removal under 5 U.S.C. chapter 43, for unacceptable performance in the critical element of Work Output Quantity. Id. at 21-24. After the appellant responded, the agency issued a decision removing her effective February 19, 2020. Id. at 13-20. The appellant filed a Board appeal, challenging the merits of the agency’s action and raising affirmative defenses of disability discrimination and harmful procedural error. IAF, Tab 1 at 4, 6, Tab 11. After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 14, Initial Decision (ID). He found that the agency met its burden of proof on each of the elements of its case and that the appellant failed to prove her affirmative defenses. Id. at 3-15. The appellant has filed a petition for review, renewing her disability discrimination claim and arguing that the administrative judge abused his 4 discretion in one of his witness rulings. Petition for Review (PFR) File, Tab 1. The agency has filed a response.1 PFR File, Tab 3 ANALYSIS At the time the initial decision was issued, the Board’s case law stated that, in a performance-based action under 5 U.S.C. chapter 43, an agency must establish by substantial evidence that: (1) the Office of Personnel Management approved its performance appraisal system; (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 agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to improve; and (5) the appellant’s performance remained unacceptable in at least one critical element.2 White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013). The administrative judge addressed each of these elements in turn and found that the agency carried its burden with respect to all of them. ID at 3-8. We affirm the administrative judge’s findings in this regard. These findings are supported by the record, and the appellant does not challenge them on petition for review. 1 After the appellant filed her petition for review, the Clerk of the Board sent a standard petition for review acknowledgment letter to the appellant, the appellant’s representative, and the agency’s representative. PFR File, Tab 2. The appellant’s copy was sent by U.S. mail to her address of record. Id. at 5; IAF, Tab 1 at 1. However, her copy of the letter was returned by the U.S. Postal Service as undeliverable, with the explanation “NO SUCH STREET UNABLE TO FORWARD.” Nevertheless, the appellant’s representative received an electronic copy of the acknowledgment letter, and we find no indication that the appellant’s substantive rights were prejudiced by her failure to receive a copy of the letter personally. See Crespo v. U.S. Postal Service , 53 M.S.P.R. 125, 128-29 (1992) aff’d, 996 F.2d 319 (Fed. Cir. 1993) (Table). 2 In his initial decision, the administrative judge set forth the standard as found in Kadlec v. Department of the Army , 49 M.S.P.R. 534, 539 (1991). ID at 2-3. This formulation omits the fifth element, i.e., that the agency must show by substantial evidence that the employee’s performance remained unacceptable. Nevertheless, the administrative judge explicitly addressed this element in his initial decision. ID at 8. 5 See 5 C.F.R. § 1201.115 (“The Board normally consider only issues raised in a timely-filed petition or cross-petition for review.”). Nor does the appellant contest the administrative judge’s finding that she failed to prove her affirmative defense of harmful procedural error. ID at 8 -10. The appellant argued that the agency violated the applicable Master Labor Agreement by not addressing her performance deficiencies “as early as possible.” ID at 9; IAF, Tab 6 at 3. However, for the reasons explained in the initial decision, we agree with the administrative judge that the appellant failed to identify any procedural error that the agency made in this regard, much less a procedural error that may have affected the outcome of its decision. ID at 8-10; see LeBlanc v. Department of Transportation , 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table). The appellant does, however, contest the administrative judge’s findings on her status-based disability discrimination claim. PFR File, Tab 1 at 4. To prove such a claim, an appellant must show that she is a qualified individual with a disability and that her disability was at least a motivating factor in the agency’s action.3 Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28; Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 40. If the appellant meets her burden, the Board will then inquire whether the agency has shown by preponderant evidence that it still would have taken the contested action in the absence of the discriminatory motive. If the Board finds that the agency has made that showing, the appellant’s relief may be limited. Id., ¶ 42. In this case, the administrative judge found that the appellant failed to show that she had a “disability” within the meaning of 29 C.F.R. § 1630.2(g), and even if she did, she failed to show that her disability was a motivating factor in her removal. ID at 13-15. Specifically, the administrative judge found that the appellant did not identify her allegedly disabling condition or provide evidence of 3 To receive the full measure of relief available under the statute, an appellant must prove that her disability was a but-for cause of the agency’s action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 40. 6 that condition and its effect on any major life activity. ID at 13; see Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 21 (2009) (denying the appellant’s status-based disability discrimination claim because she failed to prove that she was disabled). He also found that, even assuming that the appellant was a qualified individual with a disability, the responsible agency officials were unaware of her alleged disability, and the appellant otherwise presented no evidence to suggest that her alleged disability was a motivating factor in her removal. ID at 13-15; see Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 33 (2016) (denying the appellant’s status-based disability discrimination claim because he failed to prove that his disability was a motivating factor in his suspension). On petition for review, the appellant states merely, “29 CFR 1607.11 Disparate Treatment. The Appellant believes that she clearly demonstrated that the Agency discriminated on her.” Before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect, and identify the specific evidence in the record that demonstrates the error . Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980). We find that the appellant’s argument constitutes mere disagreement with the administrative judge’s reasoned and explained findings, and therefore does not provide any basis to grant the petition for review. See id. at 133-34. The citation provided by the appellant is to a regulation that does not apply to the facts of this case. Under its own terms, 29 C.F.R. § 1607.11 applies only to selection procedures and concerns discrimination under Title VII, to the exclusion of discrimination based on disability. See 29 C.F.R. § 1607.2(A). The appellant also argues that the administrative judge should have allowed her to call the proposing official as a witness. PFR File, Tab 1 at 3-4. Under 5 C.F.R. § 1201.41(b)(8), an administrative judge has broad authority to rule on witnesses, and his rulings on such matters will not be overturned absent an abuse of discretion. In this case, the appellant did not list the proposing official as a 7 witness in a prehearing submission. In fact, she did not file a prehearing submission, and so the administrative judge ruled, prior to the hearing, that the appellant herself would be permitted to testify but that she would not be permitted to call any other witnesses. IAF, Tab 11 at 7-8. Therefore, when the appellant attempted to call the proposing official as a witness, the administrative judge denied her request. Hearing Recording, Track 6 at 13:30. Although the agency identified the proposing official as a witness in its prehearing submissions, it ultimately declined to call her. PFR File, Tab 1 at 3; IAF, Tab 10 at 6. The Board has consistently found that an administrative judge does not abuse his discretion by disallowing witnesses who were not included in a party’s witness list. E.g. Stewart-Maxwell v. U.S. Postal Service , 56 M.S.P.R. 265, 271 (1993). This is so even if that witness was included in the opposing party’s list and the opposing party declined to call the witness. Dubiel v. U.S. Postal Service , 54 M.S.P.R. 428, 432 (1992). Moreover, the appellant has not explained what testimony she hoped to elicit from the proposing official or how that testimony might be material to the outcome of the appeal. See Butler v. Department of the Air Force, 73 M.S.P.R. 313, 317 (1997); 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). Therefore, we find the appellant’s argument of error by the administrative judge unpersuasive. Nonetheless, we must remand this appeal for another reason. During the pendency of the petition for review in this case, the United States Court of Appeals for the Federal Circuit held in Santos, 990 F.3d at 1360-61, that in addition to the five elements of the agency’s case set forth above, the agency must also justify the institution of a PIP by proving by substantial evidence that the employee’s performance was unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Lee v. Department of Veterans Affairs , 8 2022 MSPB 11, ¶ 16. Although the record in this appeal already contains evidence suggesting that the appellant’s performance over the 7 months leading up to the PIP was indeed unacceptable, IAF, Tab 6 at 128, 142-60, 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 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 his 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-PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, the administrative judge should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). 9 ORDER For the reasons discussed above, we REMAND this case to the Northeast Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Stump_Linda_S_PH-0432-20-0223-I-1__Remand_Order.pdf	2024-04-19	LINDA S. STUMP v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0432-20-0223-I-1, April 19, 2024	PH-0432-20-0223-I-1	NP
1,729	https://www.mspb.gov/decisions/nonprecedential/Nyamekye_ChristaDC-0752-20-0388-I-2__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTA NYAMEKYE, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-20-0388-I-2 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James A. Hill , Esquire, and Michael L. Spekter , Esquire, Silver Spring, Maryland, for the appellant. Chieko M. Clarke and Michael Gridley , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed her removal for absence without leave (AWOL). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the appellant has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s due process argument, we AFFIRM the initial decision. BACKGROUND The appellant was a GS-12 Accountant for the agency’s Patent and Trademark Office. Nyamekye v. Department of Commerce , MSPB Docket No. DC-0752-20-0388-I-1, Initial Appeal File (IAF), Tab 8 at 30. On November 26, 2019, the agency proposed her removal based on 44 hours of AWOL between July 22 and August 30, 2019. Id. at 70-76. Specifically, the agency alleged that, on 18 different days, the appellant was absent from work, without authorization, for various periods of time totaling 44 hours.2 Id. at 70-71. The agency further alleged that the appellant had not requested leave for her absences, had claimed these hours as time worked, and had been paid accordingly. Id. at 70. The appellant responded to the proposed removal, and on January 15, 2020, the deciding official issued a decision sustaining the charge and removing the appellant effective January 24, 2020. Id. at 36-41, 43-68. 2 The 18 specifications of AWOL are misnumbered in the notice of proposed removal. IAF, Tab 8 at 70-71. However, there is no indication that this misnumbering caused the appellant any confusion such that she was unable to understand the precise nature of the agency’s allegations. 3 The appellant filed a Board appeal, contesting the merits of the agency’s action and raising affirmative defenses of race and sex discrimination.3 IAF, Tab 1 at 4-6; Nyamekye v. Department of Commerce , MSPB Docket No. DC-0752-20-0388-I-2, Appeal File (I-2 AF), Tab 5, Tab 14 at 8-13, Tab 17 at 5-6. After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. I-2 AF, Tab 25, Initial Decision (ID). She found that the agency proved its charge and that the appellant failed to prove her affirmative defenses. ID at 3-37. The administrative judge also found that the penalty was within the tolerable limits of reasonableness. ID at 37-42. The appellant has filed a petition for review, arguing that the agency violated her right to due process, that the administrative judge erred in analyzing her discrimination claims, and that the removal penalty is inconsistent with the penalties imposed on other employees for similar offenses. Petition for Review (PFR) File, Tab 3. The agency has filed a response. PFR File, Tab 5. ANALYSIS The agency proved its AWOL charge. To prove an absence without leave charge, an agency must show that the employee was absent from duty, and either that her absence was unauthorized or that her request for leave was properly denied. Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325 (1992). In this case, the administrative judge considered each of the 18 specifications of AWOL and found that the appellant was absent from duty during various periods of time during which she was supposed to have been at work, for a total of 44 hours as the agency alleged. ID at 15-28. Accordingly, the administrative judge sustained each of the 3 The appellant initially alleged discrimination based on age, but we find that she has abandoned that claim. IAF, Tab 1 at 6; see Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-28. The appellant’s only allegation of age discrimination was a pro forma assertion in her initial filing, she was represented by an attorney throughout these proceedings, and she did not object when age discrimination was not included as an issue in the administrative judge’s prehearing conference summary. IAF, Tab 1 at 6; I-2 AF, Tab 17. Nor has the appellant raised the issue on petition for review. 4 18 specifications and the charge as a whole. Id. The administrative judge’s findings are well-reasoned and supported by the record, and the appellant does not contest them on review. See 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross petition for review.”). The appellant has not shown that the agency denied her due process. On petition for review, the appellant argues that the agency denied her right to due process because the deciding official based his penalty determination partly on information that was not contained in the notice of proposed removal. PFR File, Tab 3 at 9-15. Specifically, in her response to the notice of proposed removal, the appellant stated that she sometimes worked more hours than she actually reported. IAF, Tab 8 at 47-49. Far from allaying his concerns about the appellant’s behavior, the deciding official believed that her failure to record work time represented further disregard for the agency’s time and attendance policies, and he considered this evidence in arriving at his decision. Hearing Transcript, Day 1 (Tr. 1) at 212-15, 235-37 (testimony of the deciding official). As a threshold matter, we acknowledge that the appellant did not raise this affirmative defense in time for it to be included as an issue in the administrative judge’s prehearing conference summary. Nevertheless, during the course of the hearing, the deciding official gave information which had not been adduced in discovery and which the appellant’s representative interpreted as evidence of a due process violation. PFR File, Tab 3 at 5-6; Hearing Transcript, Day 2 (Tr. 2) at 126 (appellant’s closing argument). The appellant’s representative raised the issue before the close of the record below, during his closing argument. Tr. 2 at 126-27 (appellant’s closing argument). This argument, however, was not addressed by the administrative judge in her initial decision. Cf. Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (stating 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 5 conclusions of law and legal reasoning, as well as the authorities on which that reasoning rests). We find that the appellant acted with due diligence in raising her due process argument under the circumstances, and we will address it on review. An agency’s failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives her of her property right in her employment constitutes an abridgement of her constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). 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, an employee must be given advance notice of any aggravating factors supporting an enhanced penalty as well as a meaningful opportunity to address whether the level of penalty to be imposed is appropriate. Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999). As an initial matter, we agree with the appellant that she was charged with AWOL and not with any other violation of the agency’s time and attendance rules. PFR File, Tab 3 at 8-10, 14. However, there is no indication in the record that the deciding official relied on the appellant’s failure to record work time as a basis to sustain the AWOL charge. Nor is there any blanket prohibition on considering uncharged misconduct for purposes of penalty, as long as the employee is on notice of the matter. Thomas v. U.S. Postal Service , 96 M.S.P.R. 179, ¶ 9 (2004). The appellant clearly expected that the deciding official would consider her failure to record work time in reaching his decision because she herself raised the issue in response to the notice of proposed removal. IAF, Tab 8 at 47-49. Therefore, contrary to the appellant’s arguments, there was no ex parte communication. PFR File, Tab 3 at 11-12. Although the appellant may not have 6 predicted that the deciding official would view the information that she provided in a negative light, due process does not require that an employee know in advance what the deciding official’s assessment of the evidence will be. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015). Nor do the principles of due process guarantee that an employee’s response will not be seen to undermine her own case. See, e.g., Talavera v. Agency for International Development , 104 M.S.P.R. 445, ¶ 10 (2007). For these reasons, we find that the appellant has not shown that the agency violated her right to due process.4 The administrative judge properly determined that the appellant did not prove her claims of race and sex discrimination. To establish a claim of race or sex discrimination, an appellant must show that the prohibited consideration was at least a motivating factor in the personnel action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22. In this case, the appellant cited various pieces of evidence in support of her claims, including evidence of the events that instigated the agency’s investigation, evidence of the agency’s allegedly more favorable treatment of male and Caucasian employees, changes in her performance rating after she was assigned a new first-level supervisor, and a chart describing the agency’s actions toward other employees who had committed AWOL offenses. I-2 AF, Tab 5 at 6-10, Tab 14 at 18-21. The administrative judge discussed all of this evidence in detail but found that none of it gave rise to an inference of discrimination. ID at 19-37. 4 When the Board determines that an agency has not violated an appellant’s due process rights, it must consider whether the agency committed harmful procedural error. Ward, 634 F.3d at 1281-82. The burden is on the appellant to prove harmful error. 5 C.F.R. § 1201.4(r). 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 conclusion different from the one it would have reached in the absence or cure of the error. 5 C.F.R. §§ 1201.4(r), 1201.56(c)(3). Here, because the appellant has not alleged that the agency committed any error in applying its procedures, we discern no basis for a finding of harmful error. 7 On petition for review, the appellant again points out that the only time in her career with the agency that she received a performance rating of less than “Commendable” was in fiscal year 2019, after she was assigned the new first-level supervisor who later launched the investigation into her AWOL. PFR File, Tab 3 at 23-24; IAF, Tab 10 at 10-21. The appellant also renews her argument that the agency’s treatment of 50 different employees charged with 100 hours of AWOL or less between January 1, 2017, and March 11, 2019, shows that the agency treated African American employees more harshly than Caucasian employees. PFR File, Tab 3 at 23. We have reevaluated the evidence that the appellant cites, but we come to the same conclusion as the administrative judge. As the administrative judge accurately observed, “[I]t is not uncommon that supervisors rate employees differently or that a new supervisor may provide increased oversight to her subordinate employees.” ID at 32. Moreover, even if the appellant’s fiscal year 2019 rating was overly critical from an objective standpoint, it would not follow that the reason for this was discrimination. See Lewin v. Department of Justice , 74 M.S.P.R. 294, 298-99 (1997). Regarding the 50 employees disciplined for 100 hours of AWOL or less, the appellant accurately points out that more than half of these individuals (26 out of 50) were African American. PFR File, Tab 3 at 23; I-2 AF, Tab 14 at 18-21. However, to the extent that the appellant is attempting to proffer unidentified individuals as comparators for purposes of her status-based discrimination claim, she has not shown that any such similarly situated comparator exists. See Ly v. Department of the Treasury , 118 M.S.P.R. 481, ¶ 10 (2012). In other words, the information in this chart is insufficient to show that any similarly situated non-African American employees committed similar AWOL offenses and were not disciplined. The administrative judge carefully analyzed the information in this chart, and we agree with her that it does not demonstrate any sort of institutional bias or pattern of treating female or African American employees 8 more harshly than others.5 ID at 30-31. For the reasons explained in the initial decision, we agree with the administrative judge that the appellant has not shown that either race or sex was a motivating factor in her removal.6 ID at 29-37. The removal penalty was reasonable. Because the agency’s only charge is sustained, the Board’s authority to review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In reviewing an agency-imposed penalty, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency; the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly exercised within tolerable limits of reasonableness. Id. at 302. The Board has identified a non-exhaustive list of factors that are normally relevant in arriving at a penalty determination. Id. at 305-06. The administrative judge found that the agency properly considered the relevant Douglas factors. ID at 38-42. She agreed with the deciding official that the appellant’s good work history and 11 years of discipline-free service were 5 To the extent that the appellant is attempting to raise a disparate impact claim, we decline to consider this argument because she has raised it for the first time on petition for review without showing that it is based on new and material evidence. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). In any event, the evidence that the appellant has offered is insufficient to establish the existence of any statistical disparity, as is required to support a prima facie case of disparate impact discrimination. See Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 991-94 (1988) (setting forth the standard for establishing a prima facie case of discrimination based on disparate impact). 6 Because we find no error with the administrative judge’s motivating factor analysis or conclusion regarding the appellant’s discrimination claims, we do not reach the question of whether the appellant’s race or sex was a but-for cause of the removal action. See Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n.2 9 mitigating factors. ID at 39-40; IAF, Tab 8 at 37. However, she found that the deciding official did not abuse his discretion in concluding that these did not outweigh the aggravating factors, particularly the appellant’s lack of rehabilitative potential and the nature and duties of her position, which included ensuring time and attendance compliance for other employees. ID at 38-42; IAF, Tab 8 at 37-38. The administrative judge acknowledged that other employees with similar amounts of AWOL were given lesser penalties, but she agreed with the deciding official that the disparity was justified because of the nature of the appellant’s duties, position, and responsibilities. ID at 40; IAF, Tab 8 at 38; I-2 AF, Tab 19 at 48. On petition for review, the appellant focuses on the issue of whether the penalty in her case was consistent with penalties previously levied against other employees for similar offenses. PFR File, Tab 3 at 15-22. The evidence on this issue consists mainly of a chart that the agency created for the deciding official’s consideration. This chart lists 12 employees who were previously disciplined for AWOL, and in the cases of 3 of those employees, improperly claimed overtime, compensatory time, and credit time as well. I-2 AF, Tab 19 at 48. The chart denotes the amount of AWOL and total amount of time abuse (AWOL plus improperly claimed time) charged to each employee, the period of time over which the infractions occurred, whether there was prior discipline involved, and the penalty meted out in each case. Id. Recognizing that the appellant’s infractions occurred over a 6-week period, the agency also calculated for each employee 6-week equivalents of their actual AWOL and other time abuse as a function of the hours charged and the time period covered versus the 6-week time period at issue in this appeal.7 Id. Out of the 12 proffered comparators, three 7 For instance, one employee was charged with 52 hours of AWOL and 66 hours of improperly claimed time over an 8-month period. I-2 AF, Tab 19 at 48. The agency determined that this equated to 10 hours of AWOL and 12 hours of improperly claimed time (for a total of 22 hours of time abuse) over a 6-week period. Id. The agency’s calculations themselves are not in the record. However, it would appear that the agency reached this result by determining that a period of 8 months contains approximately 10 were removed, two of whom had prior discipline, and the remainder received suspensions ranging from 2 to 30 days. Id. On petition for review, the appellant criticizes the utility of the chart, particularly the agency’s use of 6-week equivalents. She argues that the majority of these employees’ cases are not comparable to hers because they were AWOL well in excess of the 44 hours with which she was charged, and the agency cannot make these dissimilar cases similar by engaging in the fiction that the other employees’ offenses were somehow compressed into a 6-week period. PFR File, Tab 3 at 17-20. The appellant also argues that, although the relation between her job duties and the charged misconduct was a primary driver of the agency’s penalty assessment, the chart does not disclose the positions held by the proffered comparators, and the deciding official was unaware of whether any of those other individuals might have had time and attendance-related duties as well. Id. at 21-22. The appellant’s concern about the 6-week equivalents is well-taken. Although this appears to have been a good faith effort by the agency to expand its data set, we are skeptical that employees who were charged with as much as 6.5 times the total AWOL as the appellant are comparable in committing similar offenses, regardless of how long it took them to accrue that AWOL. Based on the data in the chart, it appears to us that the three most similarly situated employees incurred 36.75 hours of AWOL over 2.5 months, 30.5 hours of AWOL over 1.5 months, and 46 hours of AWOL over 2 months. I -2 AF, Tab 19 at 48. These employees, none of whom had prior discipline, received suspensions of 10 days, 2 days, and 5 days, respectively. Id. The removal penalty that the appellant received was significantly harsher. 240 days, or 34.29 weeks. Dividing 34.29 by 6 results in 5.71. The total of 52 hours of total AWOL, divided by 5.71, is 9.1 hours, which the agency rounded up to 10 to reach a 6-week equivalency. Dividing the 66 hours of improperly claimed time by the same 5.71 figure equates to 11.58 hours, which the agency rounded up to 12. Similar calculations can be made for the other cases. 11 Nevertheless, the consistency of the penalty with those imposed upon other employees for the same or similar offenses is simply one of a nonexhaustive list of 12 factors that are relevant for consideration in determining the appropriateness of a penalty. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18; Douglas, 5 M.S.P.R. at 305-06. Therefore, while the fact that one employee receives a more severe penalty than that imposed on a comparator who has committed the same or similar misconduct should be considered in favor of mitigating the penalty in a given case, mitigation is by no means required in all such cases. Singh, 2022 MSPB 15, ¶ 18. The proper inquiry is whether the agency knowingly treated employees differently in a way not justified by the facts, and intentionally for reasons other than the efficiency of the service. Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988). Although the deciding official may not have been aware of whether any of the proffered comparators were also responsible for ensuring time and attendance compliance, he did not render his decision knowing that such similarities existed, thereby knowingly treating the appellant more harshly than other similarly situated individuals. Cf. Singh, 2022 MSPB 15, ¶ 13 (stating that the universe of potential comparators “should be limited to those employees whose misconduct and/or other circumstances closely resemble those of the appellant”). In fact, information provided to the appellant during discovery shows that none of the three individuals who committed similar AWOL infractions were Accountants; one of them was a Paralegal and the other two were Patent Examiners. I-2 AF, Tab 14 at 19-20, Tab 19 at 48. There is no reason to suppose that the duties of any of these three individuals involved administering the agency’s time and attendance system. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibility, remains the most important factor in assessing the reasonableness of a penalty. Singh, 2022 MSPB 15, ¶ 18. Therefore, notwithstanding the agency’s decision to levy a harsher penalty in the 12 appellant’s case, we agree with the administrative judge that its decision was within the tolerable limits of reasonableness, especially in light of the appellant’s time and attendance-related duties. ID at 42. NOTICE OF APPEAL RIGHTS8 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 13 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 14 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 15 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 16 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Nyamekye_ChristaDC-0752-20-0388-I-2__Final_Order.pdf	2024-04-19	CHRISTA NYAMEKYE v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-20-0388-I-2, April 19, 2024	DC-0752-20-0388-I-2	NP
1,730	https://www.mspb.gov/decisions/nonprecedential/Louck_JeffSF-0752-21-0226-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JEFF LOUCK, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER SF-0752-21-0226-I-1 DATE: April 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeff Louck , San Francisco, California, pro se. John Montgomery , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed as untimely his involuntary resignation appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and DISMISS the appeal for lack of jurisdiction. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant held the position of Lead Management Support Specialist with the Food and Nutrition Service. Initial Appeal File (IAF), Tab 1 at 1, Tab 14 at 28-29. He filed a formal equal employment opportunity (EEO) complaint alleging discrimination and harassment on the basis of race, sex, and political affiliation on July 6, 2018. IAF, Tab 11 at 11-23, Tab 14 at 24. The appellant alleged, in part, that an agency employee had defaced a portrait of President Trump and that management had not held the individual appropriately accountable, demonstrating discrimination towards Caucasian males. IAF, Tab 11 at 11. By letter dated July 10, 2018, the appellant informed agency management that he would be “resigning” and that his last day would be July 24, 2018. Id. at 28. The agency processed his resignation effective August 4, 2018. Id. at 29. The appellant amended his EEO complaint on November 14, 2018. Id. at 20. On February 28, 2021, the appellant filed the present appeal alleging that he had been subjected to an involuntary resignation. IAF, Tab 1 at 3. He stated that he had filed a report with the Office of Inspector General (OIG) about “an employee who committed a hate speech racist crime and Hatch Act2 crimes,” but that OIG had not appropriately punished the individual. Id. at 5. The appellant stated that the agency “retaliated against [him] by telling [him] to quit or be fired,” and that “they were not stupid enough to put their ultimatum in writing.” Id. He maintained that, before he was “forced to quit” in July 2018, he had received very good performance reviews and had received a cash award only 2 months prior to making his report to the OIG. Id. The appellant submitted a final agency decision (FAD) dated January 7, 2021, stating that the Equal Employment Opportunity Commission (EEOC) had issued a summary judgment decision in favor of the agency. Id. at 7-12. 2 An Act to Prevent Pernicious Political Activities, Pub. L. No. 76-252, 53 Stat. 1147 (1939) (codified as amended at 5 U.S.C. chapter 73, subchapter III).2 In an acknowledgment order, the administrative judge then assigned to the appeal issued an order on jurisdiction, which provided the appellant proper notice regarding involuntary resignations and explained that he would be entitled to a hearing if he made a nonfrivolous allegation that his appeal was within the Board’s jurisdiction. IAF, Tab 2 at 2-4. The administrative judge also issued an order on timeliness, notifying the appellant that his appeal appeared to be untimely filed by 913 days and ordering him to submit evidence and argument showing that the appeal was timely filed or that good cause existed for the delay. Id. at 4-7. The appellant argued that the administrative judge should not be assigned to his case, given his prior telephonic contact with her in February 2019. IAF, Tab 5 at 4. At that time, the administrative judge served as Interim EEO Director for the Board and the appellant had contacted her regarding his allegations against the agency, “to seek information on two crimes committed by a federal employee.” IAF, Tab 5 at 5, Tab 6 at 1. He submitted two emails that he had sent to the Board at that time, complaining about his interaction with the administrative judge and her purported refusal to assist him. IAF, Tab 5 at 5, 7. The appellant also submitted a February 2019 email that he received from the Board instructing him of the Board’s limited jurisdiction and how to file an appeal. Id. at 6. The Board also informed him that the Office of Special Counsel (OSC), and not the Board, has the authority to investigate allegations of prohibited personnel practices and violations of the Hatch Act. Id. at 6. The chief administrative judge issued a notice informing the parties that the appeal would be reassigned to another administrative judge because of the prior telephonic contact about matters related to the appeal. IAF, Tab 6 at 1-2. The appellant filed several pleadings, which largely concerned the underlying allegations in his OIG and EEO complaints and his dissatisfaction with the handling of his case by the EEOC. IAF, Tab 10 at 4-8, Tab 11 at 4-5, Tab 15 at 4-5, Tab 16 at 4-5, Tab 20 at 4. He also submitted various documents3 related to his EEO complaint. IAF, Tab 11 at 6-23, Tab 15 at 6-8. Regarding the issue of timeliness, the appellant argued that he had raised his involuntary resignation claim and “tried to file a complaint” with the Board when he spoke to the administrative judge in February 2019. IAF, Tab 5 at 4, Tab 11 at 4. He asserted that the administrative judge with whom he spoke had “blocked” him from filing a complaint during their telephone call. IAF, Tab 10 at 4, Tab 11 at 4. Finally, regarding the issue of jurisdiction, the appellant asserted that his involuntary resignation claim fell into the categories of intolerable working conditions and that the agency threatened a removal that could not be substantiated. IAF, Tab 5 at 4. He claimed that he had suffered discrimination and a toxic work environment for over 5 years. IAF, Tab 10 at 4. The appellant challenged the EEOC decision finding that he had not shown discrimination or a hostile work environment, when the OIG found that his allegations about the defacing of President Trump’s portrait were correct. IAF, Tab 10 at 4, Tab 11 at 4-5, Tab 15 at 4, Tab 16 at 4-5, Tab 20 at 4. The chief administrative judge issued an order reassigning the appeal to another administrative judge. IAF, Tab 19 at 1. The new administrative judge issued a notice of close of record, noting that the parties had sufficient time to make submissions on the timeliness and jurisdiction issues. IAF, Tab 21 at 1. Without holding the requested hearing, the administrative judge dismissed the appeal as untimely filed. IAF, Tab 22, Initial Decision (ID) at 1, 9. He found that the appellant did not establish that he timely filed his appeal, which was not rendered timely by the agency’s issuance of the FAD because the involuntary resignation claim was not an accepted issue in the appellant’s EEO complaint. ID at 3-6. The administrative judge found that the appellant had not shown good cause for his untimely filing and that his contact with the Board in February 2019, two years before he filed his appeal, did not demonstrate that he exercised due diligence or ordinary prudence in pursuing his claim. ID at 7-9. Because he4 dismissed the appeal on the grounds of timeliness, the administrative judge did not reach the issue of jurisdiction. ID at 2 n. 2. The appellant has filed a lengthy petition for review, challenging the administrative judge’s findings on timeliness and repeating his complaints against the Board, his employing agency, and the EEOC’s treatment of his complaint. Petition for Review (PFR) File, Tab 1 at 4-10. He also submits email communications between himself and various agency personnel regarding the underlying allegations in his OIG and EEO complaints. Id. at 11-21. The agency has filed a response, arguing that the petition for review presents no basis for overturning the initial decision. PFR File, Tab 5 at 4-5. The Office of the Clerk of the Board issued a letter to the appellant, informing him that his petition for review contained multiple violations of the Board’s Policy on Prohibited Conduct, and outlined “unacceptable conduct” such as profanity and disparaging language based on race, sex, national origin, and other protected classes. PFR File, Tab 3 at 1. The letter constituted a warning to the appellant to refrain from engaging in this behavior or suffer potential sanctions. Id. at 2. The appellant filed a response to the Board’s “despicable” letter, arguing that the Board had “harassed” him and denying that he had used disparaging language. PFR File, Tab 4 at 4-6. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred by deciding the timeliness issue without first determining whether the Board has jurisdiction over the appeal. Although the existence of Board jurisdiction is a threshold issue, in an appropriate case, an administrative judge may dismiss an appeal as untimely filed if the record on timeliness is sufficiently developed and shows no good cause for the untimely filing. Hanna v. U.S. Postal Service , 101 M.S.P.R. 461, ¶ 6 (2006). Such an approach is not appropriate, however, if the jurisdictional and timeliness issues are inextricably intertwined, such that the resolution of the timeliness issue depends on whether the appellant was subjected to an appealable action. Id. The5 issues of timeliness and jurisdiction are generally considered to be inextricably intertwined in an involuntary resignation appeal because a failure to inform an employee of his Board appeal rights may excuse an untimely filed appeal, and whether the agency was obligated to inform the employee of such appeal rights depends on whether he was affected by an appealable action. Id. Here, the administrative judge issued orders on timeliness and jurisdiction in the acknowledgment order. IAF, Tab 2 at 2-7. However, the administrative judge did not reach the issue of jurisdiction concerning the appellant’s involuntary resignation claim in the initial decision. ID at 2 n.2. Because the issues of timeliness and jurisdiction are inextricably intertwined in this appeal, the administrative judge should not have dismissed the appeal on timeliness grounds without first addressing jurisdiction. Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 8, aff’d per curiam , 469 F. App’x 852 (Fed. Cir. 2011). We need not remand this appeal, however, because the appellant received proper jurisdictional notice as to the involuntary resignation claim and he availed himself of the opportunity to present argument on the jurisdictional issue in numerous pleadings. IAF, Tab 2 at 2-4, Tab 5 at 4, IAF, Tab 10 at 4, Tab 11 at 4-5, Tab 15 at 4, Tab 16 at 4-5. The appellant failed to nonfrivolously allege that his resignation was involuntary. On review, the appellant repeats his assertion that a management official told him to “quit or be fired” and states that he was subject to disciplinary action. PFR File, Tab 1 at 5, 10; IAF, Tab 1 at 5, Tab 8 at 4, Tab 10 at 4. He also repeats his claims that his working conditions were so intolerable due to discrimination as a “legal U.S. citizen Caucasian male” and politically motivated violations of the Hatch Act that he had no choice but to resign. PFR File, Tab 1 at 4-5; IAF, Tab 10 at 5-7, Tab 11 at 4-5. Contrary to the appellant’s assertion on review that it “isn’t [his] responsibility to address” the issue of jurisdiction, an appellant has the burden of proving Board jurisdiction over his appeal. PFR File, Tab 1 at 6; see 5 C.F.R. § 1201.56(b)(2)(i)(A). For the following reasons, we find that the6 appellant has not presented nonfrivolous allegations of Board jurisdiction and he is not entitled to a jurisdictional hearing. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). Resignations are presumed to be voluntary, but the Board has jurisdiction over an appeal filed by an employee who has resigned if his resignation was involuntary and tantamount to a forced removal. Parrott v. Merit Systems Protection Board , 519 F.3d 1328, 1332 (Fed. Cir. 2008) (internal citations omitted). To establish Board jurisdiction over a constructive adverse action, such as an involuntary resignation, an appellant must show that: (1) he lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived him of that choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013). The touchstone of the voluntariness analysis is whether, considering the totality of the circumstances, factors operated on the employee’s decision-making process that deprived him of freedom of choice. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Where, as here, an appellant raises allegations of discrimination and reprisal in connection with an involuntariness claim, evidence of such discrimination or reprisal may be considered only insofar as it relates to the issue of involuntariness. Markon v. Department of State , 71 M.S.P.R. 574, 578-80 (1996). Thus, in an involuntary resignation appeal, evidence of discrimination or reprisal goes to the ultimate question of coercion, i.e., whether under all of the circumstances, working conditions were made so difficult by the agency that a reasonable person in the employee’s position would have felt compelled to resign. Id. Regarding the appellant’s repeated claims that an agency manager told him to “quit or be fired,” if an appellant shows that an agency knew that it would not prevail on a proposed adverse action, the proposed action is coercive and the resulting resignation is involuntary. IAF, Tab 1 at 5, Tab 15 at 7; PFR File, Tab 1 at 5; see Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392, ¶ 12 (2008). Here, however, the appellant has not alleged that the agency proposed his7 removal or any specific disciplinary action at the time of his resignation, and an employee’s anticipation of an adverse action does not constitute coercion or duress on the part of the agency. See Holman v. Department of the Treasury , 9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table). The appellant’s allegations about the underlying claims in and handling of his EEO complaint do not constitute a nonfrivolous allegation that he was deprived of freedom of choice as to his resignation. The bulk of his arguments concerning purported intolerable working conditions consist of his frustration with the outcome of his EEO complaint finding that he had not shown discrimination or a hostile work environment. IAF, Tab 10 at 4, Tab 11 at 4-5, Tab 15 at 4, Tab 16 at 4-5, Tab 20 at 4. Although he maintains that the “conduct of hate and discrimination went on the whole time he worked at the agency,” he provides no specifics to support his claim that he experienced a hostile work environment for over 5 years prior to his resignation. IAF, Tab 10 at 4, Tab 11 at 4. The appellant alleges that he was retaliated against for filing an OIG complaint against an agency supervisor for reporting the defacing of President Trump’s photograph in February 2018, approximately 5 months prior to his resignation. IAF, Tab 10 at 4. He acknowledges that OIG conducted an investigation into the action, but maintains that the agency did not appropriately discipline the individual and argues that there was “no way [he] could continue to work in that environment.” IAF, Tab 1 at 5, Tab 10 at 5. In support of the alleged intolerable conditions, he alleges that the individual who defaced the portrait and another management official chose to sit right in front of him at an ethics training, even though they could have sat anywhere, in order to send a bullying and intimidation message. IAF, Tab 15 at 4. In finding that the appellant has not nonfrivolously alleged that his resignation was involuntary, we do not make a determination about the underlying claims of discrimination or reprisal, but rather find that these allegations do not establish that a reasonable8 person would have found these conditions so oppressive that he had no choice but to resign. See Markon, 71 M.S.P.R. at 578-80. The appellant submits evidence for the first time on review, namely February 2018 email correspondence regarding his informal EEO complaint and OIG report concerning the vandalizing of President Trump’s portrait. PFR File, Tab 1 at 17-21. He also submits email correspondence with OIG personnel from January 2019, several months after his resignation, regarding his dissatisfaction with OIG’s handling of his complaint. Id. at 11-21. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and material evidence). The appellant offers no explanation why he did not submit these emails, sent at least 2 years prior to filing his initial appeal, into the record, particularly since he included portions of the communications in his responses to the jurisdiction and timeliness orders. IAF, Tab 11 at 6-10. Even if we were to consider these documents, they do not support a finding of jurisdiction. The appellant seemingly submits these documents in support of his argument that his appeal was timely filed. Id. at 7-8. To the extent that the appellant argues that these documents support his contention that the EEO and OIG complaints were not appropriately handled and contributed to his involuntary resignation, such arguments are unpersuasive. The record shows that the appellant submitted his letter of resignation only 4 days after filing his formal EEO complaint. IAF, Tab 14 at 24, 28. Contrary to the appellant’s claims that the agency took no action on his EEO complaint, by his own admission the agency processed his formal EEO complaint and amendments thereto, which was eventually adjudicated by an EEOC9 administrative judge. IAF, Tab 11 at 4, Tab 10 at 8, Tab 14 at 20, 24, 48. Moreover, he states that he has filed an appeal of the FAD and thus is still pursuing his EEO complaint. PFR File, Tab 1 at 7; IAF, Tab 15 at 5. He has not explained why he could not have pursued his EEO complaint, to stand and fight the alleged discrimination, while remaining at the agency. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17 (2009). Although the appellant repeats his claims that he suffered whistleblower reprisal for making a complaint to the agency’s OIG, he stated in his initial appeal form that he had not filed a whistleblowing complaint with OSC. PFR File, Tab 1 at 4; IAF, Tab 1 at 4-5. He acknowledges on review that the Board’s February 2019 email instructed him that it did not have investigative authority over prohibited personnel practices and informed him that OSC was the appropriate agency for such a complaint, but he maintains that the Board should have addressed the prohibited personnel practice. PFR File, Tab 1 at 9; IAF, Tab 5 at 6. To the extent that the appellant contends that he had to resign because it would have been fruitless to pursue a whistleblowing complaint with OSC regarding the alleged reprisal, the fact that other avenues of redress may have involved protracted procedures or may have been unsuccessful does not establish that his choice to resign was involuntary. See Searcy, 114 M.S.P.R. 281, ¶ 11. Therefore, we find that the appellant has not presented nonfrivolous allegations of Board jurisdiction over his involuntary resignation claim and he is not entitled to a jurisdictional hearing. See Ferdon, 60 M.S.P.R. at 329. The appellant’s remaining arguments are unavailing. As noted above, the case was reassigned to a third administrative judge during the pendency of the appeal, and the brief order provided the parties no reason for the reassignment. IAF, Tab 19. The appellant filed a response, inquiring as to the reason for the reassignment and again complaining about the EEOC process. IAF, Tab 20 at 4. On review, the appellant argues that there was “no explanation for why [the] case was reassigned to a friend” of the agency10 counsel. PFR File, Tab 1 at 4. He asserts that “there is a very ‘special’ relationship between [agency counsel] and his friend at the MSPB.” PFR File, Tab 6 at 5. To the extent that the appellant argues that the administrative judge who issued the initial decision had a conflict of interest or was biased towards the agency, he offers no specific facts or evidence to support his conclusory statements. PFR File, Tab 1 at 4, Tab 6 at 5. The appellant has provided no basis for overcoming the presumption of honesty and integrity that accompanies administrative adjudicators. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). Finally, the appellant asserts that he is “entitled to an investigation into serious criminal conduct and illegal retaliation.” PFR File, Tab 1 at 4. He demands “an investigation and accountability” into his complaints against his employing agency and violations of the Hatch Act. PFR File, Tab 6 at 4-5. The appellant has maintained throughout his appeal that the EEOC failed to conduct an investigation into his discrimination complaint. IAF, Tab 10 at 4, Tab 16 at 4. To the extent that the appellant requests that the Board conduct an investigation that should have been performed by the EEOC or another government agency, the Board lacks jurisdiction to independently investigate such claims. PFR File, Tab 1 at 4, Tab 6 at 4-5; see Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation). Regarding the purported violations of the Hatch Act, OSC has long possessed the sole authority to investigate and prosecute allegations of prohibited political activity under the statute. See Sims v. Government of the District of Columbia , 7 M.S.P.R. 45, 48 (1981). 11 NOTICE OF APPEAL RIGHTS3 This Final Order constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.12 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on13 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or14 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 15 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	Louck_JeffSF-0752-21-0226-I-1__Final_Order.pdf	2024-04-19	JEFF LOUCK v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-21-0226-I-1, April 19, 2024	SF-0752-21-0226-I-1	NP
1,731	https://www.mspb.gov/decisions/nonprecedential/LaVoy_Donald_J_DC-0752-21-0352-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DONALD J. LAVOY, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER DC-0752-21-0352-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 John J. Rigby , Esquire, Arlington, Virginia, for the appellant. Stephanie Ramjohn Moore , Esquire, Washington, D.C., for the agency. Carlos Ricardo Ramirez Perez , Esquire, Albuquerque, New Mexico, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his involuntary retirement appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND Effective January 30, 2000, the appellant was appointed to Project Manager of Consolidation Activities with the U.S. Department of Housing and Urban Development (HUD), a position within the Senior Executive Service (SES). Initial Appeal File (IAF), Tab 7 at 14. The appellant thereafter held a series of different SES positions with HUD until September 15, 2019, when he was appointed to the position of Deputy Undersecretary for Rural Development (DURD) at the U.S. Department of Agriculture (USDA). IAF, Tab 5 at 13, Tab 7 at 5, 15, 21. The appellant retired from Federal service on March 28, 2020, approximately 6 months after accepting the position at the USDA. IAF, Tab 9 at 51.2 On April 18, 2021, the appellant filed an appeal with the Board alleging that his retirement had been involuntary.2 IAF, Tab 1 at 4, 6. He requested a hearing on the matter. Id. at 2. Shortly thereafter, the agency requested that the administrative judge issue a show cause order, contending that the appellant’s appointment to his position at the USDA had been a “noncareer appointment” and that “a noncareer appointee may be removed at any time.” IAF, Tab 5 at 5-6. The agency seemingly argued in the alternative that, even assuming that the Board had jurisdiction over an adverse action taken against the appellant, the appellant had failed to make a nonfrivolous allegation that his retirement had been involuntary. Id. at 6-7. The administrative judge thereafter issued a show cause order directing the appellant to file evidence and argument regarding jurisdiction. IAF, Tab 6 at 1-4. In response, the appellant averred that he had received a career appointment in the SES and had served in a series of SES career reserved positions before transferring to the USDA. IAF, Tab 7 at 5. He contended that, although the DURD position at the USDA “was not a career-reserved position,” he nonetheless “did not lose his career status while serving in the position.” Id. (punctuation as in original). With his response, the appellant provided paperwork indicating that he had received a “noncareer” appointment to the DURD position. Id. at 19. He contended that, although the paperwork regarding his appointment as DURD did not reflect career status in the SES, the paperwork was not dispositive. Id. at 8. He more broadly argued that “once someone obtains ‘career appointee’ status in the SES, he or she does not lose that status by serving in a position which could be occupied by a non-career appointee.” Id. at 7 2 Prior to filing his Board appeal, on June 22, 2020, the appellant filed a formal equal employment opportunity compliant alleging that he had been discriminated against on the basis of age, sex, and disability when he was purportedly compelled to retire. IAF, Tab 8 at 44-46. After the USDA failed to issue a final agency decision within 120 days from the date on which he filed his formal complaint, the appellant appealed to the Board. Id. at 41-43. 3 (punctuation as in original). The appellant also reasserted that his retirement had been involuntary. Id. at 9-10. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the matter for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID) at 1, 12. The administrative judge concluded that the appellant had failed to make a nonfrivolous allegation that he was an “employee” under 5 U.S.C. § 7511(a) and 5 C.F.R. § 752.601 and, therefore, lacked Board appeal rights. ID at 10. In so concluding, she reasoned that it was undisputed that the appellant had been appointed to an excepted service, noncareer SES position pursuant to 5 U.S.C. § 3394(a)3 and, therefore, that he could have been removed at any time. ID at 10-11. She also reasoned that the appellant’s appointment letter had clearly communicated to him that he was being offered a noncareer SES position without any appeal rights. ID at 11-12. The administrative judge explained that, given her findings regarding the nature of the appellant’s appointment to his position at the USDA, she need not address whether he had made a nonfrivolous allegation that his retirement was involuntary. ID at 12 n.2. She also dismissed as moot an outstanding motion to compel discovery filed by the appellant. Id. The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply to the agency’s response. Petition for Review (PFR) File, Tabs 1, 3-4. In his petition and reply, the appellant (1) contends that he could not have lost his career status in the SES by switching to another SES position without a break in service and (2) avers that the administrative judge failed to consider his motion to compel discovery. PFR File, Tab 1 at 4-11, Tab 4 at 4-9. 3 The initial decision mistakenly indicated that the appellant had been appointed pursuant to 5 U.S.C. § 3394(A). ID at 10. This misstatement did not prejudice the appellant’s substantive rights and therefore provides no basis for reversal of the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 ) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversing an initial decision). 4 DISCUSSION OF ARGUMENTS ON REVIEW The SES consists of career reserved positions, which can be held only by a career appointee, and general positions, which can be held by either a career appointee or a noncareer appointee.4 5 U.S.C. § 3132(a)(8)-(9); Acting Special Counsel v. U.S. Customs Service , 31 M.S.P.R. 342, 345 (1986); 5 C.F.R. § 214.401. A career appointee can appeal suspensions for more than 14 days and removals to the Board if the appointee has completed his SES probationary period, was not required to serve an SES probationary period, or was covered under 5 U.S.C. § 7511 immediately prior to his appointment to the SES.5 See 5 U.S.C. §§ 7541(1), 7542, 7543(d); 5 C.F.R. § 752.601(a), (c). A noncareer appointee, by contrast, does not acquire status with the SES and may be removed from his SES position at any time. 5 C.F.R. § 317.605(a)-(b). We discern no basis to disturb the administrative judge’s conclusion that the appellant failed to make a nonfrivolous allegation of Board jurisdiction. The appellant argues that, because he was an SES career appointee at HUD, he remained a career appointee throughout his tenure at the USDA. PFR File, Tab 1 at 7-9. In so arguing, he emphasizes that he changed SES positions without a break in service. Id. at 4-5, 9. To support his argument, the appellant directs the Board’s attention to 5 U.S.C. § 3132(a)(4),6 which defines “career appointee” 4 A “career appointee” means an individual in an SES position whose appointment to the position or previous appointment to another SES position was based on approval by the Office of Personnel Management of the executive qualifications of such individual, whereas a “noncareer appointee” means an individual in an SES position who is not a career appointee, a limited term appointee, or a limited emergency appointee. 5 U.S.C. § 3132(a)(4), (7); 5 C.F.R. § 214.201. 5 Agencies, however, may take an adverse action against a career SES appointee only “for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.” 5 U.S.C. § 7543(a); see McNair v. Equal Employment Opportunity Commission , 116 M.S.P.R. 315, ¶ 6 (2011). 6 The appellant also directs the Board’s attention to 5 C.F.R. § 214.201; however, this regulatory provision merely adopts the statutory definition of “career appointee.” PFR File, Tab 4 at 6.5 as an individual in the SES whose “appointment to the position or previous appointment to another [SES] position was based on approval by the Office of Personnel Management [(OPM)] of the executive qualifications of such individual.” PFR File, Tab 1 at 7, Tab 4 at 5-6 (emphasis added). The appellant’s apparent interpretation of the statute, i.e., that a career appointment in the SES is immutable as long as the employee remains in the SES without a break in service, stands in contrast to OPM’s regulations regarding SES appointments. To this end, 5 C.F.R. § 317.904, which is entitled “Change in type of SES appointment,” provides as follows: “[a]n agency may not require a career SES appointee to accept a noncareer or limited SES appointment as a condition of appointment to another SES position.” The provision also provides that, should a career appointee choose to accept a noncareer appointment, the voluntary nature of the action must be documented. 5 C.F.R. § 317.904. Thus, OPM contemplated the possibility that a career SES appointee might voluntarily accept a noncareer appointment, which would amount to a “[c]hange in [the] type of [his] SES appointment.” See id. We therefore find unavailing the appellant’s contention that 5 U.S.C. § 3132(a)(4) precludes the conversion of a career appointment to a noncareer appointment when there is no break in service.7 See Johnston v. Office of Personnel Management , 70 M.S.P.R. 109, 117 (explaining that the Board generally defers to OPM’s interpretation of a statute that it is charged with implementing if OPM’s interpretation is reasonable), aff’d, 99 F.3d 1160 (Fed. Cir 1996) (Table). The appellant also argues that the Board’s decision in Acting Special Counsel supports his position that the Board has jurisdiction over his appeal. PFR File, Tab 1 at 6-7, Tab 4 at 5-7. To this end, he avers that the Board stated in Acting Special Counsel that, “once someone obtains ‘career appointee’ status 7 The “previous appointment” language in 5 U.S.C. § 3132(a)(4) would have applied to the appellant throughout the course of his tenure at HUD, during which time he accepted a series of reassignments within the SES. PFR File, Tab 1 at 5; IAF, Tab 7 at 5, 15, 21; see 5 C.F.R. § 317.901.6 in the SES, he or she does not lose that status by serving in a position which could be occupied by a non-career appointee.”8 PFR File, Tab 1 at 7, Tab 4 at 6 (punctuation as in original). We agree with this statement; indeed, as discussed above, general positions in the SES can be held by either a career appointee or a noncareer appointee. 5 U.S.C. § 3132(a)(9). The statement, however, is inapposite here. The administrative judge did not conclude merely that the appellant had served in a position that could have been occupied by either a career appointee or a noncareer appointee; rather, she concluded that it was undisputed that the appellant had received a noncareer appointment to his position at the USDA pursuant to 5 U.S.C. § 3394(a).9 ID at 10. The appellant does not discernably challenge this finding on review. Accordingly, we discern no basis to disturb the administrative judge’s conclusion that the appellant failed to make a nonfrivolous allegation of Board jurisdiction.10 8 In Acting Special Counsel , a whistleblower retaliation case, the Board considered whether the appellant, an SES career appointee who was also a reemployed annuitant, occupied a position that constituted a “covered position” under 5 U.S.C. § 2302(a)(2) (B). 31 M.S.P.R. at 344-46. In concluding that he did, the Board explained that “[w]hether an employee has tenure rights is not determinative of whether an employee is in a covered position under 5 U.S.C. § 2302(a)(2)(B).” Id. at 346. In other words, the Board explicitly indicated that it was not rendering a determination regarding the employee’s chapter 75 appeal rights insofar as such a determination was subject to a different legal standard. See id. Thus, to the extent the appellant contends that Acting Special Counsel is otherwise relevant to his appeal, PFR File, Tab 4 at 5, his contention is unavailing. 9 In finding that the appellant received a noncareer appointment to the USDA, the administrative judge referenced documentary evidence submitted by the agency, to include the appellant’s appointment letter and Standard Form 50. ID at 11-12; IAF, Tab 9 at 52-55. We are mindful that an administrative judge may not deny the appellant the right to a hearing by crediting the agency’s interpretation of the evidence nor may she weigh evidence to resolve the parties’ conflicting assertions. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994 ). Here, however, the appellant did not challenge the veracity of the agency’s evidence; indeed, the appellant himself provided a document indicating that his appointment to the USDA had been “noncareer” in nature. IAF, Tab 7 at 19. Instead, he ostensibly alleged that the paperwork was “not determinative” because he could not have lawfully relinquished his career SES status by virtue of accepting the position at the USDA. Id. at 5-8. 7 The appellant’s assertion regarding his motion to compel does not warrant a different outcome. The appellant asserts that he sought to compel “discovery from the USDA to obtain emails that would confirm” that USDA human resources personnel erroneously informed him that “he would not lose his career SES status” by accepting the DURD position with the agency; however, the administrative judge “failed to consider” his motion.11 PFR File, Tab 1 at 9. We find this assertion unavailing. When an appeal is dismissed for lack of jurisdiction, there is no prejudice to an appellant’s substantive rights based on the absence of discovery that did not seek information that would establish the Board’s jurisdiction. See Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 13 (2006). Here, the appellant contends that he sought information, i.e., emails that would have supported his allegation that agency personnel erroneously assured him that he would not lose his career status by accepting the appointment to the DURD position. PFR File, Tab 1 at 9. Again, however, the appellant does not discernably challenge the administrative judge’s jurisdictionally dispositive conclusion that he received a noncareer appointment to the position pursuant to 5 U.S.C. § 3394(a); rather, he asserts that agency personnel provided him with erroneous advice regarding the implications of his appointment. ID at 10. Even assuming that they did so, a different outcome would not be warranted. See Williams v. Merit Systems Protection Board , 892 F.3d 1156, 1163 (Fed. Cir. 2018) (explaining that whether an employee’s position carries statutorily created appeal rights, and not the circumstances surrounding the employee’s appointment, is jurisdictionally dispositive); see also Carrow v. Merit Systems Protection Board , 626 F.3d 1348, 1352-53 (Fed. Cir. 2010) (concluding that the agency’s failure to inform the 10 Because we so find, we need not consider whether the appellant made a nonfrivolous allegation that his retirement was involuntary. 11 As discussed above, the administrative judge considered the appellant’s motion; however, she dismissed it as moot. ID at 12 n.2. 8 appellant that his appointment would result in the loss of Board appeal rights did not confer jurisdiction on the Board). Thus, we find the appellant’s contentions regarding his motion to compel unavailing. Accordingly, 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). 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.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 of10 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . 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.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. 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. 12 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	LaVoy_Donald_J_DC-0752-21-0352-I-1__Final_Order.pdf	2024-04-18	DONALD J. LAVOY v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-21-0352-I-1, April 18, 2024	DC-0752-21-0352-I-1	NP
1,732	https://www.mspb.gov/decisions/nonprecedential/Harris_Austin_R_DA-315H-23-0196-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AUSTIN R. HARRIS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DA-315H-23-0196-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Austin R. Harris , Moore, Oklahoma, pro se. Katherine Yourth , Richmond, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER ¶1The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the petition for review as settled. ¶2After the filing of the petition for review, the parties submitted a copy of a settlement agreement, signed and dated by the appellant on June 16, 2023, and by the agency on June 15, 2023. Petition for Review (PFR) File, Tab 3 at 4-7. 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). document provides, among other things, for the withdrawal of the petition for review. Id. at 4. ¶3Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ). ¶4Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 3 at 7. Accordingly, we find that dismissing the petition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. ¶5This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). NOTICE TO THE PARTIES OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182(a).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	Harris_Austin_R_DA-315H-23-0196-I-1__Final_Order.pdf	2024-04-18	AUSTIN R. HARRIS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-315H-23-0196-I-1, April 18, 2024	DA-315H-23-0196-I-1	NP
1,733	https://www.mspb.gov/decisions/nonprecedential/Stewart_Tyler_J_DC-1221-20-0666-W-3__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TYLER JAMES STEWART, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER DC-1221-20-0666-W-3 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tyler James Stewart , Derwood, Maryland, pro se. Sariana Garcia-Ocasio , New York, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Under 5 U.S.C. § 1221(a), the right to file an IRA appeal is limited to employees, former employees, and applicants for employment in the civil service. See, e.g., Glover v. Department of the Army , 94 M.S.P.R. 534, ¶ 9 (2003) (finding that a widow or widower of a deceased Federal employee may not file an IRA appeal after the Federal employee’s death). To qualify as an employee or former employee for purposes of 5 U.S.C. § 1221(a), an individual must meet (or have met) the definition of an employee under 5 U.S.C. § 2105(a), i.e., “an officer and individual who is appointed in the civil service” by certain individuals specified by statute. The civil service in turn comprises “all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services.” See 5 U.S.C. § 2101(1). As the administrative judge found below, the appellant has not provided evidence that he was appointed to a civil service position with the agency, such that he could be considered an employee, former employee, or applicant for employment with standing to file an IRA appeal. The record of the appellant’s traineeship does not bear the indicia of such an appointment, such as evidence of an oath of office, a Standard Form 50 or similar formal paperwork, or salary and benefits provided through the civil service system. See Horner v. Acosta ,2 803 F.2d 687, 693-94 (Fed. Cir. 1986) (identifying elements indicative of an appointment under 5 U.S.C. § 2105). To the contrary, the appellant’s correspondence with the agency, which he resubmits on review, indicates that he received a stipend rather than a salary and was responsible for obtaining private health insurance. We have considered the appellant’s argument that he did not receive notice of his burden to establish that he was an employee with standing to file an IRA appeal. While the administrative judge did not specifically address the issue of standing in his jurisdictional order, the Board has held that an administrative judge’s failure to provide notice of jurisdictional requirements is not prejudicial if the agency’s motion to dismiss places the appellant on notice of what he has to allege to establish jurisdiction. Yost v. Department of Health and Human Services, 85 M.S.P.R. 273, 277 (2000) aff’d, 4 F. App’x 900 (Fed. Cir. 2001). Here, we find that the appellant received adequate notice of the standing issue through the agency’s motion to dismiss. Stewart v. Department of Health and Human Services , MSPB Docket No. DC-1221-20-0666-W-2, Appeal File, Tab 6. Finally, we find no merit to the appellant’s assertion that he is entitled to a hearing in order to reintroduce evidence and argument concerning his standing to file an IRA appeal. See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that in an IRA appeal, the appellant is entitled to a hearing only after jurisdiction is established, and that hearing is on the merits). 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.3 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of6 competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Stewart_Tyler_J_DC-1221-20-0666-W-3__Final_Order.pdf	2024-04-18	TYLER JAMES STEWART v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-1221-20-0666-W-3, April 18, 2024	DC-1221-20-0666-W-3	NP
1,734	https://www.mspb.gov/decisions/nonprecedential/Garrison_MichaelDC-0752-21-0462-I-2__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL GARRISON, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-0752-21-0462-I-2 DATE: April 18, 2024 THIS ORDER IS NONPRECEDENTIAL1 Cameron Bonney Evans , Esquire, and Neil C. Bonney . Esquire, Virginia Beach, Virginia, for the appellant. Edith L. Moore McGee and Lorna J. Jerome , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly sustained both specifications of the charge of improper conduct. In order to prove a charge of improper conduct, the agency must demonstrate by preponderant evidence that (1) the appellant engaged in the conduct described in the agency’s specification and (2) the conduct constituted misbehavior under the circumstances. See Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). Under the first specification of improper conduct, the agency alleged that on February 3, 2021, while on duty, the appellant drove a government-issued 5-ton vehicle towards two of his coworkers at the facility and stopped abruptly within a short distance of them. Garrison v. Department of Homeland Security , MSPB Docket No. DC-0752-21-0462-I-1, Initial Appeal File (IAF), Tab 4 at 42. Based on her review of witness testimony and a video recording of the incident, the administrative judge found that there was insufficient evidence that the appellant intended to scare or intimidate the coworkers by approaching them closely with his truck. Garrison v. Department of Homeland Security , MSPB Docket No. DC-0752-21-0462-I-2, Appeal File (I-2 AF), Tab 18, Initial Decision (ID) at 8; IAF, Tab 12 (video footage). However, given that the appellant came so close to the two employees that he had to steer away from them to leave the area, the administrative judge found that the appellant unnecessarily created an unsafe situation that caused at least one of the coworkers to feel scared and nervous.2 ID at 8. We agree that this finding is consistent with the video evidence. Moreover, to the extent the administrative judge found the appellant’s testimony not credible, we do not discern sufficiently strong reasons to overturn 2 The administrative judge also found that the appellant had no official reason to be in the area, although the specification is silent on this point. 3 her implicitly demeanor-based credibility determination. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Under the second specification, the agency alleged that on October 14, 2020, while on duty, the appellant engaged in an argument with a coworker, S.N., while “using profanity, [waving his] arms, and yelling.” Id. The appellant does not dispute that the altercation took place or that his conduct was inappropriate.3 However, he argues that the agency violated the applicable collective bargaining agreement (CBA) by waiting 6 months before taking disciplinary action based on the incident. I-2 AF, Tab 9 at 5 n.1; Petition for Review (PFR) File, Tab 1 at 12-13. Specifically, he cites Article 27, Section 3, which provides that disciplinary actions “should be taken in a timely fashion.” PFR File, Tab 1 at 12. We construe the appellant’s claim as an affirmative defense of harmful procedural error. See Cambridge v. Department of Justice , 111 M.S.P.R. 152, ¶ 11 (2009) (holding that the harmful error standard applies to alleged violations of a CBA). However, assuming that the agency’s delay in effecting the action was in violation of the CBA, the appellant has not shown that such delay was harmful, i.e., that the agency likely would not have removed him in the absence or cure of the delay. See Social Security Administration v. Carr , 78 M.S.P.R. 313, 330-32 (1998) (finding that the appellant was not prejudiced by the agency’s delay in bringing an action even if her memory had faded), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). Hence, the appellant has not shown that the agency’s delay in bringing the action warrants a different result.4 3 The appellant also argues that the first specification, standing alone, would warrant at most a reprimand. Given our finding that the agency proved both specifications of improper conduct, as well as the charge of providing inaccurate information on an employment document, it is unnecessary to address this argument. 4 The Board has also considered “stale charge” claims as raising the equitable defense of laches, which bars an action where an unreasonable delay in bringing the action has prejudiced the subject of the action. Salter v. Department of the Treasury , 92 M.S.P.R. 355, ¶ 10 (2002). The party asserting laches must prove both unreasonable delay and prejudice. Id. Here, even if we were to find that the 6-month delay was unreasonable, 4 The administrative judge correctly sustained the charge of providing inaccurate information on a Declaration for Federal Employment . Regarding the second charge, it is undisputed that, on May 11, 2011, the appellant pled guilty to misdemeanor possession with the intent to distribute marijuana of not more than one-half ounce, and, as a result, he was sentenced to 6 months of probation from May 5 to November 4, 2011. IAF, Tab 6 at 5. On August 24, 2018, the appellant completed a “Declaration for Federal Employment.” IAF, Tab 8 at 10-13. On the form, he checked “no” in response to Question 9, which asked the following question: “During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole?” Id. at 12. It is undisputed that this answer was inaccurate, as the appellant was still on probation at the beginning of the 7-year period. The appellant argues that the agency failed to prove the element of intent required for a charge of falsification. However, the agency did not charge the appellant with falsification, but rather submission of inaccurate information.5 Contrary to the initial decision, this charge does not involve an element of intent. See Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 14 (2014). As it is undisputed that the appellant provided inaccurate information on the form, we agree with the administrative judge that the agency proved the charge. The appellant’s whistleblower retaliation claim is not subject to a higher burden of proof under 5 U.S.C. § 2302(f)(2). On December 12, 2017, Congress passed the National Defense Authorization Act of Fiscal Year 2018 (“2018 NDAA”), Pub. L. No. 115-91, the appellant has not shown that he suffered prejudice as a result. 5 We find nothing in the language of the proposal or decision letter to indicate that the charge should be construed as a charge of falsification. Cf. Washington v. Department of Defense, 2016 WL 3541236, Final Order (June 28, 2016), ¶ 9 (finding that the administrative judge properly construed a charge of Submission of Inaccurate Documents as a falsification charge where the reasons stated in the decision letter exceeded the mere submission of inaccurate documents and encompassed “failure to reveal the truth behind [the appellant’s] actions” and “the submission of false, fictitious, or fraudulent claims”). 5 131 Stat. 1283, amending the language of 5 U.S.C. § 2302(f)(2). 2018 NDAA, § 1097. The revised provision reads as follows: If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee. 5 U.S.C. § 2302(f)(2) (emphasis added). As the Board held in Salazar v. Department of Veterans Affairs , 2022 MPSB 42, ¶¶ 13-14, 22, the effect of this amendment to 5 U.S.C. § 2302(f)(2) is that disclosures made in the normal course of duties of an employee whose principal job function is not to regularly investigate and disclose wrongdoing fall under the generally applicable 5 U.S.C. § 2302(b)(8), and are not subject to the requirement of proving actual reprisal in 5 U.S.C. § 2302(f)(2). The Board further found that the 2018 NDAA’s version of 5 U.S.C. § 2302(f)(2) may be applied retroactively. Salazar, 2022 MPSB 42, ¶ 21. Here, it is undisputed that the appellant's disclosures were made to his supervisor in the normal course of his duties. However, the agency does not allege, nor is there evidence in the record establishing, that the appellant's principal job function is to regularly investigate and disclose wrongdoing. To the contrary, the appellant’s position description states that the “primary purpose of this position is to operate boom cranes and marine travel lifts in support of USCG activities within the Naval Engineering Support Units of the Industrial Operations Division.” IAF, Tab 8 at 20. Thus, contrary to the administrative judge’s analysis, the additional evidentiary burden under § 2302(f)(2) does not apply to the appellant. Rather, the appellant need only prove only that he had a reasonable belief his disclosure evidenced a violation of law, rule, or regulation in order to 6 satisfy his burden of proving he made a protected disclosure under § 2302(b)(8). The administrative judge found, and the agency does not dispute, that the appellant did make a protected disclosure of a substantial and specific danger to public health or safety. ID at 17 (“It appears undisputed that the appellant made disclosures regarding specific safety concerns that a reasonable person in his position would likely believe evidenced a substantial and specific danger.”). The appellant established that his protected disclosures were a contributing factor in the agency’s decision to remove him. The next question to be decided is whether the appellant’s protected disclosures were a contributing factor in the agency’s decision to remove him. The most common way of proving that a disclosure was a contributing factor in a personnel action is the “knowledge/timing” test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff'd per curiam, 353 F. App'x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor element through evidence that the official taking the personnel action knew of the whistleblowing disclosure and took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.6 Id.; see 5 U.S.C. § 1221(e)(1). Here, both the proposing and deciding officials testified that they were aware of at least some of the appellant’s safety disclosures, although they were not the direct recipients of those disclosures. Hearing Recording, Track 5 (testimony of the proposing official, on direct), Track 6 (testimony of the deciding official, on direct). Moreover, the appellant’s disclosures, which took place between February 2020 and January 2021, were close enough in time to the 6 The knowledge/timing test is not the only way for an appellant to satisfy the contributing factor standard. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, she should consider other evidence, such as (1) evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action; (2) whether the whistleblowing was personally directed at the proposing or deciding officials; and (3) whether these individuals had a desire or motive to retaliate against the appellant. Id. 7 appellant’s removal that a reasonable person could conclude that they were a contributing factor in the action. See Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 41 (holding that personnel actions occurring as late as 1 to 2 years after the protected disclosures are sufficient to meet the timing portion of the test). Accordingly, we find that the appellant has established a prima facie case of whistleblower retaliation. We remand the case for a new finding on whether the agency proved by clear and convincing evidence that it would have removed the appellant absent his protected disclosures. When an appellant makes out a prima facie case of whistleblower reprisal, the agency has the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). Here, after finding that the appellant failed to establish a prima facie case of whistleblower reprisal, the administrative judge further found that the agency proved by clear and convincing evidence that it would have removed him even in the absence of his disclosure. However, under 5 U.S.C. § 1221(e)(2), the Board may not proceed to the clear and convincing test unless it has first made a finding that the appellant established his prima facie case. Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff'd, 623 F. App'x 1016 (Fed. Cir. 2015); disagreed with on other grounds by Delgado v. Merit Systems Protection Board , 880 F.3d 913 (Fed. Cir. 2018). Accordingly, because the administrative judge found that the appellant failed to establish a prima facie case of whistleblower reprisal, it was inappropriate for her to proceed to the clear and convincing test. We therefore vacate that portion of the initial decision. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). However, given our finding on review that the appellant has established a prima facie case of whistleblower reprisal, it is now appropriate to address whether the agency has shown by clear and 8 convincing evidence that it would have taken the same actions in the absence of his protected disclosures. In determining whether the agency has met its burden of proving by clear and convincing evidence that it would have taken the same personnel action in the absence of the appellant’s whistleblowing, the following factors should be considered: (1) the strength of the agency’s evidence in support of its personnel 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 otherwise whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 36 (2011). The Board considers all of the relevant evidence, including evidence that supports the agency’s case and the evidence that detracts from it. Soto v. Department of Veterans Affairs , 2022 M.S.P.R. 6, ¶ 11; see Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012). In her premature analysis of the “clear and convincing” evidence test, the administrative judge did not specifically address all three factors identified in Carr, 185 F.3d at 1323. Nor does it appear that she considered all of the relevant evidence as a whole. For example, in assessing the existence of a retaliatory motive on the part of the responsible agency officials, the administrative judge considered only whether those officials were personally implicated by the disclosures or suffered disciplinary action as a result. This was an erroneously restrictive view of the second Carr factor. See Whitmore, 60 F.3d at 1370 (observing that “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacities as managers and employees”). 9 It is therefore necessary to reconsider whether the agency has met its burden of proof. We find the administrative judge is in the best position to do so because she is the one who heard the live testimony and made credibility determinations. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013). On remand, the administrative judge should specifically address all three Carr factors and consider all the relevant evidence as a whole, including both the evidence that supports the agency’s case and the evidence that detracts from it. See id. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order.7 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order.	Garrison_MichaelDC-0752-21-0462-I-2__Remand_Order.pdf	2024-04-18	MICHAEL GARRISON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-21-0462-I-2, April 18, 2024	DC-0752-21-0462-I-2	NP
1,735	https://www.mspb.gov/decisions/nonprecedential/Buta_PaulCH-4324-16-0388-C-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAUL BUTA, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBERS CH-4324-16-0388-C-1 CH-4324-16-0388-I-3 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Teresa J. Buta , Georgetown, Kentucky, for the appellant. Eden Thompson and Jessica A. Neff , 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 June 25, 2018 initial decision, which dismissed his initial appeal as settled. Buta v. Department of Homeland Security , MSPB Docket No. DC-4324-16-0388-I-3 ( Buta I). He also petitions for review of the December 16, 2021 initial decision, which denied his petition for enforcement of the settlement agreement. Buta v. Department of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Homeland Security , MSPB Docket No. DC-4324-16-0388-C-1 ( Buta II). For the reasons set forth below, we JOIN the proceedings,2 DISMISS the appellant’s petition for review in Buta I as untimely filed without a showing of good cause for the delay, DENY the appellant’s petition for review in Buta II,3 and AFFIRM the Buta II initial decision, which is now the Board’s final decision in that matter. 5 C.F.R. § 1201.113(b). BACKGROUND On May 10, 2016, the appellant, at that time an employee of the U.S. Secret Service, filed an appeal alleging that the agency violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Buta v. Department of Homeland Security , MSPB Docket No. DC- 4324-16-0388-I-1. The appeal was dismissed without prejudice twice and refiled for the final time on February 26, 2018. Buta I, Appeal File (I-3 AF), Tab 2. On June 18, 2018, after a hearing had taken place, the parties executed a settlement agreement resolving the appeal. I-3 AF, Tab 42. The agreement provided the appellant with benefits including (1) monetary compensation of $15,000; (2) promotion from a GS-13 to a GS-14 position; (3) selection for training in the next introductory network intrusion examination class (B -NITRO) class; and (4) up to $20,000 in student loan repayment assistance with a waiver of 2 We find that joinder will expedite the processing of these cases and will not adversely affect either party. See 5 U.S.C. § 7701(f); 5 C.F.R. § 1201.36; see also Washington v. Department of the Navy , 101 M.S.P.R. 258, ¶ 1, n.1 (2006). 3 Generally, we grant a petition such as this 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 Buta II.2 the agency’s service period requirement. Id. The administrative judge dismissed the appeal as settled and entered the agreement into the record for enforcement purposes. I-3 AF, Tab 43, Initial Decision (ID). It is undisputed that the appellant was subsequently promoted to a GS-14 Technical Staff Assistant (TSA) position. On July 31, 2019, the appellant sent an email to the Cyber Crimes Program Analyst, informing him that he had not been selected for an upcoming B-NITRO class, as required under the agreement. Buta II, Appeal File (C-1 AF), Tab 3 at 14. A courtesy copy of the email was provided to the agency representative who had participated in the settlement negotiations. Id. The appellant was subsequently placed in a B -NITRO class from August 5 to August 19, 2019. C-1 AF, Tab 1 at 34. However, at some point thereafter the appellant learned that there had already been two B-NITRO classes, held on March 4-22, 2019, and April 29-May 17, 2019, for which he was not selected. Id. At 24-25, 27-28. In an email dated February 4, 2021, the appellant notified the Assistant Director that he believed the agency had breached the agreement by failing to provide him sufficient training for the GS-14 TSA position, and by failing to place him in the first B-NITRO class after the effective date of the agreement. Id. At 63-64. The appellant stated that, in his view, the purpose of the agreement was “to elevate me to a position and provide me the training, experience, and education, which would allow me to pursue a lucrative post-employment career” and that he was unable to meet that goal. Id. At 64. He noted that he was scheduled for mandatory retirement on March 31, 2021, and requested that he be rehired as an annuitant after his retirement in order to resolve the matter. Id. The following day, February 5, 2021, the agency representative responded to the appellant’s email. Id. At 63. The agency representative stated that the Office of General Counsel had reviewed the settlement and concluded that the agency was “in substantial compliance with all of the terms of the agreement.” Id. At 63. According to the appellant, this response constituted an admission that3 the agency “never intended to train, educate, or minimally qualify” him for his GS-14 position and that it fraudulently enticed him to enter the agreement with the false assurance of a “lucrative, post-employment career” in the cyber security field. Id. At 10. On March 16, 2021, the appellant filed a pleading with the Board, labeled as a petition for review of the initial decision in Buta I. Buta I, Petition for Review (I-3 PFR) File, Tab 1. In his submission, the appellant alleged that the agency materially breached the agreement by (1) failing to place him in the first available B-NITRO class after the effective date of the agreement; and (2) failing to provide him with additional training and education needed to perform the duties of the GS-14 TSA position to which he had been promoted pursuant to the agreement. Id. At 6-8. Citing the February 5, 2021 response from the agency representative, the appellant further argued that the agency had fraudulently induced him into signing the settlement agreement. Id. At 8-10. The appellant also alleged that the agency had retaliated against him for filing his Board appeal. Id. At 8. The following day, March 17, 2021, the Office of the Clerk of the Board issued an acknowledgment letter, which notified the appellant that his petition appeared to be untimely filed. I-3 PFR File, Tab 2. That same day, the appellant filed a request to withdraw the petition for review, stating that it had been filed “in error.” I-3 PFR File, Tab 3. On March 18, 2021, the appellant’s wife, who was serving as his representative, spoke by telephone with an employee in the Office of the Clerk of the Board. During that conversation, the appellant’s wife clarified that the March 16, 2021 pleading was intended solely as a petition for enforcement of the settlement agreement and that the appellant wished to withdraw his petition for review. I-3 PFR File, Tab 4. Accordingly, on March 22, 2021, the Office of the Clerk of the Board rescinded the acknowledgment letter and referred the appellant’s pleading to the Central Regional Office for processing as a petition for enforcement. Id.; C-1 AF, Tab 1. 4 Based on his review of the record, the administrative judge denied the appellant’s petition for enforcement. C-1 AF, Tab 6, Compliance Initial Decision (CID) at 9. He agreed with the appellant that the agency had breached the agreement by not placing him in the first available B-NITRO class, but found that the breach was not material, and therefore not actionable. CID at 9-11. As to the second claimed breach, the administrative judge found that the agreement did not contain any terms requiring the agency to provide additional training and education relating to the GS-14 TSA position, notwithstanding the appellant’s claim that the agency representative had made verbal assurances to that effect. CID at 12-18. The administrative judge further explained that the appellant’s allegations of retaliation were outside the scope of the petition for enforcement and that a challenge to the validity of the agreement itself should be raised in a petition for review of the initial decision that dismissed the underlying appeal. CID at 18-20. He also denied the appellant’s motion for sanctions. CID at 20-21. On January 17, 2022, the appellant filed a pleading labeled as a petition for review of the initial decision in Buta II. Buta II , Petition for Review (C-1 PFR) File, Tab 1. In addition to reiterating his arguments from below, the appellant further contended that the agency’s failure to provide additional training constituted a violation of merit systems principles, specifically, 5 U.S.C. § 2310(b)(7). C-1 PFR File, Tab 1 at 6-7. The Board issued an acknowledgment letter, identifying the appellant’s January 17, 2022 pleading as a petition for review in Buta II. C-1 PFR File, Tab 2. The agency responded, and the appellant replied to the agency’s response. C-1 PFR File, Tabs 4-5. While that petition for review was still pending, the Board determined that, insofar as the appellant continued to challenge the validity of the agreement, the January 17, 2022 pleading also served as a new petition for review in Buta I. Accordingly, on February 7, 2023, the Board issued a second acknowledgment letter. I-3 PFR File, Tab 5. The acknowledgment letter noted that the January 17, 2022 petition was untimely filed with respect to the June 25, 2018 initial decision5 in Buta I, and directed the appellant to file a motion asking the Board to accept the filing as timely or waive the time limit for good cause. I-3 PFR File, Tab 5. The appellant filed the requested motion. I-3 PFR File, Tab 7. The agency filed a response to both the timeliness motion and the petition for review itself, and the appellant replied to the agency’s response. I-3 PFR File, Tabs 8, 9. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s petition for review of the initial decision in Buta I was untimely filed without a showing of good cause for the delay. A petition for review must be filed within 35 days after the date of the issuance of the initial decision. 5 C.F.R. § 1201.114(d). The initial decision in Buta I was issued on June 25, 2018. Hence, to be timely, a petition for review of that decision had to be filed by July 30, 2018. Because the appellant withdrew his original petition for review in Buta I, we consider the January 17, 2022 pleading as a new petition for review in that proceeding. See Black v. Department of Housing and Urban Development , 66 M.S.P.R. 283, 286 (1995). Thus, the appellant’s current petition for review in Buta I was untimely filed by more than 3 years.4 The Board will waive the filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(f). To establish good cause for an untimely filing, 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 4 Insofar as we consider the pleading as a petition for review of the compliance initial decision in Buta II, we find that it was timely filed. 6 relationship to his inability to timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). In his timeliness motion, the appellant states that he did not learn of the agency’s alleged fraudulent intent until his mandatory retirement date was approaching, and he reached out to the agency seeking additional training and education before he retired. I-3 PFR File, Tab 7 at 10. This appears to be a reference to the February 2021 email exchange discussed above. C -1 AF, Tab 1 at 63-64. However, assuming without deciding that the appellant exercised due diligence in filing his March 16, 2021 petition for review, which he elected to withdraw, he has not explained the subsequent delay of approximately 10 months before filing his current petition for review on January 17, 2022. While the appellant’s decision to withdraw his first petition for review may have been ill-considered, an appellant is responsible for the errors of his chosen representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). Moreover, a delay of 10 months is significant. See Murphy v. Department of the Army, 98 M.S.P.R. 624, ¶ 7 (2005) (finding a filing delay of 9 months significant, notwithstanding the appellant’s pro se status). Accordingly, we find that the appellant has not shown good cause for the untimely filing of his petition for review in Buta I, and we therefore dismiss it. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review in Buta I. The initial decision remains the final decision of the Board regarding the USERRA appeal. The appellant’s petition for review in Buta II is denied. Turning to Buta II, we discern no error in the administrative judge’s conclusion that the appellant failed to establish a material breach of the settlement agreement. The appellant’s arguments to the contrary amount to mere disagreement with the administrative judge’s findings and do not warrant further review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding7 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). As to the appellant’s contention that the agency violated 5 U.S.C. § 2310(b)(7), the appellant did not raise this claim below, and he has not shown that the argument is based on evidence that was not previously available.5 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). Finally, we have considered the appellant’s contention that the administrative judge conspired with the agency to deprive him of a remedy for the agency’s alleged wrongdoing. However, we find that the appellant’s allegations of bias do not suffice to overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980); see Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (stating that an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible”) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). 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). 5 In any event, the terms of the settlement agreement make no reference to the agency’s obligations under 5 U.S.C. § 2301(b)(7). 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.8 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the10 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of11 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Buta_PaulCH-4324-16-0388-C-1__Final_Order.pdf	2024-04-18	PAUL BUTA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-4324-16-0388-I-3, April 18, 2024	DC-4324-16-0388-I-3	NP
1,736	https://www.mspb.gov/decisions/nonprecedential/Ibanez_Thomas__P_DE-0752-21-0104-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THOMAS P. IBANEZ, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-21-0104-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Thomas P. Ibanez , Clearfield, Utah, pro se. Darrin K. Johns , Hill AFB, 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 affirmed his removal from Federal service. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or 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). DISCUSSION OF ARGUMENTS ON REVIEW The agency employed the appellant as a Maintenance Mechanic until his removal from Federal service based on charges of illicit drug use, violation of agreement for “Safe Haven,” and lack of candor. Initial Appeal File (IAF), Tab 4 at 16-17, 37-39. After a hearing, the administrative judge upheld the three charges, found that the appellant failed to prove his affirmative defense of harmful procedural error regarding his claim that the agency violated an Executive Order concerning a drug-free workplace, and found that the penalty of removal was reasonable. IAF, Tab 29, Initial Decision. The appellant has filed a petition for review of the initial decision, asserting that he was prejudiced in his ability to file prehearing submissions because his lawyer withdrew shortly before the deadline, that the agency erroneously treated him as a “non -bargaining member,” and that he was provided misinformation before the hearing. Petition for Review (PFR) File, Tab 1 at 9-10. His petition for review contains over 300 pages of attachments. Id. at 12-353. The agency has filed an opposition, and the appellant has filed a reply, wherein he made several additional arguments. PFR File, Tabs 4-5. The Board generally will not consider new evidence or argument submitted for the first time with a petition for review absent a showing that it was2 unavailable before the record closed despite due diligence. See 5 C.F.R. § 1201.115(d). Many of the documents attached to the appellant’s petition for review are already included in the record and are not new. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (holding that evidence that is already part of the record is not new). The appellant has not asserted that the remaining documents were unavailable before the record closed despite his due diligence, and therefore, we do not consider them. See 5 C.F.R. § 1201.115(d). Although the appellant asserts that his attorney’s withdrawal resulted in his inability to submit the documents in accordance with the deadline for prehearing submissions, he has not asserted that he himself was unaware of the deadline and he has not explained why he did not seek leave to file the documents after the missed deadline. PFR File, Tab 1 at 9; see Buckser v. Environmental Protection Agency , 45 M.S.P.R. 274, 278 (1990) (stating that an appellant’s assertions that his attorney withdrew prior to a filing deadline did not establish good cause for the late filing because he did not explain why he did not himself file before the deadline expired). To the extent the appellant asserts that he missed the filing deadline due to misinformation or “contradicting instructions” from the administrative judge, he has not explained the basis of these claims in his petition for review, and we find that the administrative judge properly advised the appellant of his burden to establish good cause for the late submission of documents or evidence but that the appellant did not avail himself of that opportunity by filing a motion. PFR File, Tab 1 at 9-10; IAF, Tab 24 at 8. Finally, the appellant asserts that the agency failed to properly treat him as a bargaining unit employee and may have denied him certain procedures. PFR File, Tab 1 at 10-11. Though the appellant did not explain the basis of this claim in his petition for review, his reply to the agency’s response to his petition for review appears to assert that the agency should have applied the 2018 Air Force3 Instructions to his disciplinary action instead of the 1994 Air Force Instructions.2 PFR File, Tab 5 at 4. He appears to claim that the agency failed to follow several provisions of the 2018 instructions. Id. at 4-6. The appellant did not assert, and we do not find any evidence in the record, that he timely raised this claim before the administrative judge. In any event, none of the cited provisions provide a basis to disturb the findings in the initial decision. The appellant makes additional arguments for the first time in his reply to the petition for review, including that he was prejudiced in his ability to present documents at the hearing because of his lack of competence in navigating the Board’s e-Appeal system and because the administrative judge did not allow him to “reference the prehearing video,” and that a “Clinical Medical Institution” violated his rights under the Health Insurance Portability and Accountability Act and the Freedom of Information Act. Id. at 4-8. He also appears to challenge the credibility of the agency’s witnesses.3 Id. at 6. The appellant has not asserted that these arguments are based on new and material evidence not previously available despite due diligence. See Hodges v. Office of Personnel Management , 101 M.S.P.R. 212, ¶ 7 (2006) (stating that the Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence that was not previously available despite the party’s due diligence); 5 C.F.R. § 1201.114(a)(4) (stating that a reply is limited to issues raised by another party in the response to the petition for review and may not raise new allegations of error). In any event, nothing in the 2 An agency official testified at the hearing that the 1994 Air Force Instructions were applied because the appellant’s bargaining unit had not approved the 2018 Air Force Instructions. Hearing Recording (testimony of J.K.). 3 The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).4 appellant’s reply provides a basis to disturb the initial decision, and we therefore affirm it. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Ibanez_Thomas__P_DE-0752-21-0104-I-1__Final_Order.pdf	2024-04-18	THOMAS P. IBANEZ v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-21-0104-I-1, April 18, 2024	DE-0752-21-0104-I-1	NP
1,737	https://www.mspb.gov/decisions/nonprecedential/Bohorquez_Carlos_M_CH-1221-21-0425-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CARLOS BOHORQUEZ, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER CH-1221-21-0425-W-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carlos Martin Bohorquez , Belleville, Illinois, pro se. John Brian Manion , Scott Air Force Base, 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 found that he failed to make a prima facie case of whistleblower reprisal in his individual right of action (IRA) appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, FIND that the appellant established a prima facie case of whistleblower reprisal, and DENY the appellant’s request for corrective action because the agency 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). established by clear and convincing evidence that it would have proposed the appellant’s removal absent his whistleblowing. BACKGROUND The appellant was a GS-11 Catholic Chaplain for the agency at Scott Air Force Base (Scott AFB) located in Illinois. Initial Appeal File (IAF), Tab 25 at 19. Effective February 24, 2021, the appellant was placed in a paid non-duty status due to a pending agency investigation into allegations of his sexual misconduct. Id. at 29-31. Shortly thereafter, the base Commander barred the appellant from entering the base. Id. at 30-31. Then, on May 14, 2021, the Archbishop for the Military Services withdrew the ecclesiastical endorsement for the appellant. Id. at 24-25. As a result, on June 7, 2021, the agency proposed the appellant’s removal for failure to maintain a condition of his employment. Id. at 19-23. The appellant filed a complaint with the Office of Special Counsel (OSC), asserting that the agency issued the proposed removal in retaliation for his protected disclosures, i.e., reporting that another Chaplain had violated the Privacy Act and Air Force Instruction (AFI) by secretly recording a staff meeting. IAF, Tab 6 at 20-21. After OSC closed its investigation into the appellant’s complaint, he filed this appeal with the Board. Id. at 11-12; IAF, Tab 1. The administrative judge issued an order on jurisdiction, notifying the appellant of the applicable legal standards and affording him an opportunity to present evidence and argument establishing Board jurisdiction. IAF, Tab 3. In his response, the appellant alleged that the agency proposed his removal because he reported that another Chaplain had recorded a staff meeting without his consent, which he disclosed on (1) March 18, 2021, to the agency’s Civilian Appellant Review Office (AFCARO);2 (2) May 26, 2021, in a letter to the agency’s FOIA office; and (3) May 28, 2021, in an email to, among others, 2 The AFCARO issues Final Agency Decisions in equal employment opportunity (EEO) complaints. IAF, Tab 6 at 66-69. 2 the proposing official, attaching a copy of his appeal of the base Commander’s decision to bar him from base. IAF, Tab 6 at 3-4, 50-51, 55-56, 66-69. Upon reviewing the submission, the administrative judge issued an order finding that the Board had jurisdiction over whether the agency’s June 7, 2021 proposed removal “was retaliation for the appellant’s May 2021 disclosures that the agency may have unlawfully made a ‘secret’ recording of a staff meeting.” IAF, Tab 12 at 1. The appellant filed a response to the administrative judge’s order, requesting that he include the March 18, 2021 disclosure in his jurisdictional findings, because the appellant was not certain if the proposed removal was in retaliation for the March 18, 2021 disclosure or the May 2021 disclosures. IAF, Tab 14 at 3. The administrative judge denied the appellant’s request to include the March 18, 2021 disclosure, finding that the appellant failed to exhaust his administrative remedies regarding that matter with OSC, and failed to make a nonfrivolous allegation that the disclosure was a contributing factor in the proposed removal. IAF, Tab 17. The administrative judge then issued a decision on the written record denying the appellant’s request for corrective action because he failed to establish a prima facie case of whistleblower reprisal.3 IAF, Tab 34, Initial Decision (ID). First, he found that the proposing official was only aware of the appellant’s May 28, 2021 disclosure, i.e., the email attaching his appeal of the bar from base, and that this disclosure was not protected because it was too vague and conclusory. ID at 7-10. Then, the administrative judge found that, even if the appellant had provided the proposing official with more details in the May 28, 2021 disclosure, the appellant failed to establish that he held a reasonable belief that his disclosure, i.e., of the secret recording, evidenced a violation of the Privacy Act or Air Force regulations. ID at 11-14. Thus, because the administrative judge found that the appellant failed to establish his prima facie 3 The appellant did not request a hearing. IAF, Tab 1 at 1.3 case of whistleblower reprisal, he denied the appellant’s request for corrective action. ID at 15. The appellant has filed a petition for review arguing, among other things, that the administrative judge too narrowly construed the whistleblower protection statutes, that the appellant established that the agency violated a law, rule, or regulation, and that the proposing official was aware of his protected disclosure.4 Petition for Review (PFR) File, Tab 1 at 5-10. The agency has responded in opposition to the appellant’s petition for review. PFR File, Tab 5. DISCUSSION OF ARGUMENTS ON REVIEW Under the Whistleblower Protection Enhancement Act of 2012, after the appellant makes a nonfrivolous allegation of jurisdiction, he must prove by preponderant evidence that (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D) and; (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the 4 The appellant has also argued that the administrative judge abused his discretion. Petition for Review File, Tab 1 at 10-12. First, to the extent that the appellant argues that the administrative judge abused his discretion by failing to intervene in discovery, as the appellant admits, the administrative judge was unaware of any discovery disputes because the appellant never filed a motion to compel. Id. at 10. The administrative judge does not have an affirmative duty to step in and direct the discovery process, and, as he was unaware of any issues, he could not have abused his discretion as he was not asked to exercise it. Furthermore, to the extent that the appellant alleges that the administrative judge abused his discretion by refusing to consider evidence related to the circumstances surrounding his proposed removal, id. at 10-12, we agree that the administrative judge improperly limited his review of the contributing factor standard to the knowledge/timing test, ID at 8, 10. The Board has held that if an administrative judge determines that an appellant has failed to satisfy the knowledge/timing test, he shall consider other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed towards the officials taking the action, or whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). However, as explained herein, because we find that the appellant satisfied the knowledge/timing test, this error has no impact on our analysis. 4 Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant proves that his protected disclosure or activity was a contributing factor in a personnel action taken against him, the agency is then given the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Id.; see 5 U.S.C. § 1221(e). As set forth below, we find that the appellant established by preponderant evidence that his disclosures on March 18, 2021, May 26, 2021, and again on May 28, 2021, all of which reported that another Chaplain recorded a staff meeting without the appellant’s consent, were protected under 5 U.S.C. § 2302(b) (8)(A). We also find that, because the appellant met the contributing factor standard through the knowledge/timing test, he established a prima facie case of whistleblower reprisal. However, because the agency has established by clear and convincing evidence that it would have proposed the appellant’s removal absent his whistleblowing, we deny the appellant’s request for corrective action. The appellant’s May 28, 2021 disclosure of the recording is protected. In the initial decision, the administrative judge found that, of the appellant’s three disclosures, the proposing official only knew of the May 28, 2021 disclosure, i.e., the email sent to the proposing official attaching a copy of the appellant’s letter appealing the Commander’s decision barring him from base. ID at 7-10. In the appeal letter, the appellant stated that he was “concerned that [he was] being singled out” and “[h]opefully it [was] not because [he] . . . reported . . . the illegal keeping of secret files (tape recordings of [him]) by the Base Chapel in violation of the Privacy Act and Air Force Regulations.” IAF, Tab 6 at 50-51. The administrative judge determined that the statements were too vague and conclusory, and thus, the appellant’s May 28, 2021 disclosure was not protected. ID at 8-10. To the contrary, we find the appellant’s May 28, 2021 disclosure to be sufficiently specific and detailed to be protected under 5 U.S.C. § 2302(b)(8)(A). The appellant’s statement contains the nature of the alleged misconduct,5 i.e., recording a meeting without the consent of the appellant, and the law and regulation allegedly violated, i.e., the Privacy Act and Air Force regulations. IAF, Tab 6 at 50-51. This is not a general allegation of wrongdoing, nor is this a vague assertion of misconduct without any details. Instead, the appellant’s statement provides the recipient, i.e., the proposing official, with sufficient information to understand what misconduct the appellant was reporting and the law it allegedly violated. Thus, the appellant’s statement is sufficiently detailed and specific to be considered a protected disclosure under 5 U.S.C. § 2302(b)(8) (A). The appellant established that he had a reasonable belief that he disclosed a violation of law, rule, or regulation and that his disclosures were a contributing factor in the proposed removal. In the initial decision, the administrative judge found that, even if the appellant’s May 28, 2021 disclosure included more detailed assertions like those contained in his other disclosures, it was still not protected because the appellant failed to establish that he held a reasonable belief that the alleged misconduct evidenced a violation of either the Privacy Act or Air Force regulations.5 ID at 11-14. In doing so, the administrative judge reviewed the language of the Privacy Act, as well as relevant case law, and found that a disinterested observer with knowledge and understanding of this language could not conclude that the appellant’s assertions evidenced a violation of the statute. ID at 11-13. Next, he found that, because the Air Force regulation the appellant cited to, i.e., AFI 33-332, specifically refers to the Privacy Act and parrots the language of the statute, the appellant also did not hold a reasonable belief that his disclosure evidenced a violation of Air Force regulations. ID at 13-14. 5 The administrative judge explained that he did not consider whether the appellant’s disclosure violated the Illinois eavesdropping law because the appellant specifically argued that he did not believe the disclosure violated state law. ID at 6-7. The appellant does not challenge this finding on review and, because we find that the appellant held a reasonable belief that his disclosure evidenced a violation of the Privacy Act and Air Force regulations, as he expressly alleged, we do not address this finding further.6 The administrative judge imposed a more stringent standard on the appellant than is appropriate. A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b) (8)(A); see Salerno, 123 M.S.P.R. 230, ¶ 6. The test to determine whether a whistleblower has a reasonable belief in the disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)(A). Salerno, 123 M.S.P.R. 230, ¶ 6. The Board will consider the appellant’s position and experience when considering whether an appellant held a reasonable belief. See Scott v. Department of Justice , 69 M.S.P.R. 211, 237-38 (1995), aff’d, 99 F.3d 1160 (Fed. Cir. 1996) (Table) (explaining that the appellant’s position as a supervisor and experience as a law enforcement officer placed him in a position to form a belief that documentary evidence had been altered). Thus, the pertinent issue is the essential facts known to or readily ascertainable by the appellant in consideration of his experience and position. In this case, the appellant is not a lawyer, nor does he have any known legal expertise, and therefore, the intricacies and nuances of the Privacy Act would not be known or understood by him. To require of him the knowledge and understanding of an individual well-versed in the intricacies of the Privacy Act was improper. Thus, when considering the appellant’s position and experience, we find that he held a reasonable belief that his disclosure evidenced a violation of law, rule, or regulation. Specifically, we find that a disinterested observer with the essential facts known or readily ascertainable to the appellant could reasonably conclude that an employee recording the appellant without his consent violated the appellant’s privacy, and thus, constituted a violation of the Privacy Act.7 Similarly, the relevant portion of AFI 33-332 prohibits agency employees from “[m]aintaining a System of Records on individuals without their knowledge and/or without a System of Records Notice published in the Federal Register.” IAF, Tab 27 at 79. Thus, we also find that a disinterested observer could reasonably conclude that another employee recording the appellant without his consent constituted a violation of the regulation. Accordingly, we find that that the appellant held a reasonable belief that his disclosures evidenced a violation of law, rule, or regulation. Furthermore, we find that the appellant established that these disclosures were a contributing factor in the proposed removal, as just over 1 week after learning of the disclosure, the proposing official issued the proposed removal. IAF, Tab 6 at 50-51, Tab 25 at 19-23. Thus, contrary to the administrative judge’s findings, the appellant established a prima facie case of whistleblower reprisal. ID at 15. The Board has jurisdiction over the appellant’s March 18, 2021 disclosure of the recording. To the extent that the appellant challenges the administrative judge’s finding that the Board did not have jurisdiction over his March 18, 2021 disclosure, we find that the Board does have jurisdiction. PFR File, Tab 1 at 5-10; IAF, Tab 17. First, contrary to the administrative judge’s findings, the appellant exhausted his administrative remedies with respect to the March 18, 2021 disclosure. IAF, Tab 17 at 1-2. Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his administrative remedies with OSC before seeking corrective action from the Board in an IRA appeal. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 7. The Board has recently clarified the substantive requirements of exhaustion. Id.; see Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Skarada, 2022 MSPB 17, ¶ 7. The Board’s jurisdiction is limited to those issues that have been previously raised with OSC. Id. In his8 OSC complaint, the appellant specifically alleged that he reported the recording to the AFCARO on March 18, 2021. IAF, Tab 6 at 20-21. Accordingly, we find that the appellant did raise the March 18, 2021 disclosure to OSC and thus exhausted his administrative remedies regarding that matter. With respect to the administrative judge’s findings that the appellant failed to make a nonfrivolous allegation that the March 18, 2021 disclosure was a contributing factor in the proposed removal, this was also error. IAF, Tab 17 at 2-3. Specifically, the administrative judge found that the appellant failed to make a nonfrivolous allegation because he expressed uncertainty about whether it was the March 18, 2021 or the May 2021 disclosures that played a role in the proposed removal, and the appellant failed to provide any “well pled facts” establishing that the March 18, 2021 disclosure played a role in the proposed removal. Id. However, to satisfy the contributing factor criterion, the appellant need only establish that the fact of, or the content of, the protected disclosure 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 employee may establish that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure 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 found that personnel actions taken within approximately 1 to 2 years of the protected disclosure satisfy the knowledge/timing test. Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011). Here, the proposing official was aware of the appellant’s disclosure, IAF, Tab 6 at 50-51, and issued the proposed removal approximately 3 months after the March 18, 2021 disclosure. IAF, Tab 25 at 19-23. The appellant’s uncertainty regarding the role that one disclosure played in the agency’s action versus another disclosure9 does not change the fact that he met the knowledge/timing test, and therefore, made a nonfrivolous allegation that his March 18, 2021 disclosure was a contributing factor in his removal. Accordingly, we find that the administrative judge erred in finding that the Board lacked jurisdiction over the appellant’s March 18, 2021 disclosure. IAF, Tab 17. Because the March 18, 2021 disclosure is identical to the May 2021 disclosures, we incorporate the reasons set forth above, and also find that the appellant also proved the merits of the March 18, 2021 disclosure. Even though the appellant made a prima facie case of whistleblower retaliation, the agency established by clear and convincing evidence that it would have proposed the appellant’s removal. If the appellant, as here, makes a prima facie case of whistleblower reprisal, the agency is given the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. § 1221(e). In determining whether an agency has met its burden, the Board will consider all relevant factors, including the following: (1) the strength of 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 do not engage in such protected activity, but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). First, the evidence strongly supports the agency action. The agency proposed the appellant’s removal because he lost his ecclesiastical endorsement. IAF, Tab 25 at 19-25. An ecclesiastical endorsement is required to perform the position of Chaplain, and thus, without this endorsement, the appellant could not perform his position. Id. at 26-28. When an employee is unable to perform his position, there is a strong basis to remove him, as an agency should not be required to allow an employee to occupy a position which he cannot perform. To10 the extent that the appellant alleges that the withdrawal of his ecclesiastical endorsement was improper, the Board has found that it lacks the authority to review the withdrawal decision, and is, in fact, precluded from doing so by the First Amendment. Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 9. Thus, regardless of any other consideration, the fact remains that the appellant could not perform his position, and thus, the evidence supporting removal is extremely strong. We also discern little evidence of a motive to retaliate by the agency. As discussed, the agency was not involved in, and did not have any control over, the Archbishop of Military Service withdrawing the appellant’s ecclesiastical endorsement. IAF, Tab 25 at 26-28. It simply stretches credibility to find that the appellant’s removal, which was a reasonable reaction to the appellant’s inability to perform his position, was actually a result of retaliation on the agency’s part. See Dieter, 2022 MSPB 32, ¶¶ 9-11 (explaining that the agency could properly rely on the loss of ecclesiastical endorsement as the basis of an adverse action). Furthermore, the proposing official was not the target of the disclosure. IAF, Tab 6 at 50-51, 55-56, 66-69. Nevertheless, because we recognize that the proposing official was aware of the disclosures and the disclosures could have arguably caused some embarrassment to agency management, we find that the second Carr factor cuts slightly against the agency. See Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding those responsible for an agency’s overall performance may be motivated to retaliate even if the disclosure does not directly implicate them in their capacity as agency managers and employees). As for the third Carr factor, the agency stated that this was “an issue of first impression” for the proposing official and Scott AFB, as the proposing official confirmed that he had not supervised another civilian chaplain who had his ecclesiastical endorsement withdrawn, and the agency’s Employee Management Relations Specialist confirmed that the appellant was only the11 second individual to hold the position at Scott AFB since it had been converted to a civilian position. IAF, Tab 32 at 12. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016) found that a similar comparator search, which the agency limited to a particular supervisor and particular facility, was “exceedingly narrow,” and concluded that the agency put forth “no evidence” with regards to the third Carr factor because it failed to put forth evidence regarding what actions it took for employees in similar situations agency-wide. Accordingly, in line with the findings of the Federal Circuit, we find that the agency’s comparator search was too narrow, and thus, it failed to put forth sufficient evidence with respect to the third Carr factor. The agency carries the burden of proving by clear and convincing evidence that the same action would have been taken absent the whistleblowing. Whitmore, 680 F.3d at 1374. Because it is the agency’s burden of proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Thus, because the agency did not produce sufficient comparator evidence, the third Carr factor cuts slightly against the agency. Nevertheless, the strength of the agency’s evidence in support of removal is overwhelmingly strong, and thus, we find that the agency met its burden of clear and convincing evidence that it would have removed the appellant12 in the absence of his whistleblowing activity.6 Thus, we deny the appellant’s request for corrective action. NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 6 The appellant has requested that the Board consider “new and material evidence,” specifically, the base Commander’s sworn statement and an additional sworn statement from the proposing official submitted as part of the appellant’s EEO case. PFR File, Tab 1 at 12-18. The appellant did not attach a copy of the statements to his petition for review; however, he did provide a summary of the allegedly relevant testimony. Id. He has also requested to amend his petition for review to include the statements. PFR File, Tab 6. We have reviewed the appellant’s assertions and do not find the new evidence to be material to the issues at hand, or likely to impact our findings in this case. Thus, we deny the appellant’s request to consider this new evidence. 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). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.13 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you14 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 15 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 16 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.17	Bohorquez_Carlos_M_CH-1221-21-0425-W-1__Final_Order.pdf	2024-04-18	CARLOS BOHORQUEZ v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-1221-21-0425-W-1, April 18, 2024	CH-1221-21-0425-W-1	NP
1,738	https://www.mspb.gov/decisions/nonprecedential/Scott_Tyrone_D_SF-1221-22-0512-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TYRONE D. SCOTT, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-1221-22-0512-W-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tamika Sykes , Esquire, Atlanta, Georgia, for the appellant. Harrison Spencer , Arlington, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the appellant did not exhaust his allegation that he engaged in protected activity by filing a complaint with the Office of Inspector General (OIG), we AFFIRM the initial decision. On review, the appellant asserts that the administrative judge conflated the jurisdictional analysis with the merits and that he did not search for regulations that could have applied to the appellant’s alleged whistleblower disclosures. Scott v. Department of the Army , MSPB Docket No. SF-1221-22-0512-W-1, Petition for Review (PFR) File, Tab 4 at 9. We find that the administrative judge properly advised the appellant of his burden to establish jurisdiction over his appeal and applied the correct legal standards in the initial decision. Scott v. Department of the Army , MSPB Docket No. SF-1221-22-0512-W-1, Initial Appeal File (IAF), Tab 3 at 2-3; Tab 14, Initial Decision (ID). For the first time on review, the appellant asserts that his alleged disclosures evidenced violations of Army Regulation 870-5. PFR File, Tab 4 at 9-10. We decline to consider this new argument because the appellant has not established that it was unavailable before the record closed before the administrative judge despite his due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980); 5 C.F.R. § 1201.115. To the extent the appellant alleges on review that he disclosed violations of Title VII of the Civil Rights Act of 1964, PFR File, Tab 4 at 6-7, we agree with the administrative judge that those disclosures are excluded from2 coverage under whistleblower protection statutes. ID at 14; see Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 9-25, aff’d, No. 22-1967 (Fed. Cir. July 7, 2022). We next address the appellant’s assertion that the administrative judge denied his “motion for permission to file additional evidence.” PFR File, Tab 4 at 5. On August 22, 2022, the administrative judge issued an order rejecting a pleading filed by the appellant. IAF, Tab 12 at 1-2. He explained that, based on the substance of the pleading, it appeared that it related to another of the appellant’s Board appeals and not the instant appeal. Id. The administrative judge explained that, if the appellant intended to make another submission related to the Board’s jurisdiction in this appeal, he may do so before the record closed. Id. at 2. The appellant did not make another submission before the record closed. We therefore find no error in the administrative judge’s ruling. To the extent the appellant asserts on review that the record before the administrative judge was incomplete, PFR File, Tab 4 at 5, 9, he has not explained why he did not file the documents he wanted the administrative judge to consider. We have considered the appellant’s assertion that his counsel was ineffective. PFR File, Tab 4 at 5, 7-8. However, an appellant is responsible for the errors of his chosen representative. See Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). The appellant has not challenged the administrative judge’s findings with respect to exhaustion. PFR File, Tab 4. The appellant’s initial filing with the Office of Special Counsel (OSC) is contained in one of the appellant’s earlier filings with the Board, and we take notice that he appears to have exhausted a claim with OSC that he engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(9) by filing a complaint with the Department of Defense’s OIG Hotline. Scott v. Department of the Army , MSPB Docket No. SF-0752-16-0569- I-1, Appeal File, Tab 1 at 31. We therefore vacate the administrative judge’s finding that this protected activity was not exhausted. ID at 15 n.9. The3 appellant has not challenged the administrative judge’s alternative finding that he did not make a nonfrivolous allegation that any decision maker had knowledge of his protected activity. Id. In fact, the appellant did not discuss his OIG activity in any of his filings in this appeal. We therefore find that the appellant failed to nonfrivolously allege that his OIG activity was a contributing factor to any of the alleged personnel actions. Accordingly, we affirm the administrative judge’s dismissal of this appeal for lack of jurisdiction. 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. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Scott_Tyrone_D_SF-1221-22-0512-W-1__Final_Order.pdf	2024-04-18	TYRONE D. SCOTT v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-22-0512-W-1, April 18, 2024	SF-1221-22-0512-W-1	NP
1,739	https://www.mspb.gov/decisions/nonprecedential/Medwetz_Charles__A_PH-0752-22-0113-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES MEDWETZ, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-0752-22-0113-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Matthew Ricci , Esquire, Albany, New York, for the appellant. David P. Tomaszewski , Tobyhanna, 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 involuntary resignation appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 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. Except as expressly MODIFIED to supplement the administrative judge’s analysis regarding the appellant’s allegations of coercion , we AFFIRM the initial decision. The appellant’s arguments do not warrant a different outcome. The appellant argues that the Board has jurisdiction over his allegedly involuntary resignation because “a final decision was issued in this matter” prior to his resignation.2 Petition for Review (PFR) File, Tab 1 at 10-13. To support this argument, the appellant relies largely on the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Mays v. Department of Transportation, 27 F.3d 1577 (Fed. Cir. 1994), which, he contends, “is closely analogous to this appeal.” Id. at 12. We find this argument unpersuasive. In Mays, the Federal Circuit analyzed 5 U.S.C. § 7701(j) and concluded that the subject provision gives the Board jurisdiction to hear the appeal of an employee who retires because his employing agency has issued a decision to remove him, without regard to whether the retirement date falls on or before the effective date of the removal. Mays, 27 F.3d at 1580-81. Following the issuance of Mays, however, the Board has explained that the principle of law enumerated therein is applicable only in retirement appeals, i.e., it is inapplicable when, as 2 On January 31, 2022, the agency issued a decision on removal, informing the appellant that his removal would be effective the following day, on February 1, 2022. Initial Appeal File, Tab 5 at 22-25. The appellant resigned from his position effective January 31, 2022. Id. at 18, 20.2 here, an appellant has resigned from his position. E.g., Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586, ¶ 41 (2009) (stating that the principle enumerated in Mays does not apply to resignations effected in the face of a removal decision); Robinson v. Department of Veterans Affairs , 72 M.S.P.R. 444, 447 (1996) (indicating that the applicability of Mays hinged on whether an appellant retired rather than resigned). Accordingly, the appellant’s argument does not warrant a different outcome. The appellant contends that his removal was coerced and therefore that the Board has jurisdiction over the matter as a constructive adverse action. PFR File, Tab 1 at 13-15. To this end, he asserts that he was subjected to a 6 -hour interview regarding his alleged misconduct, which took place in a “hot, congested room,” and that, during the interview, detectives threatened to polygraph him, told him to “start cooperating, or it [would] only get worse for [him],” accused him of “illicit drug use,” and instructed him to draft a written statement regarding the alleged misconduct containing specific words, e.g., “knowingly” and “intentionally.” Id. at 13. He also asserts that, during his meeting with the deciding official, he was told that “his only other alternative to the removal was to resign,” and that, if he did not resign, he would be removed the following day. Id. at 14. These contentions do not warrant a different outcome. The Board has recognized that employee-initiated actions that appear voluntary on their face are not always so and that the Board may have jurisdiction over such actions as constructive adverse actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013). All constructive adverse actions have two things in common: (1) the employee lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived the employee of that choice. Id., ¶ 8. In analyzing voluntariness, the touchstone is whether, considering the totality of the circumstances, factors operated on the employee’s decision-making process that deprived him of his freedom of choice. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 19 (2007); see Bean, 120 M.S.P.R. 397,3 ¶¶ 8, 11 (explaining that the agency’s wrongful actions must have deprived the employee of a meaningful choice). The mere fact that an employee is faced with the unpleasant choice of either resigning or opposing a potential removal for cause does not rebut the presumed voluntariness of his choice. Lloyd v. Small Business Administration , 96 M.S.P.R. 518, ¶ 3 (2004). Rather, for a resignation in such circumstances to be considered involuntary and therefore appealable as a constructive removal, the employee must establish that the agency did not have reasonable grounds for proposing removal. Id. Here, the appellant has not alleged that the agency lacked reasonable grounds for either investigating or proposing his removal from Federal service; indeed, he has not alleged that he did not engage in the misconduct with which he was charged. Accordingly, the fact that the deciding official presented him with the unpleasant choice of either resigning or opposing a removal action does not render his election to resign involuntary.3 We modify the initial decision. Although not raised by appellant on review, in the initial decision, the administrative judge reasoned that the appellant’s investigatory interview “could not have been so traumatic as to compel his immediate resignation” because “it occurred 10 weeks before the appellant resigned.” Initial Appeal File, Tab 7, Initial Decision at 6. The Federal Circuit has found that, at the jurisdictional stage of a Board proceeding, the Board should not discount the probative value of an allegation that supports a claim of involuntariness because of the passage of time. Trinkl v. Merit Systems Protection Board , 727 F. App’x 1007, 1010-11 (Fed. Cir. 2018).4 Here, however, even assuming that the appellant’s 3 The appellant does not discernably challenge the administrative judge’s conclusion that he did “not appear to be claiming [that] his resignation was the product of misinformation or deception on the part of the agency.” Initial Appeal File, Tab 7, Initial Decision at 5. 4 The Board has found that it may rely on unpublished decisions of the Federal Circuit when, as here, it finds the court’s reasoning persuasive. E.g., Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).4 interview-related allegations support a claim of involuntariness that the administrative judge improperly discounted, we find that a different outcome is not warranted. Indeed, the appellant’s allegations regarding his interview, considered as part of the totality of the alleged circumstances leading up to his resignation, do not constitute a nonfrivolous allegation that his resignation was coerced. Accordingly, we affirm the initial decision as modified. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 7 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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	Medwetz_Charles__A_PH-0752-22-0113-I-1__Final_Order.pdf	2024-04-18	CHARLES MEDWETZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-22-0113-I-1, April 18, 2024	PH-0752-22-0113-I-1	NP
1,740	https://www.mspb.gov/decisions/nonprecedential/Ramirez_DavidDC-0752-22-0154-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID RAMIREZ, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DC-0752-22-0154-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 David Ramirez , Lexington, Kentucky, pro se. Nathan Pasay , Esquire, Norfolk, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his involuntary resignation 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). 2 BACKGROUND Effective August 28, 2018, the appellant resigned from his position as a CY-2 Education Technician in the agency’s Child Development Center. Initial Appeal File (IAF), Tab 1 at 7. Over 3 years later, the appellant filed a Board appeal, alleging, among other things, that he resigned due to “the stress and harassment of the workplace,” and that, despite his many appeals, the agency continued to bar him from accessing military facilities. Id. at 5. The administrative judge issued an acknowledgment order informing the appellant of the applicable jurisdictional standard for involuntary resignation claims. IAF, Tab 4 at 2-5. The administrative judge also issued a supplemental show cause order, providing the appellant with an opportunity to respond to the agency’s allegation that the Board did not have jurisdiction over his appeal because, as a non-appropriated fund employee, he did not meet the definition of an employee under chapter 75.2 IAF, Tab 11 at 1-2, 4-5. The appellant did not respond to the administrative judge’s show cause order. Subsequently, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that his resignation was involuntary, or that he met the definition of an employee under chapter 75. IAF, Tab 12, Initial Decision (ID) at 4-8. The initial decision was mailed to the appellant on February 24, 2022, and stated that the deadline to file a petition for review was March 31, 2022. ID at 8; IAF, Tab 13. However, on March 28, 2022, the appellant’s copy of the initial decision was returned to the Board as undeliverable. IAF, Tab 14. On May 26, 2022, the appellant registered as an e-filer, and therefore was able to access e-Appeal, and thus, the initial decision. IAF, Tab 15. 2 The administrative judge also notified the appellant that his appeal appeared to be untimely filed, set forth the applicable standard for establishing timeliness, and ordered the appellant to present evidence or argument establishing that his appeal was timely filed, or there was good cause for the filing delay. IAF, Tab 11 at 2-5. However, because the administrative judge dismissed the appeal for lack of jurisdiction, she made no findings on timeliness. IAF, Tab 12, Initial Decision at 2, n.3. 3 The appellant filed his petition for review on August 24, 2022, attaching, among other things, documents that he received as part of a Freedom of Information Act request, as well as a copy of his medical records. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board issued an acknowledgment letter, notifying the appellant that his petition for review was untimely filed, and explaining that the Board’s regulations require that an untimely petition for review be accompanied by a motion to accept the filing as timely and/or to waive the time limit for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond to the acknowledgment letter, and the agency did not file a response to the appellant’s petition for review. DISCUSSION OF ARGUMENTS ON REVIEW A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the initial decision was issued, within 30 days after the date the appellant received the initial decision. 5 C.F.R. § 1201.114(e). The appellant bears the burden of proof with regard to timeliness, which he must establish by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(B); McPherson v. Department of the Treasury , 104 M.S.P.R. 547, ¶ 4 (2007) (stating that the appellant bears the burden of proof with regards to timeliness, which he must establish by preponderant evidence). The appellant has produced no evidence establishing that he timely filed his petition for review. The initial decision was sent to the appellant at his address of record, and there is no evidence that the appellant attempted to change or update his address. IAF, Tab 1 at 1, Tab 13. There is also no evidence that the regional office used the incorrect method of service, as the appellant initially declined to register as an e-filer. IAF, Tab 1 at 2. Nevertheless, assuming that the appellant did not receive the initial decision until May 26, 2022, when he registered as an e-filer, his petition for review was still untimely filed. Pursuant to 5 C.F.R. 4 § 1201.114(e), the appellant had to file his petition for review within 30 days of May 26, 2022, i.e., no later than June 27, 2022.3 The appellant filed his petition for review on August 24, 2022, approximately 2 months later. PFR File, Tab 1. Thus, the appellant’s petition for review was untimely filed. The Board will waive a petition for review time limit only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of a petition, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Rivera, 111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)). The appellant has not established good cause for the filing delay. The appellant filed his petition for review approximately 2 months late. Such a filing delay is significant. See Madonti v. Department of the Army , 97 M.S.P.R. 660, ¶ 8 (2004) (finding that a nearly 2-month delay in filing a petition for review was not minimal); Winfrey v. National Archives & Records Administration , 88 M.S.P.R. 403, ¶ 6 (2001) (finding that a 48-day delay was not minimal). We recognize that the appellant is pro se, but nevertheless he has failed to offer a persuasive excuse, show that he acted with diligence, or set forth circumstances beyond his control that affected his ability to comply with the filing limit. In 3 Thirty days from May 26, 2022, was Saturday, June 25, 2022. Thus, pursuant to 5 C.F.R. § 1201.23, the appellant’s deadline to file a petition for review was Monday, June 27, 2022. 5 fact, the appellant failed to address the issue of timeliness in his petition for review, focusing instead on the merits of his appeal. PFR File, Tab 1 at 3-4. He also failed to file a motion to accept his petition for review as timely and/or to waive the time limit for good cause, despite being directed by the Office of the Clerk of the Board to do so. PFR File, Tab 2 at 1-2. Furthermore, although the appellant attached medical records to his petition for review, nothing within those records establishes that the appellant was hospitalized or otherwise medically incapacitated and unable to file a petition for review.4 PFR File, Tab 1 at 5-8, 46-2191. Thus, we do not find that the appellant has established good cause for the filing delay. 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 involuntary resignation appeal.5 NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 4 The Office of the Clerk of the Board notified the appellant of the elements necessary to establish that an untimely filing was the result of an illness. PFR File, Tab 2 at 7, n.1. 5 To the extent that the appellant intended to appeal the agency’s decision to bar him from military facilities, as correctly noted by the administrative judge, ID at 2, n.2, the decision to bar individuals from military facilities or installations is not within the Board’s jurisdiction, see Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation). 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 7 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 8 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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.	Ramirez_DavidDC-0752-22-0154-I-1__Final_Order.pdf	2024-04-18	DAVID RAMIREZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-22-0154-I-1, April 18, 2024	DC-0752-22-0154-I-1	NP
1,741	https://www.mspb.gov/decisions/nonprecedential/Lewis_StephanieAT-0752-21-0106-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEPHANIE LEWIS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBERS AT-0752-21-0106-I-1 AT-3443-21-0138-I-1 AT-3443-21-0155-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephanie Lewis , Stockbridge, Georgia, pro se. Karen Rodgers , Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER ¶1The appellant has petitioned for review of the initial decisions in the above- captioned appeals. Lewis v. Department of Veterans Affairs , MSPB Docket No. AT-0752-21-0106-I-1, Petition for Review (0106 PFR) File, Tab 1; Lewis v. Department of Veterans Affairs , MSPB Docket No. AT-3443-21-0138-I -1, Petition for Review (0138 PFR) File, Tab 1; Lewis v. Department of Veterans 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Affairs, MSPB Docket No. AT-3443-21-0155-I-1, Petition for Review (0155 PFR) File, Tab 1. We JOIN these appeals.2 For the reasons set forth below, we DISMISS the appeals as settled. ¶2After the filing of the petitions for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed by both parties and dated February 23, 2022. 0106 PFR File, Tab 6 at 7-10; 0138 PFR File, Tab 6 at 7-10; 0155 PFR File, Tab 6 at 7-10. The document provides, among other things, for the dismissal of the above-captioned appeals. 0106 PFR File, Tab 6 at 7; 0138 PFR File, Tab 6 at 7; 0155 PFR File, Tab 6 at 7. ¶3Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ). ¶4Here, we find that the parties have entered into a settlement agreement and they understand its terms. We further find that the parties do not intend to enter the settlement agreement into the record for enforcement by the Board, as the agreement instead provides for enforcement by the Equal Employment Opportunity Commission (EEOC). 0106 PFR File, Tab 6 at 8-9; 0138 PFR File, Tab 6 at 8-9; 0155 PFR File, Tab 6 at 8-9; see Grubb v. Department of the Interior, 76 M.S.P.R. 639, 642-43 (1997) (finding that the parties intended the EEOC, not the Board, to enforce a settlement agreement). As the parties do not 2 The parties have filed the settlement agreement in each of the three appeals. See, e.g., 0106 PFR File, Tab 6. Joinder of two or more appeals filed by the same appellant is appropriate when doing so would expedite processing of the cases and not adversely impact 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 three appeals meet this criterion, and therefore, we join them.2 intend for the Board to enforce the settlement agreement, we need not address the additional considerations regarding enforcement and do not enter the settlement agreement into the record for enforcement by the Board. ¶5In light of the foregoing, we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances.3 ¶6This 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 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 3 The submitted settlement agreement also identifies the appeal in MSPB Docket No. AT-3443-21-0229-I-1 as one of the appeals to be settled by the agreement. 0106 PFR File, Tab 6 at 7. However, the initial decision in that appeal became final effective April 23, 2021, when neither party appealed the initial decision by that date. Lewis v. Department of Veterans Affairs , MSPB Docket No. No. AT-3443-21-0229-I-1, Initial Decision at 3 (Mar. 19, 2021). Because the agreement proposing to settle that appeal was submitted more than 2 years after the initial decision became final, it does not fit within any of the regulatory exceptions to the finality of initial decisions and thus cannot be addressed unless the initial appeal is reopened. See 5 C.F.R. §§ 1201.113(a), 1201.114(e). Accordingly, if the parties intend to resolve the appeal in MSPB Docket No. AT-3443-21-0229-I-1 by this settlement agreement, they must file a request to reopen that appeal, and the Board will separately consider the parties’ reopening request. 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 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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	Lewis_StephanieAT-0752-21-0106-I-1__Final_Order.pdf	2024-04-18	STEPHANIE LEWIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0106-I-1, April 18, 2024	AT-0752-21-0106-I-1	NP
1,742	https://www.mspb.gov/decisions/nonprecedential/Anoruo_Joseph_C_SF-1221-22-0024-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPH C. ANORUO, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-1221-22-0024-W-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joseph C. Anoruo , Las Vegas, Nevada, pro se. Erin L. Collins , Esquire, North Las Vegas, Nevada, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) 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 On October 14, 2021, the appellant filed a Board appeal alleging, among other things, that he had sought corrective action from the Office of Special Counsel (OSC) for various agency misdeeds; however, OSC had purportedly mishandled his complaint. Initial Appeal File (IAF), Tab 1 at 5-33. The appellant requested that the Board stay his appeal while OSC considered his request for reconsideration of his complaint. Id. at 5-6. The appellant did not provide his OSC complaint, OSC’s close-out letter, or any documentation that he submitted to OSC. On October 18, 2021, the administrative judge issued an order wherein she explained the circumstances under which the Board has jurisdiction to adjudicate IRA appeals, and she ordered the appellant to identify his claims and to provide specific evidence and argument related thereto not later than October 28, 2021. IAF, Tab 4 at 1-9. The appellant did not respond; instead, on November 28, 2021, he filed a motion requesting that his appeal be stayed “pending the resolution of [an] accepted request for reconsideration of [an] OSC decision [issued on August 11, 2021].” IAF, Tab 8 at 4. In this filing, the appellant averred that he had not seen the administrative judge’s October 18, 2021 order until November 28, 2021, because of various “unavoidable circumstances,” including a family “hospitalization event” and his pursuit of other litigation. Id. The administrative judge denied the appellant’s request on November 29, 2021, IAF, Tab 9 at 1-2,2 and, on December 9, 2021, she issued an initial decision dismissing the matter for lack of jurisdiction, IAF, Tab 10, Initial Decision (ID) at 1, 7. In so doing, the administrative judge explained that it was unclear as to what issues the appellant raised with OSC and, therefore, the appellant had failed to show what, if any, claims he had exhausted. ID at 5-6. The administrative 2 In her order denying the request, the administrative judge provided the appellant additional time, until December 6, 2021, to respond to her order regarding jurisdiction and/or a motion to dismiss that the agency had filed on November 9, 2021. IAF, Tab 9 at 2. The appellant did not respond to either filing.2 judge notified the appellant that the initial decision would become final on January 13, 2022, unless a petition for review was filed by that date. ID at 7. On January 19, 2022, the appellant filed a petition for review. Petition for Review (PFR) File, Tab 1.3 In his petition, the appellant asserts, among other things, that he did not receive the initial decision until January 19, 2022, because of “home computer e-mail issues.” Id. at 4. He also references car trouble and unspecified “[COVID]-19 related issues,” and avers that both the OSC attorney assigned to his case and the administrative judge were under “undue influence.” Id. at 4-5, 7. With his petition, the appellant provides email correspondence with the Office of the Clerk of the Board suggesting that, in October 2021, he experienced difficulties submitting an attachment with a Board filing. Id. at 8-11. The Office of the Clerk of the Board notified the appellant that his petition for review was untimely and explained that he must file a motion asking the Board to accept the petition for review as untimely and/or to waive the time limit for good cause. PFR File, Tab 2 at 1. The appellant thereafter filed a motion requesting that the Board waive the time limit for good cause. PFR File, Tab 3 at 4-6. In so requesting, the appellant seemingly asserts, among other things, that, on January 19, 2022, he experienced car problems, which caused him to “suspect[] imminent danger” and prompted him to log into the “MSPB portal for the first time since November 2021” and see that an initial decision had been issued. Id. at 4. He also asserts that he was “encumbered with [an American Federation of Government Employees (AFGE)] grievance compliant” and other “[COVID]-19 associated problems, kids and family school preparation and holiday,” which caused him to be “out of work for about 3-4 weeks.” Id. at 4 & n.2 (grammar in original). With his motion, the appellant provides documents related to his AFGE grievance and his car troubles. Id. at 7-13, 15-17. 3 The appellant’s ostensible petition, however, was entitled “NOTICE OF PETITION FOR REVIEW,” and indicated that the appellant would “be submitting a petition for review on or before 2/18/2022 or as may be ordered by [the] Board.” PFR File, Tab 1 at 4, 7. 3 He also provides an email indicating that OSC issued a “final decision to close [his] case” on January 18, 2022. Id. at 14. The agency has responded to the appellant’s petition for review, arguing that the appellant “has a lengthy history of missing deadlines and blaming his email account and/or general family issues” and that, as a registered e-filer, the appellant consented to accept electronic service of pleadings. PFR File, Tab 5 at 4-5. The appellant has filed a reply contending, among other things, that the initial decision went to his junk email folder. PFR File, Tab 6 at 5. With his reply, the appellant provides a screen shot of his email inbox and email correspondence with agency officials regarding his requests for annual leave for 3 days in January 2021.4 Id. at 10-12. ANALYSIS A petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that he received the initial decision more than 5 days after the date of the issuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision was issued on December 9, 2021, and electronically sent to the appellant the same day. IAF, Tab 11 at 1. Documents served on registered e-filers are deemed received on the date of electronic submission; thus, the appellant’s petition for review is untimely by 6 days. PFR File, Tab 1; see 5 C.F.R. § 1201.14(m)(2) (2021). The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for an untimely filing, the appellant must show that he exercised due diligence or ordinary prudence under the particular circumstances 4 Following the submission of his reply, the appellant filed a motion requesting to submit a “brief and supporting documents” in support of his petition for review. PFR File, Tab 7 at 4-5. The motion, however, neither identifies what the appellant seeks to submit nor explains why he was unable to submit the unidentified evidence/argument before the close of the record on review. See 5 C.F.R. § 1201.114(k). Accordingly, we deny the motion.4 of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). In determining whether there is good cause, the Board considers the length of the delay, the reasonableness of the excuse and showing of due diligence, whether the appellant is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to his inability to file a timely petition. See Wyeroski v. Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed. Cir. 2007). We find that the appellant has not demonstrated good cause for the untimely filing of his petition for review. Although the appellant is pro se and his 6-day delay is not especially lengthy, we find the appellant’s explanations for his untimeliness unpersuasive. As a registered e-filer, the appellant consented to accept all documents issued by the Board in electronic form and to monitor case activity at e-Appeal to ensure that he had received all case -related documents; indeed, he was responsible for ensuring that email from @mspb.gov was not blocked by filters. IAF, Tab 1 at 2; see Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 7 (2009) (finding that the appellant failed to show that he exercised due diligence in monitoring his case as a registered e -filer); see also 5 C.F.R. § 1201.14(j)(2)-(3) (2021). Moreover, the appellant’s vague assertions regarding his family and a holiday do not provide a basis for waiver of the filing deadline.5 See Fields v. U.S. Postal Service , 56 M.S.P.R. 78, 80 (1992) (explaining that general family difficulties do not constitute good cause for 5 The appellant’s assertions regarding unspecified “[COVID]-19 associated problems” are similarly unavailing. PFR File, Tab 3 at 4. Indeed, in notifying the appellant that his petition was untimely, the Office of the Clerk of the Board explained that, to the extent the appellant was alleging that his health affected his ability to meet filing deadlines, he must do the following: (1) identify the time period during which he suffered from the illness; (2) submit medical or other evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his petition for review. PFR File, Tab 2 at 7 n.1. The appellant did not provide this information. 5 waiver of the deadline for filing a petition for review). Accordingly, we find that the appellant has failed to show good cause for his delay, and we decline to excuse the same. See Lockhart v. Office of Personnel Management , 94 M.S.P.R. 396, ¶¶ 7-8 (2003) (declining to excuse a 5 -day delay in filing a petition for review when the pro se appellant failed to show good cause for the same). To the extent the appellant’s filings dispute the administrative judge’s jurisdictional conclusion or pertain to the merits of his IRA appeal, we find that a different outcome is not warranted. See Guevara v. Department of the Navy , 112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good cause for his untimely filed petition for review when he merely argued the merits of the agency’s removal action). Indeed, the appellant does not allege, and nothing in his filings on review suggests, that any of the new evidence that he provides on review challenges the initial decision; rather, the appellant seemingly provides this evidence to support his unpersuasive claim that good cause exists for his untimeliness.6 Cf. Armstrong v. Department of the Treasury , 591 F.3d 1358, 1363 (Fed. Cir. 2010) (directing the Board to consider whether an appellant diligently filed newly discovered evidence related to a claim of agency fraud with the Board). 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 IRA appeal. 6 As stated, the appellant provides a January 18, 2022 email indicating that OSC issued a “final decision to close [his] case.” PFR File, Tab 3 at 14. To the extent the appellant argues that this email evinces error with the administrative judge’s jurisdictional conclusion, a different outcome is not warranted. Indeed, despite numerous opportunities to do so, the appellant has failed to show what claims he exhausted with OSC. Accordingly, the email does not provide a basis to disturb the initial decision. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011) (explaining that, pursuant to 5 U.S.C. § 1214(a)(3), an IRA appellant must to seek corrective action from OSC before seeking corrective action from the Board, which he may demonstrate proof of through his initial OSC complaint, evidence that he amended his initial complaint, and his written correspondence with OSC). 6 NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with 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.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. 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	Anoruo_Joseph_C_SF-1221-22-0024-W-1__Final_Order.pdf	2024-04-18	JOSEPH C. ANORUO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-22-0024-W-1, April 18, 2024	SF-1221-22-0024-W-1	NP
1,743	https://www.mspb.gov/decisions/nonprecedential/Smith-Jackson_Tanya_M_DA-844E-23-0018-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TANYA M. SMITH-JACKSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-844E-23-0018-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tanya M. Smith-Jackson , League City, Texas, pro se. James Mercier , Esquire, Washington, D.C., 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 found that the appellant proved that she was entitled to reinstatement of her disability annuity benefits between January 1, 2021, and June 30, 2022, due in part to her limited earnings in calendar year 2020, but that the appellant was not entitled to reinstatement for other periods due to her increased earnings in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). calendar years 2018, 2019, or 2021.2 On petition for review, the Office of Personnel Management (OPM) argues that the appellant is not entitled to reinstatement of her disability annuity benefits for any of the time at issue in this appeal. Petition for Review (PFR) File, Tab 1 at 5.3 OPM concedes that the appellant’s earnings in calendar year 2020 did not preclude the period of reinstatement identified by the administrative judge, but it argues that the appellant is not entitled to that reinstatement for two other reasons—because her request for reinstatement was untimely and because her earnings exceeded the allowable limit in calendar year 2021. Id. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for 2 As further explained in the initial decision, the relevant statutory and regulatory scheme looks to the appellant’s earnings in calendar year 2020 to determine whether she is entitled to benefits for the period that follows, between January 1, 2021, and June 30, 2022. See 5 U.S.C. §§ 8455(a), (b)(2); 5 C.F.R. §§ 844.402(a), 844.404(c). 3 In her response, the appellant states that she agrees with the initial decision. PFR File, Tab 3 at 4. The appellant also suggests that she is eligible for reinstatement of her benefits for the 2022 calendar year, but OPM will not issue a decision about the same before the Board issues a final decision in this appeal. Id. However, whether the appellant is entitled to benefits for the 2022 calendar year is not before the Board at this time. This appeal concerns only OPM’s reconsideration decision about the appellant’s request for reinstatement for the calendar years of 2018-2021. Initial Appeal File, Tab 5 at 7-17.2 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 ORDER OPM to reinstate the appellant’s disability retirement benefits as of January 1, 2021, and terminating on June 30, 2022, at the applicable rate. OPM must complete this action no later than 20 days after the date of this decision. ¶3We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). ¶4No later than 30 days after OPM tells the appellant it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a). 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 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.3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for 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	Smith-Jackson_Tanya_M_DA-844E-23-0018-I-1__Final_Order.pdf	2024-04-18	null	DA-844E-23-0018-I-1	NP
1,744	https://www.mspb.gov/decisions/nonprecedential/Page_Gwanancii_M_NY-0831-22-0068-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GWANANCII M. PAGE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-0831-22-0068-I-1 DATE: April 18, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gwanancii M. Page , New York, New York, 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 his appeal as untimely filed without a showing of good cause for the filing delay. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant does not dispute that his appeal was untimely filed by 37 days, but he argues for the first time that the filing was delayed because he was dealing with home repairs. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). The appellant has made no such showing. In any event, the Board has held that general personal difficulties do not establish good cause for an untimely filing. See, e.g., Harris v. Department of Defense , 101 M.S.P.R. 123, ¶ 7 (2006) (finding that the pro se appellant’s assertions that she was seeking employment and attempting to prevent the foreclosure of her home were insufficient to establish good cause). Accordingly , we find no basis for disturbing the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.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	Page_Gwanancii_M_NY-0831-22-0068-I-1__Final_Order.pdf	2024-04-18	GWANANCII M. PAGE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-22-0068-I-1, April 18, 2024	NY-0831-22-0068-I-1	NP
1,745	https://www.mspb.gov/decisions/nonprecedential/McDermott_LanceSF-0353-21-0159-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LANCE MCDERMOTT, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0353-21-0159-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lance McDermott , Seattle, Washington, pro se. Steven Bruce Schwartzman , Esquire, Seattle, Washington, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed this restoration appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the appellant failed to establish jurisdiction over a second restoration claim, we AFFIRM the initial decision. DISCUSSION OF ARGUMENTS ON REVIEW In September 2020, the appellant filed an appeal, which the administrative judge construed as a claim that his December 2019 disability retirement was involuntary. McDermott v. U.S. Postal Service , MSPB Docket No. SF-0752-20-0705-I-1, Initial Appeal File (0705 IAF), Tabs 1-2. The administrative judge would ultimately dismiss that appeal for lack of jurisdiction. 0705 IAF, Tab 32, Initial Decision (0705 ID). However, while adjudicating the involuntary disability retirement appeal, the administrative judge recognized that the appellant also presented allegations of a denied request for restoration. 0705 IAF, Tab 17 at 3. Therefore, she informed him that he could file a separate restoration appeal if he wished. Id. In January 2021, the appellant filed the instant restoration appeal. McDermott v. U.S. Postal Service , MSPB Docket No. SF-0353-21-0159-I-1, Initial Appeal File (0159 IAF), Tab 1. The following facts, as further detailed throughout the records in the appellant’s involuntary disability retirement appeal and this restoration appeal, appear to be undisputed. The appellant was previously employed as a Maintenance Technician, but he had a history of injuries that interfered with his work. E.g., 0705 IAF, Tab 92 at 46-47; 0159 IAF, Tab 6 at 33. This included an April 2019 rotator cuff tear and an older back injury. 0705 IAF, Tab 5 at 130, Tab 9 at 27; 0159 IAF, Tab 6 at 33. In May 2019, the appellant applied for disability retirement. 0705 IAF, Tab 8 at 9-12, Tab 9 at 49. In October 2019, the Office of Personnel Management (OPM) notified the appellant and the agency that the disability retirement application had been approved. 0705 IAF, Tab 8 at 13-15. Among other things, this approval letter indicated that the agency should separate the appellant from service to facilitate the start of interim retirement payments. Id. Despite OPM’s instruction, the agency did not immediately separate the appellant. Instead, in the earliest days of December 2019, the agency searched, without success, for limited duty work suitable for his restrictions. 0705 IAF, Tab 12 at 38; 0159 IAF, Tab 6 at 47. Just days later, the appellant obtained updated medical restrictions, 0705 IAF, Tab 5 at 122; 0159 IAF, Tab 11 at 28, which led to the agency reversing course and offering him a limited-duty position, 0705 IAF, Tab 9 at 36; 0159 IAF, Tab 9 at 9. Evidence submitted with the instant appeal indicates that the position involved helping customers with his left hand only; it did not require that the appellant do any pushing, pulling, reaching, or lifting with his injured right arm. 0159 IAF, Tab 11 at 41. The appellant rejected the agency’s limited-duty position on or around December 10, 2019, claiming it was “demeaning work” involving “heavy packages.” 0705 IAF, Tab 9 at 36; 0159 IAF, Tab 9 at 9. The appellant also indicated that he was rejecting the position because it was not his “regular job position.” 0159 IAF, Tab 11 at 41. In a subsequent Office of Workers’ Compensation Programs (OWCP) decision, the Department of Labor denied the appellant’s request for compensation for the period that followed the December 10, 2019 limited-duty offer. 0159 IAF, Tab 7 at 32-33, Tab 10 at 18-19. OWCP determined that the offered position would have appropriately accommodated his limitation. 0159 IAF, Tab 7 at 32-33, Tab 10 at 18-19. 3 On December 18, 2019, the agency processed the appellant’s separation by disability retirement, identifying December 10, 2019, as his last day in pay status. 0705 IAF, Tab 8 at 17. As mentioned above, the appellant filed an appeal that was construed as an involuntary disability retirement appeal and adjudicated accordingly. His denied restoration allegations were separately docketed as the instant restoration appeal. After developing the record, the administrative judge dismissed this restoration appeal for lack of jurisdiction. 0159 IAF, Tab 23, Initial Decision (0159 ID) at 1. The appellant has filed a petition for review. McDermott v. U.S. Postal Service, MSPB Docket No. SF -0353-21-0159-I-1, Petition for Review (0159 PFR) File, Tab 1. The appellant failed to establish jurisdiction over his claim that the agency improperly denied him restoration as a partially recovered individual in December 2019. The Board has jurisdiction to review whether an agency’s denial of restoration to a partially recovered employee was arbitrary and capricious. Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶ 5 (2016), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11; 5 C.F.R. § 353.304(c). To establish jurisdiction and obtain a hearing on the merits, an appellant is required to make nonfrivolous allegations that: (1) he was absent from his position due to a compensable injury; (2) he recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the agency’s denial was arbitrary and capricious. Clark, 123 M.S.P.R. 466, ¶ 5. The administrative judge applied this standard and found that the appellant failed to present nonfrivolous allegations pertaining to the third element—that the agency denied his request for restoration. 0159 ID at 9-11. Among other things,4 she explained that the agency offered him a limited-duty position at the time, and OWCP deemed the offer suitable, notwithstanding the appellant’s decision to reject the offer. Id.; see Bynum v. U.S. Postal Service , 112 M.S.P.R. 403, ¶ 23 (2009) (recognizing that decisions on the suitability of an offered position are within the exclusive domain of OWCP, and it is that agency, not the employing agency and not the Board, which possesses the requisite expertise to evaluate whether a position is suitable in light of that employee’s particular medical condition), aff’d, 382 F. App’x 934 (Fed. Cir. 2010). On review, the appellant seems to argue that, although the agency did offer him this limited-duty position in December 2019, the offer was improper because it was not related to his past position and it was a meaningless “make work” position. 0159 PFR File, Tab 1 at 8-9, 21, 30. However, unlike a fully recovered employee, a partially recovered employee has no right to be restored to his former position or an equivalent one. Hall v. Department of the Navy , 94 M.S.P.R. 262, ¶ 21 (2003). Plus, the appellant’s assertion that the limited-duty position was a “make work” job is both conclusory and of no apparent relevance to his jurisdictional burden. See generally Chen v. U.S. Postal Service , 114 M.S.P.R. 292, ¶ 10 (2010) (stating that “it is axiomatic that an agency must determine what work is necessary and available to accomplish its mission”). The appellant also seems to assert that the administrative judge should have applied the standards for a fully recovered individual to this claim, rather than the standards for a partially recovered individual. 0159 PFR File, Tab 1 at 7. Yet we found no substantive allegation that the appellant fully recovered from his compensable injuries by the time of the agency’s December 2019 limited duty offer. See 5 C.F.R. § 353.102 (providing that “[ f]ully recovered means compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he or she left or an equivalent one”). To the contrary, throughout the remainder of his petition, the appellant repeatedly5 describes himself as having “permanent” restrictions. E.g., 0159 PFR File, Tab 1 at 8, 11, 20. To the extent that any of the other arguments in the appellant’s petition for review implicate this restoration claim, they are similarly unavailing. The appellant failed to present the requisite nonfrivolous allegations regarding at least one element of his jurisdictional burden concerning the events of December 2019 —that the agency denied his request for restoration. Instead, the record unambiguously shows that the agency offered the appellant a limited-duty position in December 2019, 0159 IAF, Tab 9 at 9, Tab 11 at 41, which the OWCP found suitable, 0159 IAF, Tab 7 at 32, but the appellant rejected the offer for reasons that included his own determination that the work was “demeaning,” 0159 IAF, Tab 9 at 9, Tab 11 at 41. Therefore, the administrative judge properly dismissed this restoration claim for lack of jurisdiction. See Ballesteros v. U.S. Postal Service, 88 M.S.P.R. 428, ¶¶ 7-12 (2001) (finding that the agency did not deny the appellant restoration when it made a valid restoration job offer and the appellant rejected it). The appellant failed to establish jurisdiction over his claim that the agency improperly denied him restoration as a fully recovered individual in July 2020. Like his petition for review, the appellant’s initial pleadings contained extensive allegations, many of which pertain to other appeals or irrelevant matters. 0159 IAF, Tabs 1, 6-7, 10-11. During a prehearing conference, the administrative judge attempted to clarify the limited issues to be addressed in this appeal. In her prehearing conference summary, she first recognized the December 2019 restoration claim discussed above. 0159 IAF, Tab 12 at 1. Next, the administrative judge indicated that the appellant was also alleging that the agency improperly denied him restoration as a fully recovered individual in July 2020. However, the initial decision contains no mention of this latter claim. 0159 ID. To the extent that the appellant did intend to pursue this second6 restoration claim—that the agency improperly denied him restoration as a fully recovered individual in July 2020—we modify the initial decision as follows. Specific to his July 2020 restoration claim, the prehearing conference summary noted that the appellant had referred to evidence that was not in the record. 0159 IAF, Tab 12 at 1. Therefore, the administrative judge ordered the appellant to submit that evidence—a “July 2020 OWCP letter” and “any response from the agency to the purported July 2020 request for restoration.” Id. at 2-3. More broadly, she instructed the appellant to meet his jurisdictional burden. Id. Among other things, the administrative judge explained that his jurisdictional burden for this claim included nonfrivolous allegations that the appellant had fully recovered, had requested to return to work, and the agency had failed to meet its obligations regarding the same. 0159 IAF, Tab 3 at 3-4; see Young v. U.S. Postal Service , 115 M.S.P.R. 424, ¶ 12 (2010) (describing these as among the jurisdictional requirements for this type of restoration claim). The administrative judge separately ordered the appellant to present arguments and evidence regarding the timeliness of his appeal. 0159 IAF, Tab 13. Although the appellant submitted responses, his arguments stray from the limited issues of this restoration appeal extensively, and they are difficult to understand. 0159 IAF, Tabs 14-15. In addition, the only evidence he submitted is dated between November 2008 and February 2020. 0159 IAF, Tab 14 at 27-50. None is the evidence specifically requested by the administrative judge, regarding his alleged recovery or denied restoration in July 2020. For that reason, the agency argued that the administrative judge should dismiss the July 2020 claim. 0159 IAF, Tab 16 at 6-7. The appellant then submitted additional pleadings with additional evidence. 0159 IAF, Tabs 17-18. But these additional pleadings were untimely. Compare 0159 IAF, Tab 12 at 3 (setting a deadline of February 22, 2021, for the appellant to submit his response regarding jurisdiction), Tab 13 at 4 (setting a deadline of February 26, 2021, for the appellant to submit his response regarding the7 timeliness of his appeal), with 0159 IAF, Tabs 17-18 (appellant’s supplemental responses regarding jurisdiction and timeliness, dated March 1 and March 7, 2021). Therefore, they need not be considered. See 5 C.F.R. § 1201.43(c) (providing that an administrative judge may refuse to consider any motion or other pleading that is not filed in a timely fashion). Even if we were to consider the appellant’s belated filings, we would not find that the appellant presented the requisite nonfrivolous allegations that the agency improperly denied him restoration as a fully recovered individual in or around July 2020. Among other things, the appellant failed to present any nonfrivolous allegation that he was “fully recovered” at that time, as the term is defined for purposes of restoration. 5 C.F.R. § 353.102. To the contrary, his belated evidence included updated medical documentation from July 2020, indicating that he has permanent restrictions from his right arm injury, along with an OWCP document from December 2020, acknowledging a separate compensable back impairment. 0159 IAF, Tab 17 at 16, Tab 18 at 62, 65, 84-86. Without further explanation, the degree to which these ongoing impairments and limitations might impact the appellant’s ability to work his Maintenance Technician position or any other is not apparent. Additionally, it is not apparent that the appellant requested, and the agency denied, any request for restoration during this period. Evidence the appellant submitted does include April, May, and June 2020 letters addressed to various offices within the Postal Service, OPM, and OWCP. 0159 IAF, Tab 18 at 66-77. But those letters generally seem to assert past improprieties among all parties involved—the Postal Service, OPM, and OWCP. Id. We recognize that these lengthy and convoluted letters do include statements that he wanted the agency to “return [him] to work after recovery from on-the-job-injury with full back pay from the unwarranted personnel action – disability retirement,” and he “elect[s] to stay on OWCP and limited duty that the agency offered [him] December 9, 2019.” Id. at 67, 71. However, when viewed in their entirety, the letters appear to be8 arguments about the propriety of his separation in December 2019, not an unambiguous new request for restoration. Plus, none is dated July 2020, when the appellant has alleged that he was denied restoration. In sum, to the extent that the appellant intended to pursue his claim that the agency improperly denied him restoration as a fully recovered individual in or around July 2020, we modify the initial decision to find that he failed to meet his jurisdictional burden of presenting nonfrivolous allegations of the same. The appellant’s petition for review contains no substantive argument or evidence that would support a different conclusion—none pertaining to his recovery status at that time, and none pertaining to him submitting a request to the agency at that time, asking for restoration. 0159 PFR File, Tab 1. We recall that the appellant’s jurisdictional burden was to simply present nonfrivolous allegations. However, the appellant’s pleadings are filled with cursory, convoluted, and contradictory claims that do not satisfy that standard. The appellant’s remaining arguments on review are unavailing. We note that the appellant is pro se. For that reason, we have construed his pleadings liberally. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 7 (2010). However, as alluded to above, many of the appellant’s arguments do not pertain to the relevant issues at hand. To illustrate with an example, the appellant’s petition contains arguments about “nexus, charges, and penalties.” 0159 PFR File, Tab 1 at 7. But those are issues relevant to an adverse action appeal, not this restoration appeal. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 18 (2013). The appellant also presents arguments or assertions about issues from his prior appeals, which are not before us at this time. E.g., 0159 PFR File, Tab 1 at 17 (referencing McDermott v. U.S. Postal Service , MSPB Docket No. SF-0752-13-0633-I-1). In another example, the appellant repeatedly argues that certain officials within the agency or OWCP have violated criminal laws by providing false statements in connection with his OWCP claims and retirement. E.g., id. at 10-13. However,9 the Board does not have jurisdiction over all matters regarding a Federal employee that are allegedly unfair or incorrect; rather, the Board’s jurisdiction is limited to matters over which it has been given jurisdiction by statute or regulation. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995). We next note that the appellant presents general assertions that the administrative judge was biased. 0159 PFR File, Tab 1 at 21, 23, 30. He does not, however, present a substantive and persuasive explanation of the same. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (recognizing that a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators in making a claim of bias or prejudice against an administrative judge). For all these reasons, the appellant has failed to establish jurisdiction over his restoration appeal. NOTICE OF APPEAL RIGHTS2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 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.10 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 11 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 12 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 13 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	McDermott_LanceSF-0353-21-0159-I-1__Final_Order.pdf	2024-04-17	LANCE MCDERMOTT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-21-0159-I-1, April 17, 2024	SF-0353-21-0159-I-1	NP
1,746	https://www.mspb.gov/decisions/nonprecedential/Luong_Michael_V_SF-0752-18-0242-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL V. LUONG, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0752-18-0242-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Linda A. Albers , Laguna Hills, California, for the appellant. Dynelle M. Tadlock , San Francisco, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant argues that the administrative judge made erroneous findings and rulings and otherwise abused her discretion in upholding the agency action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 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	Luong_Michael_V_SF-0752-18-0242-I-1__Final_Order.pdf	2024-04-17	MICHAEL V. LUONG v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-18-0242-I-1, April 17, 2024	SF-0752-18-0242-I-1	NP
1,747	https://www.mspb.gov/decisions/nonprecedential/Kessock_Albert_P_PH-0752-19-0297-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALBERT PETER KESSOCK, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER PH-0752-19-0297-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan Edmunds , Esquire, and Brittany Honeycutt , Esquire, Ponte Vedra Beach, Florida, for the appellant. Gina M. MacNeill , Esquire, and David Mapp , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action removing him from his City Carrier position based on the charge of improper conduct. 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). In the notice of proposed removal, the agency stated that the proposed action was based on a March 21, 2018 incident in which the appellant mishandled a customer’s package. Initial Appeal File (IAF), Tab 5 at 28. On review, the appellant argues that he was not on the route or location alleged by the agency on March 21, 2018. Petition for Review (PFR) File, Tab 1 at 4. It is clear from the record that the proposal notice incorrectly referred to March 21, 2018 as the date of the incident when it in fact occurred on March 21, 2019. Despite the typographical error, it is also clear from the record that the appellant understood that he was charged with misconduct occurring on March 21, 2019. For example, the appellant was provided with a March 22, 2019 letter stating that he was being placed in an off-duty status for an incident occurring on March 21, 2019, and the notes from a March 29, 2019 predisciplinary interview reflect that the appellant was questioned about an incident occurring on March 21, 2019, and he admitted that he was assigned to2 the delivery route alleged in the proposal notice on March 21, 2019.2 IAF, Tab 5 at 42, 50. Thus, any error in the proposal notice did not harm the appellant.3 See Palmer v. U.S. Postal Service , 36 M.S.P.R. 263, 266-67 (1988) (finding that an error referring to the incorrect date in the proposal notice was not harmful when the appellant knew what charge he had to defend against); Madison v. Veterans Administration , 20 M.S.P.R. 234, 235 (1984) (same). Regarding the appellant’s argument that other Postal Service employees have not been removed for worse misconduct, PFR File, Tab 1 at 5, we note that the appellant must first point to specific employees who engaged in the same or similar misconduct and received a more lenient penalty, see Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673, ¶ 36 (2011). The appellant has not identified comparator employees, and thus has not provided a basis to disturb the administrative judge’s finding that removal was a reasonable penalty. Finally, the appellant asserts that he could not afford to retain an attorney and that he has no legal knowledge.4 PFR File, Tab 1 at 3. The Board has held that an appellant cannot avoid the consequences of his choice to represent himself even if he appears pro se because he cannot afford an attorney. Embry v. Department of Transportation , 13 M.S.P.R. 505, 507 (1982). Further, there is no statutory or regulatory requirement that an appellant be provided with pro bono 2 Additionally, when the appellant grieved the proposed removal, his union representative noted that the agency cited the incorrect date in the proposal notice and that the incident set forth in the improper conduct charge actually took place on March 21, 2019. IAF, Tab 12 at 32. 3 The administrative judge also stated that the incident occurred on March 21, 2018, although in one instance he was quoting the agency’s proposal notice. IAF, Tab 19, Initial Decision at 2, 4. The appellant has not shown how the administrative judge’s misstatement provides a basis to disturb the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984 ) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 4 To the extent the appellant is alleging that the lack of counsel denied him due process, he has not explained his claim. PFR File, Tab 1 at 3. Moreover, he did not identify the claim as an affirmative defense before the administrative judge during the prehearing conference. IAF, Tab 17 at 1.3 counsel. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 7 (2010). Significantly, in the prehearing conference, the administrative judge advised the appellant as to what he would be required to prove. IAF, Tab 17 at 1. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Kessock_Albert_P_PH-0752-19-0297-I-1__Final_Order.pdf	2024-04-17	ALBERT PETER KESSOCK v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-19-0297-I-1, April 17, 2024	PH-0752-19-0297-I-1	NP
1,748	https://www.mspb.gov/decisions/nonprecedential/Davis_Jimmy_I_NY-0752-22-0089-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JIMMY I. DAVIS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER NY-0752-22-0089-I-1 DATE: April 17, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jimmy I. Davis , Newark, New Jersey, pro se. Krista M. Irons , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s chapter 75 removal action. For the reasons set forth herein, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the matter to the New York Field Office for further adjudication. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). DISCUSSION OF ARGUMENTS AND EVIDENCE ON REVIEW The appellant challenges the administrative judge’s conclusions that (1) the agency proved its charge of “Violation of the Zero Tolerance Policy (Physical Altercation with a Co-worker on the Workroom Floor)” and (2) he failed to prove any of his affirmative defenses. Petition for Review (PFR) File, Tab 1 at 5, Tab 4 at 3; Initial Appeal File (IAF), Tab 6 at 10. The appellant also asserts that the penalty of removal was unreasonable under the circumstances and that the administrative judge failed to consider mitigating factors. PFR File, Tab 1 at 6. 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 legal reasoning, as well as the authorities on which that reasoning rests. Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980); see 5 C.F.R. § 1201.111(b) (setting forth the regulatory requirements for initial decisions). Here, we find that the initial decision did not comply with the requirements of Spithaler. For instance, the initial decision contained minimal discussion of witness testimony; instead, the administrative judge relied largely on unsworn written witness statements, reasoning that “all of [these statements indicated that] the appellant participate[d] in [a physical] altercation.” IAF, Tab 38, Initial Decision at 4 (citing IAF, Tab 6 at 14-20). These cited statements, however, provided very different accounts of the events underlying the agency’s charge; indeed, one statement indicated that the appellant had been the innocent victim of a physical assault, IAF, Tab 6 at 14, and another statement indicated that the appellant and the other employee had simply “collide[d],” id. at 17. Given the conflicts in these statements, the administrative judge erred in denying certain witnesses in an Order and Summary of Prehearing Conference based upon a finding that the testimony of such witnesses would be “duplicative.” IAF Tab 23 at 3; see IAF Tab 21 (agency’s initial witness list). Accordingly, we vacate the initial decision and remand the matter for a new adjudication.2 When, as here, an appeal involves a dispute as to genuine issues of material fact, an appellant has a right to a hearing at which the administrative judge may observe the testimony of witnesses either in person or via videoconference. See Robertson v. Department of Transportation , 113 M.S.P.R. 16, ¶ 11 (2009). On remand, the administrative judge should inform the appellant of his right to an in-person or videoconference hearing and should hold a telephonic hearing only if the appellant requests one. See Koehler v. Department of the Air Force , 99 M.S.P.R. 82, ¶ 7 (2005) (explaining that an administrative judge may not order a telephonic hearing over an appellant’s objection). The appellant contends that the administrative judge was rude, biased, and exhibited egregious behavior during the adjudication of his appeal. PFR File, Tab 1 at 5-6. To support this contention, he provides a copy of a May 18, 2022 letter sent to the appellant by the Chief Administrative Judge of the Northeastern Regional Office and the New York Field Office acknowledging receipt of a complaint filed by the appellant regarding the administrative judge. Id. at 8; IAF, Tab 22 at 3. In this letter, the Chief Administrative Judge indicates, among other things, that he is “sorry that [the appellant feels that he was] treated with disrespect during [a] prehearing teleconference.” PFR File, Tab 1 at 8. The record does not support a finding of bias on the part of the administrative judge, nor do we find any basis for recusal in this matter. See Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000) (explaining that the presumption of honesty and integrity that accompanies all administrative adjudicators can be overcome only by a substantial showing of personal bias). Nevertheless, we exercise our discretion under the particular circumstances of this case to reassign this matter to a new administrative judge for a new adjudication.2 See Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 20 (2002) (reassigning an appeal 2 Further, because sufficient credibility determinations were not made in the first instance and we have ordered that a different administrative judge be assigned to this matter, a hearing de novo is required. See Muzzipapa v. Department of Veterans Affairs, 53 M.S.P.R. 53, 61 n.3 (1992). 3 to a new administrative judge on remand, recognizing that, although there was no showing of bias or impropriety, friction between the administrative judge and the appellants had developed throughout the adjudication of the matter). ORDER For the reasons discussed above, we vacate the initial decision and remand this case to a different administrative judge in the New York Field Office for a new adjudication in accordance with this Remand Order. On remand, the administrative judge assigned to the matter shall provide the parties with the opportunity to provide additional evidence and argument to support their respective positions, hold a hearing de novo, and issue a new initial decision on the merits of this appeal. The administrative judge shall also provide the appellant with proper notice of his burden of proof and the requirements to prove his affirmative defenses. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.4	Davis_Jimmy_I_NY-0752-22-0089-I-1__Remand_Order.pdf	2024-04-17	JIMMY I. DAVIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-22-0089-I-1, April 17, 2024	NY-0752-22-0089-I-1	NP
1,749	https://www.mspb.gov/decisions/nonprecedential/Spyropoulos_PhillipNY-0752-17-0121-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PHILLIP SPYROPOULOS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER NY-0752-17-0121-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert Glazer , Esquire, and Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant. Vernon Norwood , Esquire, New York, New York, for the agency. John Kelly , Esquire, and David B. Myers , 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 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. Except as expressly MODIFIED to (1) VACATE the administrative judge’s finding that the agency proved specification 4 under its lack of candor charge; (2) incorporate the correct standards for the appellant’s claims of disparate treatment disability discrimination and retaliation for requesting reasonable accommodation; (3) VACATE the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have removed the appellant in the absence of his alleged protected disclosures; and (4) supplement the administrative judge’s analysis on the appellant’s claim of disparate penalties, we AFFIRM the initial decision. BACKGROUND The appellant was a GS-12 Attorney Advisor with the agency’s Office of Disability, Adjudication, and Review in Newark, New Jersey. Initial Appeal File (IAF), Tab 8 at 16. On October 27, 2016, the agency proposed his removal based on the following four charges: (1) failure to safeguard Personally Identifiable Information (PII); (2) lack of candor; (3) misuse of position; and (4) misuse of Government property. IAF, Tab 7 at 5-16. By letter dated March 20, 2017, the2 deciding official sustained the proposed removal. Id. at 18-37. The appellant’s removal was effective that same date. IAF, Tab 8 at 16. The appellant subsequently filed a Board appeal challenging the basis for the removal action and raising numerous affirmative defenses. IAF, Tab 1 at 7; Tab 43 at 2-3. Following a hearing, the administrative judge issued an initial decision affirming the agency’s action. IAF, Tab 52, Initial Decision (ID). Regarding Charge 1, failure to safeguard PII, the administrative judge found that the agency proved 29 of the 32 specifications underlying this charge and, therefore, she sustained the charge.2 ID at 8-19. The administrative judge also sustained Charge 2, lack of candor, finding that the agency established all 4 supporting specifications. ID at 19-26. The administrative judge also sustained Charge 3, misuse of position, and Charge 4, misuse of Government property, finding that the agency established the 1 specification underlying the former charge and both specifications underlying the latter charge. ID at 27-33. As to the appellant’s affirmative defenses, the administrative judge found that he failed to establish his claims of harmful procedural error, due process violation, disability discrimination based on failure to accommodate and disparate treatment, retaliation for requesting reasonable accommodation, retaliation for filing grievances, and whistleblower reprisal.3 ID at 33-61. Lastly, the 2 While the administrative judge noted at the end of her analysis of Charge 1 that she was sustaining 28 of the 32 specifications, ID at 19, this is a typographical error. Specifically, the administrative judge found that the agency failed to sustain only 3 of the 32 specifications underlying this charge and noted earlier in her analysis that the agency established 29 of the specifications under this charge. ID at 17-18. 3 In considering the appellant’s allegation of reprisal for filing grievances, the administrative judge applied the general reprisal standard. ID at 46-47. However, the statutory changes made as part of the Whistleblower Protection Enhancement Act of 2012 (WPEA) significantly narrowed the scope of cases to which this standard applies. See Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 15 & n.7 (2015). Specifically, the general reprisal standard is inapplicable to claims that are subject to the burden-shifting framework set forth in 5 U.S.C. § 1221(e), such as a reprisal claim under 5 U.S.C. § 2302(b)(9)(A)(i), which makes it a prohibited personnel practice “to take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of the exercise of any appeal, complaint,3 administrative judge found that the agency established the nexus requirement and that the penalty of removal was reasonable under the circumstances. ID at 61-66. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 5. On review, he contends that the agency failed to prove that the emails at issue under Charge 1 contained PII, that the administrative judge failed to apply the proper legal standard to Charge 2, that the administrative judge did not apply the proper factors in conducting her penalty analysis, and that the administrative judge erred in finding that the appellant did not establish his affirmative defense of whistleblower reprisal.4 PFR File, Tab 5 at 9-28. The agency has filed a response in opposition to the appellant’s petition. PFR File, Tab 7. DISCUSSION OF ARGUMENTS ON REVIEW The appellant has failed to provide a basis for disturbing the administrative judge’s findings regarding Charge 1, failure to safeguard PII. Under its charge of failure to safeguard PII, the agency charged that, on 32 separate instances, the appellant sent emails containing PII of claimants who or grievance right granted by any law, rule, or regulation, with regard to remedying a violation” of 5 U.S.C. § 2302(b)(8). Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 10 (2016). To the extent the appellant was attempting to assert a claim of reprisal under section 2302(b)(9)(A)(i), any such claim lacks merit because the appellant has not alleged that his grievances involved remedying a violation of section 2302(b)(8). Thus, the administrative judge applied the proper standard to the appellant’s claim of retaliation for having filed grievances. 4 In his petition for review, the appellant does not challenge the administrative judge’s findings regarding Charge 3, misuse of position, Charge 4, misuse of Government property, his affirmative defenses other than his claim of whistleblower reprisal, or the nexus requirement. We discern no basis for disturbing the administrative judge’s well-reasoned findings that the agency proved Charges 3 and 4 and that it established nexus. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). Moreover, we agree with the administrative judge’s findings that the appellant failed to establish harmful procedural error or a due process violation. See id. While we similarly agree that the appellant failed to establish his remaining affirmative defenses, as discussed below, we have modified the administrative judge’s analysis on these claims.4 had applied for Social Security disability benefits to non-work related email addresses. IAF, Tab 7 at 5-8. The administrative judge noted that, effective May 2010, the agency adopted the definition of PII as found in Chapter 15, Section 01.08 of the Administrative Instructions Manual System (AIMS), which defined PII as the following: any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. ID at 11-12; IAF, Tab 7 at 49. The administrative judge found that the agency’s witnesses—the Regional Chief Administrative Law Judge (Regional Chief ALJ), the appellant’s first-line supervisor, and the deciding official—defined PII in a manner consistent with this definition. ID at 12. The administrative judge also found that the AIMS prohibits employees from emailing PII to or from any non-secure personal computing devices or from emailing PII using any non-secure email account. Id.; IAF, Tab 7 at 43. On review, the appellant contends that the administrative judge improperly considered the testimony of the agency’s witnesses in determining whether the emails specified under the charge contained PII. PFR File, Tab 5 at 10. The appellant contends that the administrative judge weighed the credibility of the agency’s witnesses’ testimony against that of the appellant in determining whether the emails contained PII, and that this constituted error because any such determination should be based on the application of the agency’s relevant policy and not on the credibility of witnesses. Id. at 11, 15. In addition, the appellant argues that the administrative judge should not have determined that the deciding official was a credible witness. Id. at 11-14. The appellant also argues that the administrative judge erroneously concluded that most of the emails at issue contained PII. Id. at 15-16.5 Contrary to the appellant’s contentions on review, the administrative judge properly considered and applied the definition of PII as set forth in the AIMS. Pursuant to this policy, PII is defined, inter alia, as “information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.” IAF, Tab 7 at 49. The administrative judge considered the testimony of the appellant’s first-line supervisor and the deciding official to ascertain what type of medical history and information is “linkable” to a claimant. ID at 15-16. The administrative judge then reviewed each specification underlying the charge and found that the agency established 29 of the 32 specifications. ID at 17-18. In doing so, the administrative judge noted that the agency witnesses testified that all of the emails at issue contained PII, but the administrative judge disagreed with these witnesses with regard to three specifications. ID at 15, 17-18. Thus, while the administrative judge considered the agency’s witnesses’ testimony in an effort to interpret and apply the definition of PII under the AIMS, she independently reviewed and applied the definition to each instance of charged misconduct. ID at 17-18. The appellant’s assertion that the administrative judge erred in finding the deciding official to be credible does not provide a basis for review. In making this credibility determination, the administrative judge properly considered relevant factors including the consistency of the deciding official’s testimony with that of the appellant’s supervisor. ID at 15, 17; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Furthermore, the administrative judge’s credibility findings were implicitly based on demeanor, and are therefore entitled to deference. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must give deference to an administrative judge’s findings regarding credibility when those findings are based on the demeanor of the testifying witnesses); Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009) (when an administrative judge has heard live testimony, her credibility determinations must be deemed to be implicitly based upon the6 demeanor of witnesses). As to the appellant’s assertion that the administrative judge erred in finding that most of the emails at issue in the charge contained PII, this assertion constitutes mere disagreement with the administrative judge’s well-reasoned findings regarding these emails and does not provide a basis for review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). Thus, we discern no reason for disturbing the administrative judge’s finding that the agency proved its charge of failure to safeguard PII. The administrative judge correctly sustained Charge 2, lack of candor. The agency provided the following four specifications in support of this charge: Specification No. 1 : On April 6, 2015, you reported that you were using your personal computer to perform your agency work. When I informed you that this is a PII violation, you stated, “[t]he emails contain only raw narratives of the medical evidence with no names, [social security numbers] or other PII.” An audit of your [agency] email account, however, revealed that you sent numerous emails that contained claimants’ names, social security numbers, medical information, and/or other PII outside of [agency] custody. Specification No. 2 : In an email dated April 9, 2015, you stated, “I have never included PII in any emails, on my personal laptop or in any other electronic communications outside of my work-issued laptop.” However, as detailed above, an audit of your email account revealed that you sent numerous emails containing PII outside of [agency] custody. Specification No. 3 : On April 6, 2015 and on April 9, 2015, I advised you that you may not email agency work using your personal laptop. On May 5, 2015, you were questioned regarding the emails that you sent outside of [agency] custody, which contained claimant PII. You stated that you do not send these emails anymore because you were told not to. However, as specified above, from April 6,7 2015 through May 5, 2015, you sent at least nine emails containing claimant information outside of [agency] custody. Specification No. 4 : On July 27, 2015, you denied that you ever sent any [agency] work-related materials between your personal email account(s) and any email address, other than your [agency] email address. An audit of your [agency] email account, however, revealed that you have sent PII outside of [agency] custody to multiple email addresses . . . . IAF, Tab 7 at 8-9. An agency alleging lack of candor must prove the following elements: (1) that the employee gave incorrect or incomplete information; and (2) that he did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016). Here, the appellant does not dispute on review that the agency established prong one of this test; specifically, that he provided incorrect information as set forth in each of the four specifications underlying the lack of candor charge. Rather, the appellant argues that the administrative judge failed to make findings regarding the second element of this test. PFR File, Tab 1 at 17. As discussed below, we find that the administrative judge made findings on this element with regard to specifications 1-3. However, we agree that the administrative judge did not make findings on this element with regard to specification 4, and we modify the initial decision accordingly. Regarding specifications 1 and 2, in which the agency charged the appellant with making incorrect statements concerning whether he had inappropriately sent emails containing PII, the administrative judge considered the appellant’s testimony that he was not even aware that he had sent PII between his personal and work email addresses. ID at 24. However, the administrative judge found the appellant’s version of events to be highly unlikely in light of the fact that he was working from home regularly and the number of emails at issue was close to 30. Id. The administrative judge considered the relevant factors, including the consistency of the testimony with other evidence, in making this credibility determination. See Hillen, 35 M.S.P.R. at 458. Thus, contrary to the8 appellant’s assertions on review, the administrative judge did make findings on whether the appellant was aware that he provided incorrect information when he stated that he had not sent PII between his work and personal email addresses. The administrative judge also considered the appellant’s testimony regarding specification 3, which concerned the appellant’s denial that he sent emails between his personal and work email addresses following his supervisor’s April 2015 warnings. ID at 24-25. Specifically, the administrative judge considered the appellant’s explanation that he actually meant that, although he continued to send such emails after his supervisor’s warnings, those subsequent emails constituted “evidence of retaliation” from his work email address to his personal email address. ID at 24. The administrative judge found this version of events to be highly improbable because three of these emails had nothing to do with the alleged preservation of evidence. ID at 25. This determination belies the appellant’s assertion that the administrative judge failed to make a finding on the knowledge element regarding specification 3. As for specification 4, in which the agency alleged that the appellant incorrectly denied having sent work-related emails between his personal email account and any other email address other than his work email address, we agree that the administrative judge did not make a finding on whether the appellant knowingly provided incorrect information. Thus, we vacate the administrative judge’s determination that the agency proved specification 4 under its lack of candor charge. However, we need not remand this matter to the New York Field Office or make a finding on the knowledge element concerning this specification. In particular, because the agency proved at least one of the specifications underlying its lack of candor charge, the charge is still sustained. Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that proof of one or more the supporting specifications is sufficient to sustain the charge). Accordingly, the administrative judge’s failure to make a finding on the knowledge element concerning specification 4 does not provide a basis for9 reversing the initial decision.5 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 administrative judge properly found that the appellant failed to establish his affirmative defense of whistleblower reprisal. 6 In an adverse action in which the appellant has raised a claim of whistleblower reprisal, once the agency proves its adverse action case, the appellant must show by preponderant evidence that he made a disclosure protected under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing factor in the agency’s personnel action. Simmons v. Department of the Air Force , 99 M.S.P.R. 28, ¶ 22 (2005), aff’d sub nom. Gebhardt v. Department of the Air Force, 186 F. App’x 996 (Fed. Cir. 2006).7 A protected disclosure is a disclosure of information that the appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A). Only if the appellant establishes a prima facie case of reprisal for whistleblowing does the burden of persuasion shift to the agency to 5 We have considered whether our decision to not sustain this specification affects the administrative judge’s determinations regarding the penalty, and we find that it does not. See Dunn v. Department of the Air Force , 96 M.S.P.R. 166, ¶ 10 (2004) (stating that, when the Board sustains the agency’s charges but not all of the specifications of those charges, it will review the agency-imposed penalty to determine whether it is within the parameters of reasonableness), aff’d, 139 F. App’x 280 (Fed. Cir. 2005). 6 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 in this appeal would be the same under both pre- and post-NDAA law. 7 The 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).10 show by clear and convincing evidence that it would have taken the same personnel action absent any protected activity. Simmons, 99 M.S.P.R. 28, ¶ 23. Here, the administrative judge found that the appellant raised five allegedly protected disclosures. ID at 49-54. Disclosure 1 pertained to a letter that the appellant drafted in June 2007 to the Acting Regional Chief ALJ in which the appellant complained about a supervisor and the management of the office. ID at 49-50; IAF, Tab 35 at 57-59. Disclosure 2 related to November 2014 emails the appellant sent to an ALJ concerning an issue in one of that ALJ’s Social Security decisions; specifically, the appellant expressed concern about a statement in the decision linking a claimant’s depression to his criminal record. ID at 51-52; IAF, Tab 36 at 45, 51 -52. Disclosure 3 pertained to a May 2015 email in which the appellant forwarded these November 2014 emails to his first-line supervisor. ID at 53; IAF, Tab 36 at 51. Disclosure 4 related to an April 2015 email the appellant sent to his first-line supervisor expressing concerns with instructions the same ALJ had given the appellant regarding drafting a Social Security decision and questioning whether these instructions raised “ethics concerns.” ID at 53; IAF, Tab 37 at 4. Disclosure 5 concerned a May 2015 email the appellant sent to his supervisor in which he again expressed concern with the same ALJ’s instructions for writing Social Security decisions and stated that the ALJ had a “pattern of bias” regarding granting benefits. ID at 53-54; IAF, Tab 37 at 6. The administrative judge found that disclosures 2-5, in which the appellant expressed concern with the ALJ’s Social Security decisions, constituted disagreements with the ALJ’s conclusions, over which the ALJ had discretion. ID at 54-58; see Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015) (determining that, even under the expanded protections afforded to whistleblowers under the Whistleblower Enhancement Act of 2012, general philosophical or policy disagreements with agency decisions or actions are not protected unless they separately constitute a protected disclosure of one of the11 categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)). As for disclosure 1, the administrative judge determined that the appellant failed to show that this disclosure evidenced gross mismanagement because an agency’s ability to accomplish its mission is not significantly affected by the fact that a supervisor is disliked by his subordinates. ID at 58; see Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (defining gross mismanagement as a management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission). On review, the appellant alleges that the administrative judge erred in finding that these disclosures were not protected, but he does not provide argument or evidence in support of this contention. PFR File, Tab 1 at 27. The appellant’s assertion constitutes mere disagreement with the administrative judge’s well-reasoned finding that the appellant did not make protected disclosures and, accordingly, does not provide a basis for review. See Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359. Although the administrative judge found that the appellant failed to establish that he made protected disclosures under 5 U.S.C § 2302(b)(8), she made alternative findings that the agency established by clear and convincing evidence that it would have removed the appellant even in the absence of his protected disclosures. ID at 61-62. The appellant contends on review that the agency failed to meet this burden. PFR File, Tab 1 at 27. We need not, however, reach this issue. Because the administrative judge correctly determined that the appellant failed to establish that he made protected disclosures, the administrative judge erred in making these alternative findings, and we vacate this portion of the initial decision. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016) (stating that the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case).12 The administrative judge properly found that the appellant failed to meet his burden of proof on his disparate treatment disability discrimination claim. Following the issuance of the initial decision, the Board clarified that a Federal employee proves disparate treatment disability discrimination by establishing that his disability was a motivating factor in the challenged action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 40. The administrative judge determined that the record was devoid of any evidence indicating that the agency treated the appellant disparately from other employees who did not suffer from the appellant’s alleged disability—carpal tunnel syndrome.8 ID at 44. Further, the administrative judge found that there was no evidence that the agency had failed to upload onto the appellant’s work laptop dictation software, which the appellant alleged he needed due to his carpal tunnel syndrome. ID at 16, 44. The administrative judge noted that, in fact, the appellant admitted that the agency had loaded dictation software onto both his work desktop and government-issued laptop in 2013. ID at 44. The appellant’s petition for review contains no argument to the contrary. We therefore adopt the administrative judge’s factual findings and conclude that the appellant failed to show that any disability was a motivating factor in the agency’s decision to remove him. Pridgen, 2022 MSPB 31, ¶ 24 (stating that comparator evidence is one method by which an appellant may prove discrimination).9 The appellant did not prove that his protected activity of requesting reasonable accommodation was a “but for” cause of his removal. In analyzing the appellant’s allegation of retaliation for requesting reasonable accommodation, the administrative judge set forth the legal standard 8 The administrative judge found that the appellant failed to show that he was an individual with a disability. ID at 41, 44. 9 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 33.13 that applies to a claim of retaliation for engaging in protected equal employment activities. ID at 44-45. Specifically, relying on the Board’s decision in Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 36-37, 41 (2015), overruled in part by Pridgen , 2022 MSPB 31, ¶¶ 23-25, she found that Federal employees are protected against retaliation for the exercise of Title VII rights, and that a violation is established when the appellant shows that retaliation was a motivating factor in the contested personnel action. ID at 44. Asserting disability discrimination, including filing requests for reasonable accommodation, is an activity protected by the Rehabilitation Act, not Title VII.10 Pridgen, 2022 MSPB 31, ¶ 44. The anti-retaliation provision of the Americans with Disabilities Act of 1990, which is incorporated by reference in the Rehabilitation Act, prohibits discriminating against any individual “because such individual” has engaged in protected activity. 42 U.S.C. § 12203(a); Pridgen, 2022 MSPB 31, ¶ 44. An affirmative defense of retaliation for engaging in activity protected by the Rehabilitation Act is analyzed under the “but-for” causation standard, i.e., if the agency would not have taken the same action in the absence of the protected activity. Pridgen, 2022 MSPB 31, ¶¶ 44-47. Here, because the administrative judge found that the appellant failed to prove that any of his prior requests for reasonable accommodation were a motivating factor in his removal, we find that he cannot meet the higher “but-for” causation standard to prove retaliation for engaging in activity protected by the Rehabilitation Act. The administrative judge properly found that the penalty of removal is reasonable under the circumstances. When, as here, all of the agency’s charges are sustained, the Board will review the agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within the tolerable 10 The standards under the Americans with Disabilities Act of 1990 have been incorporated by reference into the Rehabilitation Act, and the Board applies them to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Pridgen, 2022 MSPB 31, ¶ 35; Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 n. 3 (2014).14 limits of reasonableness. Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 6 (2013); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981).11 The agency need not address all 12 factors, merely those that are relevant. Douglas, 5 M.S.P.R. at 306. The Board will modify or mitigate an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors or the penalty clearly exceeds the bounds of reasonableness. Davis, 120 M.S.P.R. 457, ¶ 6. The appellant contends on review that the administrative judge erred in determining that the deciding official adequately weighed the relevant Douglas factors. PFR File, Tab 5 at 18-28. Specifically, the appellant contends that the deciding official failed to appropriately consider the nature and seriousness of the offense because she did not consider that the misconduct was unintentional and that there were no negative consequences as a result of the appellant’s actions. Id. at 19-20. The appellant also argues that the deciding official failed to adequately consider his job position and his supervisor’s confidence in his ability to perform his job. Id. at 20, 22. In addition, he contends that the deciding official incorrectly considered his past disciplinary record as a “neutral factor but [that] it should have been a mitigating factor.” Id. at 21. The appellant further alleges that the administrative judge erred in finding that he did not establish his disparate penalties claim and failed to consider as a mitigating factor incidents that were occurring in his personal life at the time of the misconduct. Id. at 22-26. Contrary to the appellant’s allegations, the administrative judge scrutinized the penalty factors considered by the agency and correctly determined that the deciding official considered the nature and seriousness of the offense, the nature 11 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of 12 factors that are relevant in assessing the appropriate penalty for an act of misconduct. These so-called Douglas factors include the nature and seriousness of the offense, the appellant’s past disciplinary record, his past work record, his potential for rehabilitation, and mitigating circumstances surrounding the offense. Id. 15 of the appellant’s position, the appellant’s past disciplinary record, and the effect of the offense on his ability to perform his duties and his supervisor’s confidence in his job-related abilities. ID at 64-65; IAF, Tab 7 at 29-31. Regarding the seriousness of the misconduct, the administrative judge properly noted that the deciding official stated that the disclosure of PII exposes the public to severe risks, such as identify theft. ID at 64; IAF, Tab 7 at 29. As to the appellant’s argument that the misconduct was unintentional, the deciding official specifically considered this issue and found that the appellant “repeatedly and intentionally transmitted PII from [his agency] account to several different unsecured email addresses. . . .” IAF, Tab 7 at 29. In addition, concerning the appellant’s past disciplinary record, the deciding official noted that, on April 13, 2016, the appellant was reprimanded for working over his tour without approval or authority.12 Id. at 30. Thus, to the extent the deciding official did consider this as a neutral and not as a mitigating factor, the appellant has failed to show how any such consideration of this factor constituted error by the deciding official. Regarding the effect of the appellant’s misconduct on the appellant’s ability to do his job and his supervisor’s confidence in him, the administrative judge properly noted that the deciding official stated that the public entrusted the agency with safeguarding PII and that the appellant violated that trust. ID at 64; IAF, Tab 7 at 30. The deciding official noted that the appellant’s supervisor could no longer trust him “to handle private and confidential records with the necessary level of care.” IAF, Tab 7 at 30. As to the appellant’s allegation of disparate penalties, the Board has recently clarified that, in assessing such a claim, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. Proper comparators for disparate penalty purposes should be limited to those employees whose misconduct and/or 12 The notice of proposed removal also referenced this April 13, 2016 reprimand. IAF, Tab 7 at 12.16 other circumstances closely resemble those of the appellant, id., ¶ 13, and the Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately, id., ¶ 17. While Singh had not yet been issued when the administrative judge issued the initial decision, we find that she properly found that the appellant failed to establish his claim of disparate penalties. Consistent with Singh, the administrative judge found that the appellant did not identify any employee who had engaged in similar conduct and who was similarly situated to the appellant. ID at 65-66. The appellant argues on review that other employees engaged in more serious misconduct and were not removed but fails to provide a basis for disturbing the administrative judge’s finding that these employees were not proper comparators for disparate penalty purposes. PFR File, Tab 5 at 23-25. Based on the foregoing, we find that the appellant has failed to establish that the agency knowingly and unjustifiably treated employees differently, as required under Singh. Singh, 2022 MSPB 15, ¶ 14. Regarding the appellant’s contention that the administrative judge did not consider all of the incidents that were occurring in his personal life at the time of the misconduct, the 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. Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In light of the above, we agree with the administrative judge that the agency considered the appropriate Douglas factors, and we defer to the agency’s imposed penalty of removal. See Dunn v. Department of the Air Force , 96 M.S.P.R. 166, ¶¶ 2, 12-18 (2004) (determining that removal was reasonable when the employee engaged in conduct unbecoming and exhibited a lack of candor), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).17 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 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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.18 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any19 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).20 If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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. 21 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.22	Spyropoulos_PhillipNY-0752-17-0121-I-1__Final_Order.pdf	2024-04-17	PHILLIP SPYROPOULOS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. NY-0752-17-0121-I-1, April 17, 2024	NY-0752-17-0121-I-1	NP
1,750	https://www.mspb.gov/decisions/nonprecedential/Shaffer_Cindy_J_CH-1221-19-0057-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CINDY J. SHAFFER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-1221-19-0057-W-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. Carroll , Esquire, West Des Moines, Iowa, for the appellant. Pamela R. Saunders , Esquire, Minneapolis, Minnesota, 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). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). In her petition for review, the appellant submitted documents that do not appear to have been submitted below. Petition for Review (PFR) File, Tab 1 at 4, 8-18. The Board does not ordinarily consider evidence submitted for the 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). However, the Board may accept evidence presented for the first time on review, even if it was available below, when it implicates the Board’s jurisdiction and warrants an outcome different from that in the initial decision. See, e.g., Atkinson v. Department of State, 107 M.S.P.R. 136, ¶ 12 (2007) (accepting evidence submitted for the first time on review when it goes to the issue of jurisdiction in an IRA appeal). In the initial decision, the administrative judge dismissed the appeal for lack of jurisdiction based on the appellant’s failure to make a nonfrivolous allegation of a protected disclosure. Initial Appeal File, Tab 10, Initial Decision at 7-12. The documents submitted with the appellant’s petition for review do not concern an allegation of a protected disclosure or protected activity that would address the issue of jurisdiction. PFR File, Tab 1 at 8-18. Rather, they are related to the appellant’s 2015 promotion. Id. Thus, the appellant has failed to2 show that these documents would result in a different outcome than the one reached in the initial decision, and therefore, do not provide a basis to disturb the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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	Shaffer_Cindy_J_CH-1221-19-0057-W-1__Final_Order.pdf	2024-04-17	CINDY J. SHAFFER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0057-W-1, April 17, 2024	CH-1221-19-0057-W-1	NP
1,751	https://www.mspb.gov/decisions/nonprecedential/Nguyen_Vinh_K_SF-4324-19-0603-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VINH K. NGUYEN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-4324-19-0603-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Vinh K. Nguyen , San Jose, California, pro se. Vanessa Lichtenberger , 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 denied his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). On petition for review, the appellant alleges the following: (1) the agency discriminated against him as a result of his military service; (2) the agency engaged in disability discrimination; (3) the administrative judge exhibited bias; and (4) he was 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). prejudiced by the failure of two witnesses to appear at the hearing. Petition for Review (PFR) File, Tab 1 at 4, Tab 6 at 3.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The appellant alleges that the agency discriminated against him as a result of his prior military service. PFR File, Tab 6 at 3. To this end, he seemingly reasserts that his supervisor treated other employees more favorably. PFR File, Tab 1 at 4. These assertions, which amount to mere disagreement with the administrative judge’s explained factual findings and legal conclusions therefrom, do not provide a basis to disturb the initial decision. See Riggsbee v. Office of Personnel Management , 111 M.S.P.R. 129, ¶ 11 (2009). The appellant asserts that he “was discriminated [against] based on [his] disability and veteran status.” PFR File, Tab 6 at 3. He also states that his supervisor “disregard[ed his] medical needs and [his] mental stage [sic].” PFR File, Tab 1 at 4. To the extent the appellant alleges that his status as a disabled 2 The appellant’s petition for review was untimely filed on February 12, 2020, 5 days after the filing deadline. PFR File, Tab 1. We do not reach the issue of the timeliness of the appellant’s petition for review, however, because the appellant’s petition does not meet the Board’s criteria for review.2 veteran was a motivating factor in the agency’s decision to remove him during his probationary period, his allegation is unavailing insofar as he fails to identify any evidence in the record to support his allegation. Initial Appeal File (IAF), Tab 9 at 11-23; see 5 C.F.R. § 1201.115(a)(2) (stating that a petitioner who alleges that the administrative judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error). To the extent he alleges disability discrimination unrelated to his status as a disabled veteran, his allegation is necessarily unavailing for purposes of corrective action under USERRA. See McGuffin v. Social Security Administration , 942 F.3d 1099, 1107-08 (Fed. Cir. 2019) (explaining that USERRA prohibits discrimination on the basis of military service). Thus, a different outcome is not warranted. The appellant states that the administrative judge “did not listen to the testimony carefully” and he avers that he did not receive “a fair trial.”3 PFR File, Tab 1 at 4, Tab 6 at 3. He also states that he was “the only male in the room” during the hearing. PFR File, Tab 6 at 3. We construe these statements as claims that the administrative judge exhibited bias. The Board has consistently held that, in making a claim of bias against an administrative judge, the appellant must overcome the presumption of honesty and integrity that accompanies all administrative adjudicators. Washington v. Department of the Interior , 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King, 1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a substantial showing of personal bias. Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12 (2000). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions 3 To this end, the appellant ostensibly asserts that the Board should provide him with the assistance of counsel so that he can have a “fair” hearing. PFR File, Tab 6 at 3. Insofar as there is no law, rule, or regulation requiring the Board to appoint counsel to represent a party, this assertion is unavailing. See Raymond v. Department of the Army , 102 M.S.P.R. 665, ¶ 4 n.1 (2006).3 indicate a deep-seated favoritism or antagonism that would render fair judgment impossible. Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411, ¶ 5 (2010). Here, the record is devoid of any indication of personal bias; thus, the appellant’s unsubstantiated assertions are insufficient to rebut the presumption of the administrative judge’s honesty and integrity. PFR File, Tab 1 at 4, Tab 6 at 3; see Washington, 81 M.S.P.R. 101, ¶ 7. Last, the appellant asserts that he was prejudiced because two witnesses “decide[d] not to show up to the court.” PFR File, Tab 6 at 3. Here, the record reflects that the agency sought, and the administrative judge approved, the testimony of these two witnesses; however, they did not appear at the hearing. IAF, Tab 14 at 8-9, Tab 15 at 1, Tab 19 at 1. To the extent the appellant argues that he was deprived of his right to question these witnesses as a result of their nonappearance, his argument is necessarily unavailing insofar as the appellant neither requested nor subpoenaed the subject witnesses. IAF, Tab 15 at 1; see Lohr v. Department of the Air Force , 24 M.S.P.R. 383, 386 (1984). To the extent the appellant contends that he was unfairly surprised by the nonappearance of these two agency witnesses, PFR File, Tab 6 at 3, his contention is similarly unavailing because he could have sought a continuance from the administrative judge in order to procure their testimony; however, he did not, see Lohr, 24 M.S.P.R. at 386. Thus, a different outcome is not warranted. 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 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 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation5 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 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	Nguyen_Vinh_K_SF-4324-19-0603-I-1__Final_Order.pdf	2024-04-17	VINH K. NGUYEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-4324-19-0603-I-1, April 17, 2024	SF-4324-19-0603-I-1	NP
1,752	https://www.mspb.gov/decisions/nonprecedential/Konopka_Stanley_A_PH-0752-19-0059-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STANLEY ANTHONY KONOPKA, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER PH-0752-19-0059-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stanley Anthony Konopka , Avenue, Maryland, pro se. Andrew D. Linenberg and Hilary V. Mountgordon , Washington, D.C., for the agency. Roburt Yale , Washington Navy Yard, 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 initial appeal as untimely filed. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On petition for review, the appellant makes arguments regarding the merits of his appeal and alleges that his initial appeal was untimely filed because he experienced difficulty using the Board’s online case filing system. Petition for Review (PFR) File, Tab 1 at 4-7. As set forth in the initial decision, the appellant’s arguments do not establish good cause for the untimely filing of his initial appeal. Initial Appeal File (IAF), Tab 15 at 3-5. The appellant first raises in his reply to the agency’s opposition to his petition for review that a medical condition contributed to his delay in filing the initial appeal. PFR File, Tab 6 at 7-8. The appellant did not raise this issue below; thus, the Board may decline to consider it. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (providing that, under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed, despite the party’s due diligence). Even if the Board were to consider the appellant’s new argument, he did not sufficiently show that his medical condition resulted in the untimely filing of his appeal. To establish that an untimely filing was the result of an illness, the party must: (1) identify the time period during which he suffered from the illness; (2) submit medical or other2 corroborating evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his appeal or requesting an extension of time. IAF, Tab 8 at 3; see Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 19 (2016) (citing Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 & n.* (1998)). The appellant did not identify the specific time period from which he suffered from the medical condition or submit corroborating evidence of his condition. Accordingly, we affirm the initial decision dismissing the initial appeal as untimely filed. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the 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, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.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 5 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Konopka_Stanley_A_PH-0752-19-0059-I-1_Final_Order.pdf	2024-04-17	STANLEY ANTHONY KONOPKA v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0059-I-1, April 17, 2024	PH-0752-19-0059-I-1	NP
1,753	https://www.mspb.gov/decisions/nonprecedential/Al_Salihi_Iman_A_SF-1221-21-0397-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD IMAN A. AL SALIHI, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-1221-21-0397-W-1 DATE: April 17, 2024 THIS ORDER IS NONPRECEDENTIAL1 Dennis P. Hickman , Monterey, California, for the appellant. Andrea Campanile , Esquire, APO, Armed Forces Pacific, for the agency. Karen L. Judkins and Laura H. Heller , Monterey, 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 denied corrective action in her individual right of action (IRA) appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the initial decision , and REMAND the case to the Western Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant received a term appointment with a not-to-exceed date of March 20, 2019, as an Assistant Professor at the Defense Language Institute Foreign Language Center (DLIFLC) in Monterey, California. Initial Appeal File (IAF), Tab 30 at 258. Her term appointment was twice extended through March 20, 2021. Id. at 243, 245. During her tenure with the agency, the appellant worked in the Middle East School 1 (MES)2, in several departments, under several different Department Chairs. Id. at 243, 245, 258; Hearing Recording (HR) (testimony of the appellant). Between June 2020 and February 2021, the appellant exchanged a series of emails with the Commandant of DLIFLC regarding, among other things, the recording and certifying of teaching hours in the Consolidated Teacher Activities Reports (CTAR) within MES.3 IAF, Tab 31 at 11-25. Specifically, the appellant contended that MES’s process for submitting CTARs was not uniform across its departments and that certain department chairs, including her former chair, did not allow teachers to verify their teaching hours on the CTARs, resulting in discrepancies in recorded teaching hours. Id. The appellant explained that she personally had not received credit for all of the hours she taught between 2018-2019, estimating that she did not receive credit for over 150 hours. Id. at 16-17. She also identified several individuals for the Commandant to contact that could verify her claims, including at least one person who had also not received credit for all teaching hours. Id. at 17. The appellant further explained that the lack of transparency in CTAR processing, specifically in Department D, made it easy for individuals to abuse leave and falsify time and 2 The agency refers to the Middle East School 1 as UMA. 3 CTARs record an instructor’s teaching hours and are used for time and attendance purposes. HR (testimony of the appellant).2 attendance records, and she provided specific examples of individuals she believed her former Department Chair was allowing to abuse leave and/or falsify hours. Id. at 18-19. The Commandant took the appellant’s concerns seriously, explaining that “[j]ust the perception that teachers are not getting credit for tracking hours is concerning and worthy of fixing.” Id. at 16. Later, he informed the appellant that he wanted to “fix this problem,” but he had to make sure that leadership understood the problem was within MES and asked if she had any objection to him “call[ing] out MES specifically regarding CTAR[s] problems.” Id. at 20. The appellant confirmed that the Commandant may proceed with “call[ing] out” MES regarding the CTAR issue but requested that he not disclose her name for fear of retaliation. Id. at 21. Thereafter, the Commandant forwarded the appellant an email chain between himself, the Provost, and the Dean, with the Chief of Staff copied, in which the Dean acknowledged concerns regarding CTARs from “some faculty” and advised that MES had created CTAR procedures that were “to be uniformly followed.” Id. at 21-23. Approximately one month before the Dean’s email response to the Provost and Commandant, the appellant had a meeting with the Dean, in which she discussed her concerns regarding the CTAR issues, specifically within Department D. Id. at 18. On March 1, 2021, the agency issued the appellant a memorandum informing her that her term appointment had not been renewed, and her employment would end on March 20, 2021. IAF, Tab 19 at 14. On March 16, 2021, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that, in reprisal for disclosing the CTAR issues, the agency issued her a letter of reprimand in February 2021, declined to extend her term appointment beyond March 20, 2021, and investigated her regarding a timecard irregularity on March 11, 2021.4 IAF, Tab 8 at 9-21. On May 25, 2021, 4 OSC appears to have characterized the investigation as a hostile work environment claim, IAF, Tab 1 at 24; however, the appellant, either before OSC or before the Board, did not so characterize her claim, IAF, Tab 8 at 6, 9-21.3 OSC closed its file in the matter and informed the appellant of her right to seek corrective action from the Board. IAF, Tab 1 at 24-25. Thereafter, the appellant filed an IRA appeal with the Board asserting the same claims she raised before OSC. IAF, Tab 1. The administrative judge issued a jurisdictional order in which she apprised the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered her to submit evidence and argument establishing Board jurisdiction. IAF, Tab 3. The appellant responded to the order, and the administrative judge found that the appellant exhausted her administrative remedies and made a nonfrivolous allegation that her CTAR disclosures were protected disclosures that were a contributing factor in the letter of reprimand, the non-extension of her term appointment, and the investigation into an irregularity in one of her time cards. IAF, Tab 14. After holding a hearing on the merits of the appellant’s claims, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 47, Initial Decision (ID). Specifically, the administrative judge found that, while the appellant exhausted her administrative remedies before OSC, she failed to prove that her disclosures regarding the CTAR issues were protected under 5 U.S.C. § 2302(b)(8) because they constituted policy disagreements, were speculative, and were merely personal complaints. ID at 14-19. Therefore, the administrative judge found that the appellant failed to prove that she had a reasonable belief that her disclosures evidenced any of the sort of wrongdoing contemplated by section 2302(b)(8)(A). ID at 16, 20. 4 The appellant has filed a petition for review of the initial decision.5 Petition for Review (PFR) File, Tab 1. She argues that the administrative judge erred in finding that her disclosures were not protected under 5 U.S.C. § 2302(b) (8) and asserts that her appointment was not renewed because she was the source of reports regarding the Dean and Department Chairs’ failure to properly handle CTARs, which resulted in inaccuracies and discrepancies in recorded hours.6 Id. at 5-15. The agency has filed a response to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW Under the Whistleblower Protection Enhancement Act, at the merits stage of the appeal, the appellant must prove by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in an agency’s personnel action. Smith v. Department of the Army , 2022 MSPB 4, ¶ 13. If the appellant meets that burden, the agency is given an opportunity to prove by clear and convincing 5 The appellant filed her petition for review in California, which is 3 hours behind Eastern time. All pleadings filed via e-Appeal Online are time stamped with Eastern Time. 5 C.F.R. § 1201.14(m)(1) (2022). Although the appellant’s Board appeal was time stamped as being filed on April 1, 2022, at 1:57 a.m., Eastern Time, it was actually filed on March 31, 2022, at 10:57 p.m., Pacific Time. PFR File, Tab 1 at 4. Thus, the appellant’s petition for review, which was due on March 31, 2022, was timely filed. 6 The appellant also includes within her petition for review a rebuttal of the agency’s report of investigation, which was provided in the agency’s prehearing submissions, regarding allegations that three Department Chairs harassed and/or created a toxic or unprofessional work environment for the appellant. PFR File, Tab 1 at 17-29, IAF, Tab 30 at 43-206. Specifically, the appellant challenges the agency’s findings and recommendations that no adverse action be taken against the three Department Chairs and that adverse action be taken against the appellant for engaging in harassment toward students, instructors, and supervisors. IAF, Tab 30 at 71. As the accuracy of the agency’s report of investigation has no impact as to whether the appellant made a protected disclosure that was a contributing factor in a covered personnel action, we do not address it. 5 evidence that it would have taken the same personnel action absent the protected disclosure or activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2). The appellant established that her CTAR allegations were protected disclosures under 5 U.S.C. § 2302(b)(8)(A). The administrative judge found that the appellant’s CTAR disclosures were not protected because she failed to establish that she held a reasonable belief that they evidenced the type of wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A). ID at 14-19. Specifically, the administrative judge found that the appellant’s emails did not disclose any known leave abuse or falsification, but instead contained allegations that were based on “purely surmise and speculation.” ID at 16-17. She also found that CTAR reports were not subject to any law, rule, or regulation and that the appellant’s CTAR allegations, at most, constituted a policy disagreement. ID at 17. Furthermore, to the extent that the appellant disclosed that she had not been credited with the correct number of hours, the administrative judge determined that this was a personal complaint or grievance, which did not constitute whistleblowing disclosures. ID at 18. A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Smith, 2022 MSPB 4, ¶ 14. A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Smith, 2022 MSPB 4, ¶ 14. 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, she must only show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in section 2302(b)(8)(A). Smith, 2022 MSPB 4, ¶ 14. 6 The administrative judge’s characterization of the appellant’s disclosures as pure speculation, personal complaints, and/or policy disagreements was incorrect. ID at 14-19. The appellant alleged that CTAR reports, which recorded teaching hours and overall attendance, were not being uniformly verified by the teachers in MES, thus resulting in discrepancies between recorded hours and actual hours worked. IAF, Tab 31 at 11-25. The appellant’s claims amount to allegations of time and attendance fraud, which is a clear violation of law, rule, or regulation. Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 12 (2004). Regarding whether the appellant held a reasonable belief that her disclosures evidence a violation of law, rule, or regulation, the appellant explained that her allegations were based on her own personal experience, the experience of others, and her observation of her colleagues’ schedules and behaviors. IAF, Tab 31 at 11-25; HR (testimony of the appellant). The Board has found that an appellant holds a reasonable belief where her disclosures are based on personal experiences and observations, especially when corroborated by other evidence. See Taylor v. Department of the Navy , 101 M.S.P.R. 478, ¶ 7 (2006) (finding that the appellant who, based on his own observations, reported that his supervisor was misusing his Government-owned vehicle and Government credit card, made a protected disclosure); Grubb, 96 M.S.P.R. 361, ¶ 12 (finding that the appellant’s specific allegations of time and attendance abuse based, in part, on her personal observations, established she held a reasonable belief). Here, the appellant’s personal experience and observations were validated by the reaction of the agency officials, including the Commandant and the Dean, both of whom seemed to acknowledge that there was a CTAR issue which needed addressing. IAF, Tab 31 at 20, 23. While the agency’s reaction does not prove that the agency actually violated a law, rule, or regulation, these reactions seemingly confirm that a problem existed, thus giving credibility to the reasonableness of the appellant’s belief. See Laberge v. Department of the Navy , 91 M.S.P.R. 585, ¶ 14 (2002), aff'd, 66 F. App’x 204 (Fed. Cir. 2003) (explaining7 that the agency’s reaction, which included not disputing the reasonableness of the appellant’s belief and citing testimony that the Commander agreed with the appellant’s recommendations and delayed work as a result, helped establish the reasonableness of the appellant’s beliefs). Accordingly, we find that the appellant held a reasonable belief that her CTAR disclosures constituted a violation of law, rule, or regulation, and thus, they are protected under 5 U.S.C. § 2302(b)(8)(A). The appellant established that her protected disclosures were a contributing factor in the agency’s decision not to extend her term appointment. The administrative judge did not make any findings as to whether the appellant met the contributing factor standard. ID at 19-20. Nevertheless, the record is fully developed on this issue and, as set forth below, clearly establishes that the appellant met the contributing factor standard with respect to the non-extension of her appointment.7 To prove 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. The knowledge/timing test allows an appellant to demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that the official who took 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. 7 Herein, we only make a contributing factor finding regarding the non-extension of the appellant’s term appointment. As we set forth below, we direct the administrative judge to make a finding as to whether the appellant met the contributing factor standard regarding the February 2021 letter of reprimand. Regarding the investigation into time keeping irregularities, the Board has found that, as here, where an investigation does not result in a disciplinary or adverse action, or the threat of such action, it does not constitute a covered personnel action under 5 U.S.C. § 2302. Spivey v. Department of Justice, 2022 MSPB 24, ¶ 9. 8 The appellant has established that the agency officials involved in the non-extension of her term appointment had knowledge of her disclosures. First, while the Provost and the Chief of Staff made the ultimate decision not to extend the appellant’s term appointment, they did so based on the recommendation of the Dean. HR (testimony of the Provost, testimony of the Dean). The Provost, Chief of Staff, and Dean were all aware that someone had raised CTAR concerns, given that the Commandant “call[ed] out” MES about the CTARs and sent several emails asking about MES’s handling of CTARs. IAF, Tab 31 at 20-25. Even crediting the Commandant’s testimony that he did not disclose the name of the appellant when he spoke to the Provost, Chief of Staff, and the Dean about her CTAR concerns, the Dean was aware that the appellant had these concerns because the appellant had disclosed them during a July 2020 meeting between the two of them. Id. at 18; HR (testimony of the Commandant). Thus, the agency officials involved in the decision not to extend the appellant’s appointment had either actual or constructive knowledge of the appellant’s disclosures, and she has satisfied the knowledge prong of the knowledge/timing test. Additionally, we find that the appellant has established the timing prong of the knowledge/timing test. The Board has found that personnel actions taken within approximately 1 to 2 years of the protected disclosure satisfy the knowledge/timing test. Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113, ¶ 16 (2011). Here, the appellant made her disclosures starting in June 2020, and 9 months later the agency notified her that her term appointment was not being extended. IAF, Tab 19 at 14, Tab 31 at 11. Therefore, the appellant satisfies the knowledge/timing test, and she established that her protected disclosures were a contributing factor in the agency’s decision not to extend her appointment.9 Because there are outstanding issues of material fact which necessitate credibility determinations, we remand this matter to the regional office for further adjudication as set forth in this order. As the appellant has made her prima facie case of whistleblower reprisal, corrective action must be ordered unless the agency can prove by clear and convincing evidence that it would have taken the personnel actions absent her whistleblowing. 5 U.S.C. § 1221(e)(2). After reviewing the record, we believe there are material disputes of fact that require credibility determinations and the administrative judge is in the best position to make these determinations. See Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 32 (2013) (finding that the administrative judge was in the best position to make necessary credibility findings and remanding the appeal to further analyze the clear and convincing standard). Thus, we find that a remand is necessary. The administrative judge who oversaw the proceedings below and issued the initial decision is no longer employed by the Board. When there is conflicting testimony on a material issue and a new administrative judge will decide the case, the testimony should be heard again to permit credibility determinations on witness demeanor. Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 24. Therefore, the newly assigned administrative judge should accept evidence and argument, and hold a supplemental hearing, on the following. The administrative judge should analyze the Carr factors and make a finding as to whether the agency has met the clear and convincing burden regarding the non-extension of the appellant’s term appointment. The administrative judge should also make a finding as to whether the appellant established that her protected disclosures were a contributing factor in the February 2021 letter of reprimand. To the extent that the administrative judge finds that the appellant has met the contributing factor standard regarding the February 2021 letter of reprimand, she shall then make a finding regarding whether the agency met its clear and convincing standard with respect to this personnel action. 10 ORDER For the reasons discussed above, we remand this case to the Western Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Al_Salihi_Iman_A_SF-1221-21-0397-W-1__Remand_Order.pdf	2024-04-17	IMAN A. AL SALIHI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-21-0397-W-1, April 17, 2024	SF-1221-21-0397-W-1	NP
1,754	https://www.mspb.gov/decisions/nonprecedential/Agboke_AdetayoSF-1221-18-0106-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADETAYO AGBOKE, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER SF-1221-18-0106-W-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Adetayo Agboke , Long Beach, California, pro se. Gregory Baruch , Esquire, Paul W. Bridenhagen , Esquire, and Sarah Bishop , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 clarify that the appellant’s claims arising from Complaint 1 (MA-17-2480) with the Office of Special Counsel (OSC) are dismissed as untimely filed, we AFFIRM the initial decision. BACKGROUND OSC complaints. The appellant was an Auditor (Bankruptcy), GS-0511-14, in the Los Angeles office within Region 16 of the U.S. Trustee Program (USTP). Initial Appeal File (IAF), Tab 1 at 7. His immediate supervisor was the Assistant U.S. Trustee (AUST) for the Los Angeles Office, and his second-level supervisor was the U.S. Trustee (UST) for Region 16. IAF, Tab 15 at 4. During the period at issue in this appeal, the appellant filed four complaints with OSC. In Complaint 1 (MA-17-2480), the appellant claimed that the agency retaliated against him for filing a June 17, 2016 grievance in which he contended that the AUST had used false information to determine his 2015-2016 performance appraisal rating. IAF, Tab 20 at 7, Tab 23 at 113-17. He alleged before OSC that, since the filing of the grievance, the AUST had engaged in racist and biased behavior, blamed him for her own errors, used abusive language, and applied rules unevenly. IAF, Tab 20 at 7. The appellant also referred to the 3 agency’s denial of his request for situational telework and a February 22, 2017 letter of reprimand (LOR) issued by the UST. Id.; IAF, Tab 6 at 45-48. On June 8, 2017, OSC notified the appellant of its final determination to close its file. IAF, Tab 20 at 6. In Complaint 2 (MA-17-5458), the appellant claimed that the agency’s August 30, 2017 proposal to suspend him for 7 days2 was in retaliation for, among other things, an August 29, 2017 equal employment opportunity (EEO) complaint. IAF, Tab 6 at 54-59, Tab 20 at 24-31. He stated that, on August 3, 2017, he advised the AUST and the UST of ongoing discrimination and bias on the part of the AUST, and that, on August 29, 2017, he told the AUST and UST that he “would not be acquiescing to any discriminatory employment practices.” IAF, Tab 20 at 27, 29. According to the appellant, the UST then came to his office, physically blocked him from leaving, and insisted on discussing the allegations. Id. at 28-29. The appellant further related that, on August 29, 2017, following the meeting with the UST, he notified the director of USTP of his intent to file an EEO complaint, and also contacted the agency’s EEO office. Id. He asserted that the notice of proposed suspension, which the UST issued the following day, was part of a “pattern and practice of retaliation,” and that the notice improperly referenced the LOR—which, according to the appellant, had been rescinded as a result of his March 9, 2017 grievance contesting the LOR. Id.; IAF, Tab 16 at 85-87. The appellant further stated that, on April 20, 2017, he advised the AUST that his performance rating for 2015-2016 was based on incorrect information, and he alleged that the proposed suspension was “part of a retaliation pattern” for filing the June 17, 2016 grievance of that performance 2 In the proposed suspension, the agency alleged that, on or about August 9, 2017, the appellant engaged in unprofessional conduct during an email exchange with the AUST in which the appellant refused her request to place an email into the trustee file. IAF, Tab 6 at 54-55, Tab 16 at 10-13. The proposal also alleged that, on August 2, 2017, the appellant engaged in another unprofessional email exchange with the AUST concerning her request that he refrain from sending emails to employees of a law firm representing the debtor in a particular case. IAF, Tab 6 at 55-56, Tab 16 at 14-35. 4 rating. IAF, Tab 20 at 28-29. He also referred to communications with the AUST and the UST in which he told them that he would not be “subject to rules exclusively applied to [him],” and that he would not perform duties outside his job description, in particular, a request by the AUST to file an email. Id. In a September 28, 2017 email, OSC informed the appellant that the case had been closed because OSC defers claims of race discrimination to the EEO process. Id. at 23. The appellant objected that his complaint was not based entirely on alleged discrimination, and, later that day, OSC agreed to open a new complaint (Complaint 3) to investigate his allegations that the proposed suspension was the result of retaliation for his protected grievance activity. Id. at 32-37. The appellant states that he did not receive a formal closure letter for Complaint 2. Petition for Review (PFR) File, Tab 1 at 6. Complaint 3 was assigned case number MA-17-5869. IAF, Tab 20 at 38. On November 14, 2017, OSC notified the appellant that it had terminated its inquiry into Complaint 3 and advised him of his right to seek corrective action with the Board. Id. at 38-40. In the closure letter, OSC clarified that the appellant had alleged that the agency issued the August 30, 2017 notice of proposed suspension in retaliation for the grievances he filed on June 17, 2016, and March 9, 2017. Id. at 38. In Complaint 4 (MA-18-1924), filed on December 22, 2017, the appellant raised new claims of whistleblowing reprisal. Id. at 42-55. Specifically, he alleged that he made protected disclosures when (1) on August 24, 2017, he disclosed to the UST that a trial attorney in USTP improperly closed a case despite evidence of bankruptcy fraud; and (2) on November 20, 2017, he reported to the agency’s Office of Inspector General that the UST failed to properly handle evidence of bankruptcy fraud. Id. at 49. He alleged that the agency retaliated against him for those disclosures when (1) on December 15, 2017, it denied him access to his office and forced him to telework indefinitely; and (2) on December 17, 2017, it issued a Standard Form 50 reflecting a 7-day suspension 5 when the decision to suspend him was not yet final. Id. at 46. It is unclear if or when OSC terminated its investigation into Complaint 4, and the appellant states that he does not intend that complaint to serve as basis for his appeal. PFR File, Tab 1 at 4-6. Board proceedings. On November 26, 2017, prior to the filing of Complaint 4, the appellant filed the instant IRA appeal. IAF, Tab 1. The administrative judge issued an order advising the appellant of the applicable standards and burdens of proof and providing him an opportunity to submit evidence and argument establishing jurisdiction over his appeal. IAF, Tab 3. The appellant filed a response, but did not at that time provide evidence that he had exhausted the OSC complaint process. IAF, Tab 6. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 15. The administrative judge then issued a second jurisdictional order, providing the appellant an opportunity to demonstrate that he had exhausted his remedies with OSC. IAF, Tab 19. In response, the appellant submitted documents relating to all four OSC complaints. IAF, Tab 20. On March 22, 2018, the administrative judge issued another order, advising the appellant that Complaint 1 appeared to be untimely, as he had received a closure letter for that complaint on June 8, 2017, more than 65 days before the IRA appeal was filed. IAF, Tab 20 at 6, Tab 21. The administrative judge also ruled that the appellant had not as yet exhausted his remedies with respect to Complaint 4, which was still open with OSC and less than 120 days old, and that she would not consider the matters raised in that complaint as part of the pending IRA appeal. IAF, Tab 21. The administrative judge provided the parties additional time to respond to the issue and noted that the record on timeliness would close on April 30, 2018. Id. Both parties responded to the order. IAF, Tabs 21-28, 30-43. On June 1, 2018, the administrative judge issued an initial decision dismissing the appeal without a hearing. IAF, Tab 45, Initial Decision (ID). 6 Regarding Complaint 1, she found that the appellant had failed to timely seek corrective action with the Board. ID at 9-10. Regarding Complaints 2 and 3, the administrative judge found that the appellant exhausted his remedy with OSC concerning his allegation that the June 17, 2016 and March 9, 2017 grievances were a contributing factor in the August 30, 2017 notice of proposed suspension. ID at 12. However, the administrative judge found that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b) (9)(A)(i). ID at 12-17. Finally, the administrative judge found that the appellant had not as yet exhausted his remedies with respect to Complaint 4, but advised him that, if he wished to file an IRA appeal based on Complaint 4, he could do so within 65 days of receipt of a closure letter from OSC, or after 120 days had elapsed since he initiated the complaint. ID at 17-18. Accordingly, the administrative judge dismissed the appeal without a hearing. ID at 1, 18-19. On petition for review, the appellant argues that the administrative judge failed to consider his performance record; that she erred in treating Complaint 4 as a basis for his appeal; that she did not consider evidence and argument concerning the closure of Complaint 2 and the opening of Complaint 3, and erroneously referenced a closure letter in Complaint 2 that was never issued; that the agency’s response to the jurisdictional order was late; that the administrative judge failed to consider evidence that the agency committed harmful error and denied him due process when it considered the ROI as prior discipline in proposing the 7-day suspension; that she erred in finding that his disclosures of alleged wrongdoing by the AUST and the UST were not protected; that he made protected disclosures that trial attorneys violated 28 U.S.C. § 586(f)(2)(B) in failing to act on evidence of bankruptcy fraud; and that the agency engaged in additional unlawful conduct subsequent to the initial decision. PFR File, Tab 1 at 4-15. The agency has filed a response, to which the appellant has replied. PFR File, Tabs 6-7. 7 ANALYSIS The appellant’s claims arising from Complaint 1 are dismissed as untimely filed. Under 5 U.S.C. § 1214(a)(3)(A), if OSC notifies an appellant that its investigation into a complaint of whistleblowing reprisal has been terminated, he may file an IRA appeal with the Board provided that no more than 60 days have elapsed since notice of the termination was provided. Under the Board’s regulations implementing that statutory time limit, an IRA appeal must be filed no later than 65 days after the date that OSC’s written notice of termination is issued or, if the appellant shows that the notification was received more than 5 days after the date of issuance, within 60 days after receipt of the notice. 5 C.F.R. § 1209.5(a)(1). In this case, OSC issued its closure letter for Complaint 1 on June 8, 2017, and the appellant has not alleged that he received it more than 5 days later. IAF, Tab 20 at 6. Consequently, the deadline for filing an IRA appeal based on the claims at issue in Complaint 1 was August 14, 2017. See 5 C.F.R. § 1201.23 (providing that, if the day that would ordinarily be the last day for filing falls on a weekend or holiday, the filing period will include the first workday after that date). The appellant filed the instant appeal on November 26, 2017, more than 3 months after the deadline. IAF, Tab 1. Unlike the Board’s regulatory time limits for appeals filed under 5 U.S.C. § 7701, the statutory time limit for filing an IRA appeal cannot be waived for good cause shown because there is no statutory mechanism for doing so. See Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 9 (2014). However, the filing deadline may be subject to equitable tolling, in which the filing period is suspended for equitable reasons, such as when the complainant has actively pursued his judicial remedies by filing a defective pleading within the statutory period, or when he has been induced or tricked by his adversary’s misconduct into allowing the deadline to pass. Id., ¶ 10; see 5 C.F.R. § 1209.5(b). Equitable tolling is a rare remedy that is to be applied in unusual circumstances and generally requires a showing that the litigant has been 8 pursuing his rights diligently and some extraordinary circumstances stood in his way. Heimberger, 121 M.S.P.R. 10, ¶ 10. In her March 22, 2018 show cause order on timeliness, the administrative judge did not mention the doctrine of equitable tolling. IAF, Tab 21. However, the agency did raise the equitable tolling issue and describe the applicable legal framework in its April 30, 2018 response to the order. IAF, Tab 29 at 5-7. This was sufficient to put the appellant on notice of the doctrine of equitable tolling and the circumstances in which it applies. Cf. Yost v. Department of Health and Human Services , 85 M.S.P.R. 273, 277 (2000) (holding that an administrative judge’s failure to provide notice of jurisdictional requirements may not be prejudicial if the agency’s motion to dismiss places the appellant on notice of what he has to allege to establish jurisdiction), aff’d, 4 F. App’x 900 (Fed. Cir. 2001). Although the record on timeliness was scheduled to expire that same day, IAF, Tab 21 at 2, the appellant continued to file supplemental responses to the March 22, 2018 order, IAF, Tabs 30-43, and the administrative judge considered those responses, ID at 7 n.2. Under these circumstances, we find that the appellant received a fair opportunity to present evidence and argument in support of equitable tolling. In his responses to the timeliness order, the appellant alleged that, during the period between the June 8, 2017 closure letter for Complaint 1 and the August 14, 2017 deadline, the agency engaged in misconduct that affected his ability to timely file an IRA appeal. IAF, Tab 22 at 6. In particular, he asserted that the misconduct involved retaliation for his disclosure of bankruptcy fraud in a particular case. Id. at 6-7; IAF, Tab 30 at 5. Although the administrative judge did not explicitly refer to the doctrine of equitable tolling in the initial decision, we agree with her finding that the appellant failed to explain how alleged misconduct would have prevented him from meeting the August 14, 2017 deadline. ID at 10. In other words, the appellant has not shown that there were circumstances, extraordinary or otherwise, that stood in the way of his filing a 9 timely appeal. Consequently, we find that the doctrine of equitable tolling does not operate to extend the filing deadline, and we affirm the dismissal of the claims raised in Complaint 1. We note, however, that the initial decision contains language suggesting that the entire appeal was dismissed for lack of jurisdiction. ID at 1, 18-19. With respect to the claims arising from Complaint 1, the correct disposition is to dismiss those claims as untimely filed, without reaching the jurisdictional issue. See Heimberger, 121 M.S.P.R. 10, ¶ 13. We modify the initial decision accordingly. The administrative judge correctly dismissed the claims raised in Complaints 2 and 3 for lack of jurisdiction. To establish jurisdiction over an IRA appeal, an appellant must show that he exhausted his administrative remedies before OSC and make nonfrivolous allegations that (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b) (9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim. Salerno, 123 M.S.P.R. 230, ¶ 5. The Board’s jurisdiction in an IRA appeal is limited to issues raised before OSC. Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993). Given our finding on timeliness as to Complaint 1, and the appellant’s insistence that Complaint 4 is not a basis for this appeal, we consider only those claims that were raised in Complaints 2 and 3. We agree with the administrative judge that, with respect to the claims raised in Complaints 2 and 3, the appellant did not make a nonfrivolous allegation of a protected disclosure. Protected disclosures include any disclosure of 10 information that the employee reasonably believes evidences a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8). A nonfrivolous allegation of a protected disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced a type of wrongdoing specified under 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6. The test for determining whether an employee had a reasonable belief that his disclosures revealed a type of wrongdoing listed under 5 U.S.C. § 2302(b)(8) is to inquire whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the Government evidence such wrongdoing. Id. As the appellant correctly observes, the fact that an individual has engaged in activity under 5 U.S.C. § 2032(b)(9), such as filing a grievance or EEO complaint, does not preclude him from raising a claim under 5 U.S.C. § 2302(b) (8) if he made disclosures based on the same operative facts outside the (b)(9) activity. Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 10 (2000). Here, the appellant appears to have alleged that he made protected disclosures outside his grievance and EEO activity. IAF, Tab 20 at 27-29. Nonetheless, we agree with the administrative judge that the appellant failed to nonfrivolously allege that the disclosures he identified in Complaint 2 were protected.3 First, to the extent the appellant claims to have disclosed to the AUST, UST, and higher management that the AUST discriminated against him based on his race, alleged disclosures that an agency engaged in discrimination and created a hostile work environment in violation of Title VII are excluded from coverage under 5 U.S.C. § 2302(b)(8). McDonnell v. Department of Agriculture , 108 M.S.P.R. 443, ¶ 22 (2008); see Edwards v. Department of Labor , 2022 MSPB 3 Complaint 3 does not appear to allege retaliation for disclosures made outside the appellant’s grievance activity. IAF, Tab 20 at 38. 11 9, ¶¶ 21-23 (clarifying that the Whistleblower Protection Enhancement Act of 2012 did not expand the scope of § 2302(b)(8) to include Title VII claims), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). As to the remaining alleged disclosures, the appellant appears to allege that he disclosed an abuse of authority on the part of the AUST. An abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons. Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 11 (2011). For example, the Board has held that a supervisor’s use of his influence to denigrate other staff members in an abusive manner and threaten the careers of staff members with whom he disagrees constitutes an abuse of authority. Id. With regard to the appellant’s assertions that the AUST based his performance rating on erroneous information and improperly asked him to file an email, we find that the appellant failed to allege facts that, if proven, would show that a reasonable person would find that the AUST’s actions evidenced such an arbitrary or capricious exercise of power, or any other type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). Finally, the appellant’s alleged disclosure that he had been “subjected to rules exclusively applied to [him],” IAF, Tab 20 at 28, is too vague to constitute a nonfrivolous allegation of a protected disclosure , see Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 17 (2006). We also agree with the administrative judge that, with respect to the issues exhausted in Complaints 2 and 3, the appellant failed to make a nonfrivolous allegation that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). The appellant’s grievances and EEO complaint constitute protected activity under 5 U.S.C. § 2302(b)(9)(A), which generally protects the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation. However, such activity falls within the scope of § 2302(b)(9)(A)(i) only if it is “with regard to remedying a violation of paragraph (8).” In other 12 words, the substance of the appeal, complaint, or grievance must itself concern a claim of retaliation for disclosures protected under § 2302(b)(8). See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). Here, neither of the appellant’s grievances involves a claim that he made a protected disclosure that was a contributing factor in a personnel action. IAF, Tab 6 at 116-18, Tab 16 at 76-78. Nor has the appellant alleged that he raised a claim of whistleblowing reprisal in his EEO complaint. Because the appellant’s grievances and EEO complaint did not seek to remedy a violation of § 2302(b)(8), they constitute protected activity under § 2302(b)(9)(A)(ii), not § 2302(b)(9)(A)(i). As such, they do not support a finding of IRA jurisdiction. See Mudd, 120 M.S.P.R. 365, ¶ 7. The evidence submitted with the appellant’s petition does not provide a basis for further review. In support of his petition, the appellant has attached approximately 800 pages of supporting exhibits. PFR File, Tab 1 at 16-321, Tabs 2-4. We note that it is not the Board’s obligation to pore through the record to construe and make sense of allegations set forth at various parts of an extremely voluminous case file. See Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶18 n.2 (2002) (citing Embry v. Department of Transportation , 13 M.S.P.R. 505, 507 (1982)). Nonetheless, we have examined the exhibits and find that they do not contain new and material evidence that would warrant further review. With regard to the documents that predate the close of the record on jurisdiction (March 9, 2018) and timeliness (April 30, 2018), we find that they do not qualify as new evidence because (1) the information contained therein is duplicative of submissions already contained in the record, see Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989); or (2) the appellant has not shown that the information was unavailable before the close of the record despite his due diligence, see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). To the extent that documents postdating the close of the record contain new 13 information, this information concerns events that took place after the Board appeal was filed. Those matters could not have been exhausted in Complaints 2 or 3, nor could they have affected the timeliness of the appeal with respect to Complaint 1. As to Complaint 4, the appellant vehemently insists that his appeal is not based on that complaint.4 PFR File, Tab 1 at 4-6. Thus, to the extent the appellant’s evidence is new, it is not material to the outcome of this case.5 See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). 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. 4 The appellant may file a separate IRA appeal based on Complaint 4 consistent with the Board’s regulations and the applicable statutes. We make no finding here as to the timeliness of such an appeal. 5 We have considered the appellant’s remaining arguments and find they are either without merit or outside the scope of this appeal. 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. 14 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 15 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 16 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 17 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Agboke_AdetayoSF-1221-18-0106-W-1__Final_Order.pdf	2024-04-17	ADETAYO AGBOKE v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-1221-18-0106-W-1, April 17, 2024	SF-1221-18-0106-W-1	NP
1,755	https://www.mspb.gov/decisions/nonprecedential/Agboke_AdetayoSF-0752-19-0574-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADETAYO AGBOKE, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER SF-0752-19-0574-I-1 DATE: April 17, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Adetayo Agboke , Long Beach, California, pro se. Paul W. Bridenhagen , Esquire, and Sarah Bishop , 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 his removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW Effective October 5, 2018, the agency removed the appellant from the position of Auditor (Bankruptcy), GS-0511-14, on charges of unacceptable conduct, failure to follow instructions, and failure to cooperate with an investigation. Initial Appeal File (IAF), Tab 17 at 41-48, 50. On appeal, the administrative judge sustained the charges, found a nexus between the appellant’s misconduct and the efficiency of the service, and determined that the penalty was reasonable. IAF, Tab 68, Initial Decision. On petition for review, the appellant argues, among other things, that the administrative judge abused her discretion by: (1) denying his motion to sanction the agency for its failure to comply with deadlines for submission of the agency file; (2) striking his affirmative defenses; and (3) denying his motion for recusal. Petition for Review File, Tab 1 at 11-12. For the following reasons, we find no merit to his assertions. The administrative judge did not abuse her discretion in denying the appellant’s motion to sanction the agency. An administrative judge may impose sanctions on a party as necessary to serve the interests of justice. 5 C.F.R. § 1201.43. The authority to impose2 sanctions “covers, but is not limited to,” circumstances including failure to comply with an order, failure to prosecute or defend an appeal, or failure to make a timely filing. Id. The imposition of sanctions is a matter within the administrative judge’s sound discretion. Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); Davis v. Department of Commerce , 120 M.S.P.R. 34, ¶ 18 (2013). Here, the agency twice failed to submit a compliant agency file before the deadline set forth in the administrative judge’s orders. IAF, Tabs 6, 8, 15-17. However, the administrative judge reasonably concluded that striking the agency file as a sanction would not have served the interests of justice, given that the filing delay of a few hours was de minimis, and that the appellant failed to show that he was prejudiced by the delay. IAF, Tab 21 at 7-8; see Hay v. U.S. Postal Service, 106 M.S.P.R. 151, ¶ 10 (2007) (holding that a party is not entitled to sanctions for the untimely filing of a submission absent a showing of prejudice). Accordingly, we discern no abuse of discretion in her decision not to impose sanctions on the agency. The administrative judge did not abuse her discretion in striking the appellant’s affirmative defenses. The appellant further argues that the administrative judge abused her discretion by striking his affirmative defenses as a sanction for his refusal to appear for a deposition. We note that the Board has looked with disfavor on striking affirmative defenses as a sanction for failure to comply with an order when the same result might be achieved by prohibiting the appellant from presenting evidence supporting those defenses. Simon v. Department of Commerce, 111 M.S.P.R. 381, ¶¶ 14-15 (2009); see 5 C.F.R. § 1201.43(a)(2) (providing that when a party fails to comply with an order, the administrative3 judge may “[p]rohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information”). Furthermore, the appellant’s response to the affirmative defenses order was not yet due, IAF, Tab 22, and he had given no indication that he wished to withdraw his defenses, see Simon, 111 M.S.P.R. 381, ¶ 15. However, even if striking the appellant’s affirmative defenses was not a well-tailored sanction, we find no abuse of discretion on the part of the administrative judge, as it would have been well within her authority and discretion to impose the more severe sanction of dismissal. The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal in good faith. Davis, 120 M.S.P.R. 34, ¶¶ 17-19. Such a severe sanction is appropriate only when necessary to serve the ends of justice and should be imposed only when: (1) a party has failed to exercise due diligence in complying with Board orders; or (2) a party has exhibited negligence or bad faith in its efforts to comply. Id., ¶ 18. Here, the appellant’s refusal to comply with the order to appear at his deposition was repeated and defiant. Moreover, his incessant verbal abuse of the administrative judge, including baseless accusations of racism and corruption, itself shows bad faith warranting dismissal. See Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 15 (2016) (finding that the appellant’s defiant refusal to comply with directions provided by the Clerk of the Board, combined with his continual misogynistic invective directed at the Board’s female staff, warranted dismissal of his petition for review). Considering that the administrative judge could have properly dismissed the appeal with prejudice, as the agency requested, we find that she did not abuse her discretion by choosing a less severe sanction. Cf. Simon, 111 M.S.P.R. 381, ¶ 15 (finding that the administrative judge abused her discretion in striking the appellant’s affirmative defenses when the agency had not requested that sanction and a lesser evidentiary sanction was sufficient). 4 The administrative judge did not abuse her discretion in denying the appellant’s motion for recusal. Finally, we have considered the appellant’s contention that the administrative judge abused her discretion in denying his motion for recusal. The Board’s regulations provide that a party may file a motion asking the administrative judge to withdraw “on the basis of personal bias or other disqualification.” 5 C.F.R. § 1201.42(b). To the extent the appellant contends that the administrative judge was biased, we find no merit to his accusation. 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). The fact that an administrative judge has ruled against a party in the past, or mere conclusory statements of bias, do not provide sufficient bases for disqualification. Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 281 (1991). Rather, the administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)).2 While the appellant emphatically disagrees with many of the administrative judge’s rulings, he has not made the required showing. To the contrary, the record shows that the administrative judge reacted patiently to the appellant’s contumacious conduct at the telephonic status conference, IAF, Tab 21 at 3-4, and displayed evenhandedness by ruling against the agency on several occasions, IAF, Tab 6 at 2 (denying the agency’s requested extension of the deadline for submission of 2 One of the attachments to the appellant’s petition is a law review article criticizing the Liteky decision. See Lori M. Mcpherson, Liteky v. United States: The Supreme Court Restricts the Disqualification of Biased Federal Judges Under Section 455(a ), 28 U. Rich. L. Rev. 1427 (1994). Whatever academic merit that article may have, we are bound to follow U.S. Supreme Court precedent.5 the agency file), Tab 8 (rejecting a technically deficient agency file), Tab 21 at 8 (admonishing the agency for its failure to strictly comply with her orders), Tab 54 at 9 (denying the agency’s request to dismiss the appeal). We have also considered the appellant’s contention that the administrative judge should be disqualified on grounds other than bias. See 5 C.F.R. § 1201.42(b) (providing that a party may file a motion asking the administrative judge to withdraw on the basis of personal bias “or other disqualification”). In determining whether an administrative judge should be disqualified on grounds other than bias, the Board’s policy is to follow the standard set out at 28 U.S.C. § 455(a). Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 20 (2010); Shoaf v. Department of Agriculture , 97 M.S.P.R. 68, ¶ 7 (2004). The Board has described that standard as follows: The goal of section 455(a) is to avoid even the appearance of partiality. Thus, the test applied is not whether a judge is in fact biased or prejudiced, but whether a judge’s impartiality might reasonably be questioned. In enacting section 455(a), Congress created an objective standard under which disqualification of a judge is required when a reasonable person, knowing all the facts, would question the judge’s impartiality. In applying this standard, it is critically important to identify the facts that might reasonably cause an objective observer to question the judge’s impartiality. Shoaf, 97 M.S.P.R. 68, ¶ 7 (internal citations and quotations omitted). Whether an adjudicator’s impartiality might reasonably be questioned turns upon an objective evaluation of the facts and circumstances of each case. Acting Special Counsel v. Sullivan , 4 M.S.P.R. 485, 488-89 (1981). Here, the appellant has failed to identify any facts whatsoever that would reasonably cause an objective observer to question the administrative judge’s impartiality. Under these circumstances, it was not an abuse of discretion for the administrative judge to deny the appellant’s motion for recusal. Indeed, a judge “is as much obligated not to recuse himself when it is not called for as he is obliged to when he is.” Lee, 115 M.S.P.R. 533, ¶ 22 (citing Washington v.6 Department of the Interior, 81 M.S.P.R. 101, ¶ 15 (1999) (quoting In re Drexel Burnham Lambert , Inc., 861 F.2d 1307, 1312 (2d Cir.1988))). We have considered the appellant’s remaining arguments and find that they are either without merit or outside the scope of this appeal.3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 As the administrative judge correctly found, the Board lacks jurisdiction to consider the appellant’s challenge to his performance review and the denial of a quality step increase (QSI). IAF, Tab 54 at 2-4; see Clark v. Department of the Air Force , 111 M.S.P.R. 477, ¶ 9 (2009 ) (noting that the Board generally lacks jurisdiction over an appeal of a performance-based award, such as a QSI); Ariza v. Department of Education, 36 M.S.P.R. 54, 55 (1988 ) (noting that the Board generally lacks authority to hear appeals of performance ratings). 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 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you8 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 9 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 10 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Agboke_AdetayoSF-0752-19-0574-I-1__Final_Order.pdf	2024-04-17	ADETAYO AGBOKE v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-19-0574-I-1, April 17, 2024	SF-0752-19-0574-I-1	NP
1,756	https://www.mspb.gov/decisions/nonprecedential/Cleaver-Bascombe_KarenDC-0752-15-0034-C-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KAREN CLEAVER-BASCOMBE, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER DC-0752-15-0034-C-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Karen Cleaver-Bascombe , Washington, D.C., pro se. Timothy O. Schranck and Martin A. Gold , 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 denied her petition for enforcement of a 2015 settlement agreement that she entered into with the agency. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. However, we VACATE the initial decision’s finding that the appellant failed to establish good cause for the untimely filing of her petition for enforcement of the lump sum payment claim and MODIFY the initial decision to DISMISS this claim because the appellant did not file her petition for enforcement within a reasonable amount of time after she became aware of the supposed breach. We further MODIFY the initial decision by addressing the appellant’s entire breach claim regarding the confidentiality provision. BACKGROUND On October 13, 2014, the appellant filed an appeal with the Board contesting her removal from the agency. Cleaver-Bascombe v. Department of Agriculture, MSPB Docket No. DC-0752-15-0034-I-1, Initial Appeal File (IAF), Tab 1. Effective May 13, 2015, the appellant and the agency entered into a settlement agreement. Cleaver-Bascombe v. Department of Agriculture , MSPB Docket No. DC-0752-15-0034-C-1, Compliance File (CF), Tab 8 at 21-30. The administrative judge issued an initial decision in the removal appeal on May 14, 2015, dismissing it as settled and entering the agreement into the Board’s record for enforcement purposes. IAF, Tab 93, Initial Decision (ID) at 1-2. 2 Under the terms of the settlement agreement, the agency, among other things, agreed to pay the appellant a lump sum of $100,000, and expunge the appellant’s official personnel folder and other agency files of documents concerning her removal (and other select personnel matters). CF, Tab 8 at 21-25. In exchange, the appellant, among other provisions, agreed to voluntarily resign in lieu of her removal, not seek employment in the same office in the future, and withdraw and waive claims against the agency through the effective date of the agreement, including her removal appeal before the Board. Id. at 25-28. A provision was included requiring the parties to keep the agreement confidential, but it did state that the agreement did not provide the appellant with a “clean record” and that the agency would not withhold information from “lawful requestors to whom the Agency is legally obligated to disclose such records.” Id. at 22, 28. On April 16, 2018, the appellant filed a petition for enforcement with the Board, setting forth claims that the agency breached the settlement agreement. CF, Tab 1. First, the appellant alleged she received $64,000 on or about June 30, 2015, and not the $100,000 outlined in the agreement. CF, Tab 1 at 10, Tab 10 at 6-7. The appellant then asserted that in 2018, the agency violated the confidentiality provision of the settlement agreement by disclosing her removal and the existence of the settlement agreement to the Office of Disciplinary Counsel for the District of Columbia’s Board on Professional Responsibility. CF, Tab 1 at 10, Tab 10 at 7-15. The administrative judge issued an initial decision on June 19, 2018, dismissing the petition for enforcement regarding the lump sum payment as untimely filed and finding that the appellant failed to prove that the agency breached the confidentiality provision of the agreement. CF, Tab 11, Compliance Initial Decision (CID) at 1-8. The appellant’s petition for review followed, and the agency responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. 3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred when assessing in the initial decision whether the appellant established good cause for the untimely filing of her petition for enforcement on the lump sum payment claim. Unlike a Board order where the Board’s regulations require a notice of compliance, there is no such requirement where a case is settled. Kasarsky v. Merit Systems Protection Board , 296 F.3d 1331, 1335 (Fed. Cir. 2002); 5 C.F.R. § 1201.181; see Bostick v. Department of Health and Human Services , 63 M.S.P.R. 399, 401 (1994). A petition for enforcement of a settlement agreement must be filed within a reasonable amount of time from the date the petitioning party becomes aware of the alleged breach of the agreement. Phillips v. Department of Homeland Security , 118 M.S.P.R. 515, ¶ 11 (2012); see Bostick, 63 M.S.P.R. at 401. There is no need to show good cause to excuse an untimely filing of a petition for enforcement of a settlement agreement. Poett v. Merit Systems Protection Board , 360 F.3d 1377, 1380-81 (Fed. Cir. 2004). Therefore, the administrative judge erred in the initial decision when assessing whether the appellant demonstrated good cause for the late filing of her petition for enforcement on the lump sum payment claim, meaning that any conclusions on the matter are vacated. CID at 5-6. The appellant was provided with notice and an opportunity to establish that her petition for enforcement was timely filed. When an appeal appears untimely, an administrative judge is to apprise the appellant of the issue by providing information concerning what she must show to establish that her appeal was timely. Gutierrez v. U.S. Postal Service , 90 M.S.P.R. 604, ¶ 11 (2002). The appellant must then be provided with an opportunity to submit argument and evidence on the issue. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 438-39 (1998). Any shortcoming in providing this notice and an opportunity to submit argument and evidence can be cured if the initial decision puts the appellant on notice of her burden to demonstrate timeliness, thus giving her a chance to meet it on review. See Easterling v. U.S.4 Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008). In this case, the initial decision put the appellant on notice of her burden to prove that her petition for enforcement of the settlement agreement was timely filed. CID at 4-5. The appellant proffered her arguments on timeliness in her petition for review. PFR File, Tab 1 at 4-5. As a result, any error by the administrative judge in not providing the appellant notice and an opportunity to respond on this issue below has been cured. In Chudson v. Environmental Protection Agency , 71 M.S.P.R. 115, 118 (1996), aff’d, 132 F.3d 54 (Fed. Cir. 1997) (Table), the administrative judge failed to provide the appellant with notice of the timeliness issue before dismissing his petition for enforcement of a settlement agreement as untimely filed. Yet, the record was developed for the Board to make a finding concerning timeliness on review without a remand, particularly because the appellant’s evidence on review did not differ significantly from what he set forth below, and on review, he had notice of the issue from the initial decision. Id. The instant appeal is similar to Chudson in many regards. On review here, the appellant argues that good cause exists to excuse her untimely filing of her petition for enforcement regarding the lump sum payment breach claim. PFR File, Tab 1 at 4-5. We take the appellant’s arguments into consideration and assess whether she filed her petition for enforcement within a reasonable amount of time after she learned of the supposed breach, which is the appropriate standard. Poett, 360 F.3d at 1380. The appellant’s petition for enforcement regarding the 2015 lump sum payment is untimely, as she did not file it within a reasonable period after she became aware of the supposed breach. The record establishes that the appellant, through her then representative, sent the agency an email on July 10, 2015, claiming that the agency had not complied with the agreement because the appellant did not receive the full $100,000 payment. CF, Tab 8 at 31-32. The appellant herself sent a follow -up email to the agency on July 13, 2015. Id. at 35. The agency responded to the5 appellant on July 10 and July 19, 2015, confirming that it had sent the payment in full, along with an explanation as to why the appellant only received approximately $65,000.2 Id. at 31, 34. This evidence proves that the appellant was aware of the purported breach in July 2015. As noted, the appellant did not file her petition for enforcement until April 2018. CF, Tab 1. She set forth various arguments on review for why it took her almost 3 years to file a petition for enforcement after learning of the claimed breach. PFR File, Tab 1 at 4-5. She first argues that the agency never provided her with a notice of compliance. Id. Yet, as noted, agencies that enter into settlement agreements are not required to serve a notice of compliance. Kasarsky, 296 F.3d at 1335; 5 C.F.R. § 1201.181; see Bostick, 63 M.S.P.R. at 401. Notwithstanding, the record contains emails from the agency sent on July 10 and July 19, 2015, to the appellant and her then representative, confirming the agency’s belief that it had paid the appellant $100,000 in full compliance with the settlement agreement. CF, Tab 8 at 31, 34. The appellant further asserts that she was not informed of the procedures for filing a petition for enforcement. PFR File, Tab 1 at 4-5. However, the administrative judge provided detailed instructions on how to file a petition for enforcement in the initial decision that dismissed the appellant’s removal appeal as settled. ID at 2. Lastly, the appellant’s claim that the agency violated 5 C.F.R. § 1201.181 is misplaced, as this regulation concerns compliance of final orders issued by the Board, not settlement agreements. PFR File, Tab 1 at 4; see Kasarsky, 296 F.3d at 1335 (outlining that an agency is not required to serve a notice of compliance in cases where a settlement agreement is reached). 2 The agency certified the $100,000 payment to the appellant on June 30, 2015; however, the U.S. Department of Treasury, through its Offset Program, recovered $35,024.99 of this payment to satisfy an indebtedness of the appellant. CF, Tab 8 at 34. The appellant received $64,975.01. Id. The record does not reflect the source of the appellant’s indebtedness.6 Thus, the appellant, who was represented by an attorney for much of the relevant proceedings, has not proven that waiting almost 3 years to file her petition for enforcement after she was aware of the supposed breach of the term of the settlement agreement requiring the lump sum payment was reasonable. Dismissal of this portion of her petition for enforcement is warranted. See Chudson, 71 M.S.P.R. at 118-19 (dismissing a petition for enforcement on timeliness grounds that was filed 1 year after the appellant learned of the alleged breach, while noting that the appellant had previous experience litigating before the Board and was represented by counsel). The appellant failed to prove that the agency breached the confidentiality provision of the agreement. The appellant’s initial claim regarding the confidentiality provision consisted of the agency breaching the agreement because it discussed her expunged removal with the Office of Disciplinary Counsel for the District of Columbia’s Board on Professional Responsibility. CF, Tab 1 at 10. The appellant supplemented her claim by adding that the agency also breached the confidentiality provision when it disclosed the existence and the parameters of the settlement agreement to the Office of Disciplinary Counsel. CF, Tab 10 at 9-15. The initial decision addressed the former claim but not the latter. CID at 7-8. An initial decision must contain findings of fact and conclusions of law for the material issues presented in the record, along with the corresponding reasons or bases. Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980). Thus, while we agree with the administrative judge’s overall conclusion that the appellant did not meet her burden of proving that the agency violated the agreement, we modify the analysis to address the appellant’s entire claim pertaining to the confidentiality provision. When an appellant alleges that a settlement agreement has been breached, she bears the ultimate burden of proving the claim by preponderant evidence. Allen v. Department of Veterans Affairs , 112 M.S.P.R. 659, ¶ 7 (2009), aff’d,7 420 F. App’x. 980 (Fed. Cir. 2011). The confidentiality provision at issue states that the agreement “is confidential” and “applies only to communications with third parties.” CF, Tab 8 at 28. In 2015, the appellant admittedly disclosed to the Office of Disciplinary Counsel that she had been removed and entered into a settlement agreement with the agency. CF, Tab 9 at 28. In particular, the appellant stated, “[i]n October 2014, I filed a complaint at Merit System Protection Board for wrongful termination . . . but the case was settled, for a monetary sum, and that my resignation was part of that settlement . . . .” Id. (grammar, spelling, and punctuation as in the original). The Board held in Caston v. Department of the Interior , 108 M.S.P.R. 190, ¶ 21 (2008), that it would be inequitable to require an agency to remain silent in order to adhere to a settlement agreement’s confidentiality provision when the appellant had first violated that provision. We find that this holding from Caston applies to this appeal. After the appellant informed the Office of Disciplinary Counsel of her removal and the existence of the settlement agreement, the agency’s representative later confirmed with the same third party the agreement and the appellant’s resignation in lieu of removal. CF, Tab 9 at 5, 28. Based on the appellant’s earlier disclosure of even more information, the agency was not in breach by confirming the same information to the same third party, as it was no longer under an obligation to keep it confidential. The other topic that the agency discussed with the Office of Disciplinary Counsel pertained to the appellant’s purported unauthorized use of a government-issued phone. Id. at 5-6. The settlement agreement did not preclude the agency from discussing this topic, as it was not the basis for the appellant’s removal or involved in any personnel action covered by the settlement agreement.3 CF, Tab 8 at 21-30. 3 The agency removed the appellant for various charges related to time and attendance matters and abandonment of her position. IAF, Tab 1 at 7-9.8 Notwithstanding, the settlement agreement between the parties was not a “clean record” agreement, and the agency had the right to disclose information to “lawful requestors to whom the Agency is legally obligated to disclose such records.” Id. at 22. Thus, the agency’s actions contested in the appellant’s petition for enforcement regarding the confidentiality provision are not a breach. See Del Balzo v. Department of the Interior , 60 M.S.P.R. 659, 662 n.1 (1994) (stating that there was no reason for the Board to address a breach claim, as even if the settlement agreement prohibited the agency from disclosing to prospective employers the existence of the agreement, the record indicated that the appellant first disclosed the existence of the agreement to the prospective employers). 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain10 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 11 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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.13	Cleaver-Bascombe_KarenDC-0752-15-0034-C-1__Final_Order.pdf	2024-04-16	null	DC-0752-15-0034-C-1	NP
1,757	https://www.mspb.gov/decisions/nonprecedential/Kunwar_Binod_J_DC-0432-21-0201-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BINOD J. KUNWAR, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0432-21-0201-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Matthew E. Hughes , Esquire, Fairfax, Virginia, for the appellant. Taron Murakami , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely filed without good cause shown for the delay in filing. Generally, we grant petitions such as 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 clarify the length of the filing delay and to address the appellant’s arguments raised on review, we AFFIRM the initial decision. BACKGROUND The appellant was a Patent Examiner with the agency’s Patent and Trademark Office. Initial Appeal File (IAF), Tab 1 at 7, 11. On December 3, 2020, the agency issued a decision affirming its proposal to remove him for unacceptable performance, effective December 4, 2020. Id. at 7. The decision letter informed the appellant of his right to file an appeal with various agencies, including the Board, and further notified him that any Board appeal must be filed within 30 days of the effective date of the action, or 30 days after his receipt of the decision, whichever is later. Id. at 8-9. On January 28, 2021, the appellant filed a Board appeal. Id. at 1-3. He argued that he was unable to timely file an appeal due to a delay in his receiving the Standard Form 50 (SF-50) associated with his removal. Id. at 5. The administrative judge notified the appellant that his appeal appeared untimely and informed him of his need to demonstrate either that his appeal was timely filed or establish good cause for a waiver of the filing deadline. IAF, Tab 4 at 1-4. The appellant responded, seemingly requesting an extension of his 3 deadline to respond on the timeliness issue while he sought representation. IAF, Tab 6 at 3. Without responding to the appellant’s request for an extension, the administrative judge issued an initial decision dismissing the appeal as untimely filed.2 IAF, Tab 8, Initial Decision (ID) at 1. The administrative judge found that the appeal was untimely filed by 25 days and that the appellant failed to establish good cause for his untimely filing. ID at 4-5. The appellant has filed a petition for review, arguing both that his appeal was timely filed and that good cause existed for waiving the deadline to file. Petition for Review (PFR) File, Tab 1 at 4-6. The agency has responded to his petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s initial appeal was untimely filed. The Board’s regulations provide that a removal appeal must be filed with the Board no later than 30 days after the effective date of the agency’s action, or 30 days after the date of the appellant’s receipt of the agency decision, whichever is later. Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 13 (2016); 5 C.F.R. § 1201.22(b)(1). The appellant received the agency’s removal decision on December 3, 2020, and that decision stated that his removal would be effective December 4, 2020. IAF, Tab 1 at 5, 7; PFR File, Tab 1 at 3. Thus, any Board appeal was due by January 4, 2021.3 The appellant submitted his appeal on January 28, 2021, and we find his appeal was untimely filed by 24 days.4 IAF, Tab 1. 2 To the extent the administrative judge erred in denying the appellant’s request for an extension of time to respond on the timeliness issue, we find that the appellant was able to fully respond to the issue, with the aid of counsel, in his petition for review. Thus, any such error was harmless. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding an administrative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights). 3 Because the 30th day after the effective date of the removal was a Sunday, his appeal was due the next workday. See 5 C.F.R. § 1201.23. 4 The appellant suggests that his appeal was timely filed because he filed it within 30 days from the receipt of his SF-50, the last document he received associated with the removal decision. PFR File, Tab 1 at 3-6. We disagree. The agency’s decision letter correctly informed him that he must file a Board appeal within 30 days of the effective date “or 30 days after the date you receive this decision, whichever is later.” IAF, Tab 1 at 9 (emphasis added). Under the Board’s regulations, the date of the appellant’s receipt of an SF-50 documenting his removal is irrelevant to determining the time limit for filing an appeal. See 5 C.F.R. § 1201.22(b)(1). The appellant has failed to establish good cause for a waiver of the filing deadline. 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. Pirkkala, 123 M.S.P.R. 288, ¶ 13. 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. Id. Despite the appellant’s pro se status at the time he filed his appeal, the 24-day delay was not minimal. See Rothlisberger v. Department of the Army , 113 M.S.P.R. 450, ¶ 7 (2010) (finding a 14-day delay in filing was not minimal, even considering the appellant’s pro se status). The appellant contends that the agency delayed in providing him the SF-50 associated with his removal, which contributed to his untimely appeal. PFR File, Tab 1 at 5. Although the receipt of his SF-50 was out of his control, there is nothing in the record to support the 4 The initial decision mistakenly states that the appeal was untimely by 25 days. ID at 4. This error is immaterial to the outcome because we find that the appeal was untimely with no good cause shown regardless of whether the delay was 24 or 25 days. 5 appellant’s belief that he needed the SF-50 prior to filing an appeal. ID at 4. We find that the appellant has failed to make even a nonfrivolous allegation that the agency misled him in this regard or otherwise discouraged him from filing an appeal until he had the SF-50.5 PFR File, Tab 1 at 3, 5-6. The Board’s regulations provide that, “if available,” an SF-50 should be included with an initial appeal, but an appellant should not miss the filing deadline “merely because he or she does not currently have all of the documents” to include with the appeal. 5 C.F.R. § 1201.24(a)(7). As discussed above, the appellant had the agency’s decision letter and knew the basis for his removal, his appeal rights, and the time limit for filing a Board appeal by the time he was removed. Under all the circumstances, we conclude that the appellant’s arguments regarding his SF-50 do not establish good cause for his untimeliness. See Paradiso v. Department of the Army , 65 M.S.P.R. 324, 327-28 (1994) (holding that the appellant was not entitled to an extension of the filing deadline in order to wait for the SF-50 documenting the agency’s action), aff’d sub nom. Paradiso v. Merit Systems Protection Board , 61 F.3d 919 (Fed. Cir. 1995) (Table). The appellant also asserts that good cause exists for waiving the time limit because, on December 15, 2020, he emailed his supervisor disputing his removal and requesting his supervisor review his situation; he claims this email should be deemed a misdirected but timely Board appeal of his removal. PFR File, Tab 1 at 5, 9 (citing King v. Department of Justice , 81 M.S.P.R. 435 (1999)). Generally, an appellant’s failure to follow explicit filing instructions does not 5 Thus, we find that the precedent cited by the appellant, Horton v. Department of the Navy, 105 M.S.P.R. 332 (2007), is distinguishable. PFR File, Tab 1 at 5-6. In Horton, the Board found that the time for filing an appeal was appropriately calculated from the date of the appellant’s actual receipt of a copy of the decision notice in part because the agency failed to comply with the appellant’s request to email the decision to him if it were to be issued while he was overseas. Horton, 105 M.S.P.R. 332, ¶ 11 & n.5. In contrast, there is no question that the appellant here timely received the decision letter and he has failed to make a nonfrivolous allegation of any improper agency action that reasonably could have led to his alleged decision to delay filing until he possessed the SF-50 documenting his removal. 6 constitute good cause for any ensuing delay. See, e.g., Sanford v. Department of Defense, 61 M.S.P.R. 207, 209 (1994). Nevertheless, the Board has found good cause for an untimely filed appeal if an appellant files the appeal with the employing agency within the regulatory filing time limit and then files with the Board as soon as he learns of his mistake, and if the agency does not establish that any prejudice would result from waiver of the time limit. E.g., Daniel v. Department of the Treasury , 61 M.S.P.R. 249, 251 (1994); Sanford, 61 M.S.P.R. at 209-10; see also King, 81 M.S.P.R. 435, ¶ 7 (concerning a similar principle in cases involving a misdirected appeal to the Office of Personnel Management (OPM) or an agency acting under a delegation of authority from OPM). We conclude, however, that the appellant has failed to establish that this principle applies to the circumstances of this appeal for the following reasons. The appellant’s email did not represent a clear intention to file a Board appeal. For example, the agency’s removal decision informed the appellant of his right to file an appeal of the agency’s action with several entities, of which the Board was just one. IAF, Tab 1 at 8. The appellant’s email did not reference the Board, and he has not established how the email can be read to intend a Board appeal as opposed to the other available avenues of recourse. PFR File, Tab 1 at 9. Furthermore, the email was sent to the appellant’s supervisor, who was not involved in either the proposed removal or the removal decision. IAF, Tab 7 at 13, 29. The appellant does not explain how this individual would have known of the appellant’s intention to file a Board appeal with this email. Finally, the argument that this email amounted to a Board appeal is belied by the appellant’s other argument that he was waiting to file a Board appeal until he received a final SF-50 from the agency. IAF, Tab 1 at 5; PFR File, Tab 1 at 5. If the appellant indeed was waiting to receive the SF-50 before he filed an appeal, as he argues he was, he could not have intended this email to have been a Board appeal when he had not yet received the SF-50. Therefore, we find that this email did not 7 represent a clear intention to file a Board appeal and it did not amount to a misdirected attempt to file a Board appeal. Having considered the appellant’s arguments and the record in this matter, we find that the appellant has not shown that he exercised due diligence or ordinary prudence in filing his Board appeal. We find no material error in the initial decision, and we dismiss the appeal as untimely by 24 days with no good cause shown for the delay. 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. 8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 9 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Kunwar_Binod_J_DC-0432-21-0201-I-1__Final_Order.pdf	2024-04-16	BINOD J. KUNWAR v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-21-0201-I-1, April 16, 2024	DC-0432-21-0201-I-1	NP
1,758	https://www.mspb.gov/decisions/nonprecedential/Hogan_LisaDC-3443-22-0522-I-1 Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LISA HOGAN, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-3443-22-0522-I-1 DATE: April 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Lisa Hogan , Waldorf, Maryland, pro se. Jonathan Tyler Baldwin , Esquire, Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal with prejudice based on her request for dismissal of the appeal. 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). DISCUSSION OF ARGUMENTS ON REVIEW By letter dated August 24, 2022, the appellant requested that the administrative judge dismiss her appeal so that she could pursue her case in another forum. Initial Appeal File (IAF), Tab 5 at 2. The administrative judge issued an order notifying the appellant of the consequences of her request for dismissal and giving her until October 18, 2022, to rescind her request. IAF, Tab 6 at 1. On October 18, 2022, the administrative judge issued an initial decision dismissing the appeal with prejudice based on the appellant’s request for dismissal. IAF, Tab 7, Initial Decision at 1. Later that day, the appellant submitted a pleading rescinding her request for dismissal and requesting to keep her case open. Petition for Review (PFR) File, Tab 1 at 3-4. She attached numerous documents to her pleading. Id. at 5-12. The Office of the Clerk of the Board docketed the pleading as a petition for review of the initial decision. Id. The agency has filed a response requesting that the appeal be dismissed for lack of jurisdiction. PFR File, Tab 3 at 3-10. The relinquishment of one’s right to appeal to the Board must be by clear, unequivocal, and decisive action. Appell v. U.S. Postal Service , 69 M.S.P.R. 363, 365 (1996). Because the appellant took timely and effective action to rescind her request for dismissal by filing a request to rescind the request during the time period permitted by the administrative judge’s order, we find that her appeal must be reinstated for processing. See Hoke v. U.S. Postal Service , 51 M.S.P.R. 362, 364 (1991). ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. Because the appellant has alleged that she engaged in whistleblowing activity, IAF, Tab 1 at 5, on remand, the administrative judge shall provide the appellant with notice2 of the burdens and methods of proof for establishing jurisdiction over an individual right of action appeal. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.3	Hogan_LisaDC-3443-22-0522-I-1 Remand Order.pdf	2024-04-16	LISA HOGAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-22-0522-I-1, April 16, 2024	DC-3443-22-0522-I-1	NP
1,759	https://www.mspb.gov/decisions/nonprecedential/Wilborn_Shye_L_AT-0752-22-0242-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHYE L. WILBORN, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER AT-0752-22-0242-I-1 DATE: April 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Shye L. Wilborn , Marietta, Georgia, pro se. Kevin Burton , 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 dismissed her involuntary resignation 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 Atlanta Regional Office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND On March 8, 2020, the appellant filed an appeal with the Board, alleging that she was forced to resign from her GS-11 Public Affairs Specialist position with the Department of the Army, Georgia National Guard, due to unlawful discrimination. Initial Appeal File (IAF), Tab 1; Petition for Review (PFR) File, Tab 5 at 9. In her initial appeal, the appellant stated that her employer was the Department of Defense. IAF, Tab 1 at 1. However, the appellant attached a document to her appeal, entitled Second Amended Complaint for Damages,2 identifying her agency as the “Georgia Department of Defense, [] a state agency.” Id. at 4, 6. The administrative judge issued a jurisdictional order, notifying the appellant that the Board may not have jurisdiction over her involuntary resignation, setting forth the applicable legal standard for establishing jurisdiction, and providing her with an opportunity to present evidence and argument establishing a nonfrivolous allegation of jurisdiction. IAF, Tab 3. She then issued a second jurisdictional order, explaining that there was also a question as to whether the appellant was an employee who could exercise Board appeal rights as defined by 5 U.S.C. § 7511 and providing her with an opportunity to present evidence and argument establishing the same. IAF, Tab 5. The appellant’s representative responded to the orders, stating, among other things, that the appellant was an employee of the “Department of Defense, [] a [F]ederal agency” and attaching several documents in which the agency referred to the appellant as a Title 5 employee. IAF, Tab 7 at 6, 42, 49 . Without holding a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID). Specifically, the administrative judge found that the appellant did not establish that she was an employee under 5 U.S.C. § 7511 because 2 The document appeared to be a draft of a filing prepared by an attorney as part of the appellant’s Equal Employment Opportunity Commission case. IAF, Tab 1 at 4-25.2 she represented that she was an employee of the Georgia Department of Defense, and she had provided no support for her later assertion that she was hired by the Department of the Army as a federal civilian technician.3 ID at 2. Furthermore, the administrative judge found that, to the extent that the appellant suggested she was a National Guard technician, the National Guard Technician Act expressly excluded National Guard technicians from the coverage of 5 U.S.C. § 7511. ID at 2-3. Accordingly, the administrative judge found that the appellant had failed to establish that she was an employee under 5 U.S.C. § 7511 and dismissed her appeal for lack of jurisdiction. ID at 3-4. The appellant filed a petition for review, asserting that she was a Title 5 Federal civilian employee with Board appeal rights. PFR File, Tab 5 at 4-6. The appellant also attached several documents to her petition for review, including a copy of the Standard Form 50 (SF-50) documenting her resignation, as well as a February 2018 memorandum stating that the appellant was being converted from a Title 32 excepted service dual status technician to a Title 5 excepted service National Guard employee. Id. at 8-9. The agency did not respond to the appellant’s petition for review. DISCUSSION OF ARGUMENTS ON REVIEW The appellant is an employee under 5 U.S.C. § 7511(a)(1)(C). The administrative judge erred in finding that the appellant was not an employee under 5 U.S.C. § 7511. 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). Only individuals meeting the definition of an “employee” set forth in 5 U.S.C. § 7511 have statutory rights to appeal an adverse action to the Board. 5 U.S.C. §§ 7511(a)(1), 7513(d). The appellant has the burden of proving that the 3 Although the appellant listed the Department of the Army as the agency in the caption of her jurisdictional response, she identified the Department of Defense as her former employing agency in the contents of her response. IAF, Tab 7 at 4, 6. 3 Board has personal jurisdiction over her appeal by preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). The administrative judge erred in finding that the appellant was not a Title 5 employee. ID at 2-3. While, at first, the appellant’s representative appears to have mistakenly identified the agency as the “Georgia Department of Defense, [] a state agency,” she corrected this error in her response to the administrative judge’s jurisdictional orders by clarifying that the agency was the “Department of Defense, [] a [F]ederal agency.” Compare IAF, Tab 1 at 6, with Tab 7 at 6. The appellant also attached several documents to her jurisdictional response proving that she was a Title 5 employee, including a letter from the agency’s Office of the State Judge Advocate stating that the appellant was a “Title 5 civilian in the Georgia National Guard.” IAF, Tab 7 at 42-43. The appellant also provided an email from the same individual, informing an Equal Employment Opportunity Commission administrative judge that the appellant had Board appeal rights. Id. at 49. Therefore, the documents submitted on review, i.e., the SF-50 establishing that the appellant’s resignation was taken under the authority of 5 C.F.R. § 715.202 and the February 2018 memorandum stating that the appellant’s position was converted to a Title 5 excepted service position, merely confirm that the appellant was a Title 5 employee. PFR File, Tab 5 at 8-9. In conclusion, we find that the appellant was an employee under 5 U.S.C. § 7511(a)(1)(C) because she was a Title 5 excepted service National Guard employee for more than 2 years, and thus, she is entitled to Board appeal rights from any adverse action taken under 5 U.S.C. § 7513(d). PFR File, Tab 5 at 8-9; IAF, Tab 7 at 6-7. Accordingly, we remand this matter to the administrative judge. Instructions on remand There appears to be an unresolved issue of timeliness, as the appellant resigned effective December 26, 2021, but filed her appeal on March 8, 2022. PFR File, Tab 5 at 9; IAF, Tab 1. On remand, we direct the administrative judge4 to provide the appellant with the appropriate notice of her burden of proof on timeliness and provide the parties with an opportunity to produce evidence and argument on the same. Recognizing that the issues of timeliness and jurisdiction are often inextricably intertwined in a case such as this, i.e., an involuntary resignation appeal, the administrative judge shall make a finding as to whether the appellant was subject to an appealable adverse action. Petric v. Office of Personnel Management , 108 M.S.P.R. 342, ¶ 6 (2008) (explaining that the issues of jurisdiction and timeliness were inextricably intertwined in a constructive removal case because the resolution of the timeliness issue depends on whether the appellant is subject to an appealable action). If the appellant was subject to an appealable adverse action, the administrative judge shall then make a finding on the issue of timeliness. 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.5	Wilborn_Shye_L_AT-0752-22-0242-I-1__Remand_Order.pdf	2024-04-16	SHYE L. WILBORN v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-22-0242-I-1, April 16, 2024	AT-0752-22-0242-I-1	NP
1,760	https://www.mspb.gov/decisions/nonprecedential/Allred_AmandaSF-1221-22-0301-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AMANDA ALLRED, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-1221-22-0301-W-1 DATE: April 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Kellee B. Kruse , Esquire, Washington, D.C., for the appellant. Roni R. Reed , Esquire, Walla Walla, Washington, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the 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 GS-12 Land Surveyor with the agency. Initial Appeal File (IAF), Tab 1 at 1, 6. The appellant made the following allegations before the administrative judge. In August 2021, the appellant witnessed a coworker, R.B., mishandling expensive equipment. Id. at 7-8. The appellant reported this observation to her supervisor and stated that R.B. had been hostile to her in the field. Id. In September 2021, the appellant told R.B. that he had improperly configured a piece of equipment, which resulted in inconsistencies in his data collection. Id. at 8. R.B. threatened to quit because of the appellant’s comments. Id. On October 13, 2021, the appellant’s supervisor sent her a letter of counseling based, in part, on “condescending and dismissive” behavior toward R.B. in September 2021. Id.; IAF, Tab 6 at 65. On the same day, the appellant’s supervisor asked her to approve land surveys conducted by R.B., which made the appellant uncomfortable because she believed that R.B. was not qualified to complete the surveys without supervision. IAF, Tab 1 at 8-9. On or around December 15, 2021, the appellant learned that R.B. was completing additional unsupervised surveys, which she believed he was unqualified to complete. Id. at 9. The appellant had previously offered to complete the surveys herself, but her supervisor refused to provide the required funding. Id. On or around December 16, 2021,2 the appellant told her supervisor that she would no longer approve R.B.’s surveys if he completed them without supervision. Id. During a meeting with her supervisor on this date, the appellant explained that R.B. “lacked the industry knowledge to complete” the surveys and reiterated her concerns that R.B.’s surveys were not accurate. Id. On January 13, 2022, the appellant sent an email to her supervisor reiterating concerns about the agency’s survey practices, wherein she stated that the agency was not in compliance with relevant law and guidelines. IAF, 2 The appellant asserts in her initial appeal that this event occurred on December 16, 2022. IAF, Tab 1 at 9. This appears to be a typographical error. 3 Tab 7 at 556-57. She stated that land surveys were being conducted without her knowledge or oversight, in violation of numerous policies and the Brooks Act, and that she was improperly being asked to sign off on these projects, which could result in the loss of her professional licenses. Id. The appellant filed a whistleblower retaliation complaint with the Office of Special Counsel (OSC) on January 19, 2022. IAF, Tab 1 at 11. After receiving a close-out letter on February 8, 2022, the appellant filed a Board appeal and requested a hearing. Id. at 2, 11. The administrative judge issued a jurisdictional order and the appellant filed documents and argument in response. IAF, Tabs 3, 6-7, 12. After reviewing the appellant’s pleadings, the administrative judge found that the appellant alleged the following protected disclosures: (1) on or around August 3, 2021, the appellant reported R.B.’s mishandling of agency equipment; (2) in or around September 2021, the appellant disclosed to her supervisor that the agency was using a non-certified land surveyor; (3) on or around September 27, 2021, the appellant reported that R.B. was not properly configuring land survey equipment, which could result in inaccurate results; (4) in or around September 2021, the appellant reported to her supervisor that she was being asked to certify work that she did not oversee in violation of the Code of Ethics of Professional Land Surveyors as outlined by Washington State law; (5) on or around December 16, 2021, the appellant disclosed that allowing R.B. to conduct surveys without supervision violated state law and U.S. Army Corps of Engineers (USACE) manuals and she told her supervisor that she refused to certify land surveys that she did not oversee; (6) on January 12, 2022, the appellant disclosed to the equal employment opportunity (EEO) office that she was being pressured to sign off on surveys she did not oversee; and (7) on or around January 13, 2022, the appellant reiterated to her supervisor by email that the agency was violating ethical standards, USACE engineering manuals, Washington State law, and the Brooks Act. IAF, Tab 15, Initial Decision (ID) at 4-5. The administrative judge found that the appellant 4 alleged the following retaliatory personnel actions: (1) the agency excluded the appellant from projects that require a certified professional land surveyor; (2) the agency repeatedly asked the appellant to sign off on projects that she did not supervise; (3) the agency issued the appellant a letter of counseling on October 13, 2021; (4) the agency refused to authorize funding for the appellant to conduct land surveys in the field; and (5) the agency allowed R.B. to conduct land surveys without the proper authorization.3 ID at 5. Without holding a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID. Regarding the alleged disclosures, the administrative judge found that the appellant proved exhaustion over the September 2021 disclosures, i.e., Disclosures 2-4, and no others. ID at 8-9. She found that the appellant exhausted each of the alleged personnel actions. Id. She found, however, that the appellant failed to nonfrivolously allege that the September 2021 disclosures were protected under 5 U.S.C. § 2302(b)(8). ID at 11-19. Although the administrative judge found that the appellant failed to establish jurisdiction over her appeal because she did not nonfrivolously allege that her disclosures were protected, the administrative judge made an alternative finding that, even if the disclosures were protected, the appellant did not make a nonfrivolous allegation that she was subjected to a personnel action covered by 5 U.S.C. § 2302(a)(2)(A). ID at 19-29. The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 5-6. DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she engaged in whistleblowing activity by making a disclosure 3 On review, the appellant has not challenged the administrative judge’s summary of the alleged disclosures and personnel actions. Petition for Review File, Tab 1 at 10-11. 5 protected 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 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). The question of whether the appellant has made a nonfrivolous allegation at the jurisdictional stage is based on whether she alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1368-69 (Fed. Cir. 2020). Any doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. See Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. For the reasons set forth herein, we find that the appellant has established jurisdiction over her IRA appeal, and we remand the matter to the regional office for a hearing on the merits. The appellant has exhausted her claims with OSC. An appellant in an IRA appeal must exhaust her administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. 5 U.S.C. § 1214(a)(3). The substantive requirements of exhaustion are met when an appellant provided OSC with a sufficient basis to pursue an investigation; however, an appellant may give a more detailed account of her whistleblowing activity before the Board than she did to OSC. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10 (2022). An appellant may demonstrate exhaustion through her initial OSC complaint, correspondence with OSC, or other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the Board appeal. Id., ¶ 11. Exhaustion must be proved by preponderant evidence. Id.; 5 C.F.R. § 1201.57(c)(1). 6 In her OSC complaint, the appellant alleged that the agency was conducting land surveys without her knowledge, excluding her from assignments, and coercing her to sign off on projects that she did not oversee. IAF, Tab 6 at 17, 26. She also stated to OSC that she had reported a hostile coworker and that the agency retaliated against her by issuing a letter of counseling, subjecting her to a hostile work environment, and changing her duties and working conditions. Id. In response to OSC’s preliminary determination, the appellant added that “there are serious ethical concerns and violations that unqualified and inexperienced personnel are performing land surveying without supervision” and that “[t]he letter of counseling referenced in my complaint is only one part of a pattern of harassment that has been ongoing since at least September 2021.” Id. at 58-62. We find that the appellant’s filings were sufficient to provide OSC with a basis to pursue an investigation. See Chambers, 2022 MSPB 8, ¶ 10. The claims raised before the administrative judge, as summarized in the initial decision, ID at 4-5, are substantively similar to the allegations raised before OSC, IAF, Tab 6 at 17, 26, 58-62. Although, in her correspondence with OSC, the appellant did not explicitly reference her allegation that R.B. mishandled equipment in August 2021, we find that OSC had a sufficient basis to pursue an investigation of this allegation because it is part of the same disclosure wherein the appellant complained to her supervisor about R.B.’s hostility, which is explicitly referenced in her OSC complaint. Id. at 26; IAF, Tab 7 at 5 (explaining that the appellant reported to her supervisor that R.B. was hostile to her in the field and that he had mishandled equipment). Accordingly, we find that the appellant has exhausted her alleged protected disclosures with OSC. We also find, as did the administrative judge, that the appellant exhausted the alleged personnel actions with OSC. ID at 9. 7 The appellant nonfrivolously alleged that she made protected disclosures pursuant to 5 U.S.C. § 2302(b)(8). At the jurisdictional stage, an appellant may show that she made a protected disclosure by nonfrivolously alleging that she made a disclosure that she reasonably believed 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. See 5 U.S.C. § 2302(b)(8); see also Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 (2013). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced one of the categories of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶ 24. Disclosure 1 The appellant’s first disclosure concerns R.B.’s alleged mishandling of survey equipment, including “allowing a GPS receive[r] and a range pole, worth over $10,000, to bounce unrestrained in the back of his pick-up truck.” IAF, Tab 1 at 7-8. The appellant stated that she worried about unnecessary damage to the survey equipment, which could impact measurements in the field. IAF, Tab 7 at 5. The appellant has not alleged that the equipment was in fact damaged due to the alleged mishandling. In her jurisdictional response, the appellant argued that R.B.’s mishandling of equipment, “both separated and together” with other allegations, evidence violations of agency guidelines, the Code of Ethics of Professional Land Surveyors, and the minimum standards outlined in Washington State codes, regulations, and law. Id. at 13. Aside from this conclusory allegation, which is insufficient to meet the nonfrivolous allegation standard, the appellant has not explained how R.B.’s behavior violated a law, rule, regulation, or policy. See El 8 v. Department of Commerce , 123 M.S.P.R. 76, ¶¶ 6-8 (2016) (finding that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous allegation pleading standard). To the extent the appellant asserts that R.B.’s conduct, as described in this disclosure, presents a danger to public health and safety, we find that she has failed to make a nonfrivolous allegation of such. In determining whether an appellant has nonfrivolously alleged that a disclosure evidenced a substantial and specific danger to public health or safety, the Board considers the following factors: (1) the likelihood of harm resulting from the danger; (2) when the alleged harm may occur; and (3) the nature of the potential harm. See Skarada, 2022 MSPB 17, ¶ 12 n.3. The appellant’s allegation is so vague that the Board is unable to determine the likelihood of harm resulting from the danger, the imminence of any potential harm, and the nature of the potential harm. Any danger resulting from R.B.’s alleged failure to restrain equipment in his truck is too speculative to support a finding of jurisdiction over this allegation. See Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 10 (2013) (explaining that, although a disclosure of an imminent event is protected, a disclosure of speculative danger is not). Finally, to the extent the appellant alleges that R.B.’s failure to properly restrain equipment constitutes a gross waste of funds, we find that she failed to nonfrivolously allege that the agency expended resources that are significantly out of proportion to the benefit reasonably expected to accrue to the Government. See Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 10 n.3 (2015). Although the appellant has alleged that R.B. mishandled expensive equipment, she has not alleged that the equipment was damaged or destroyed resulting in a loss of funds. Accordingly, we find that the appellant has failed to nonfrivolously allege that this disclosure is protected under 5 U.S.C. § 2302(b)(8). 9 Disclosures 2-7 The appellant’s remaining disclosures involve concerns regarding the agency’s selection of personnel to conduct land surveys, inaccurate survey results, and improper requests for the appellant to sign off on surveys that she did not oversee. ID at 4-5. Although the appellant made these disclosures on several dates between September 2021, and January 2022, the subject of the disclosures is similar, and thus, we consider them together. Id. The core of the appellant’s complaints was that unlicensed and/or unqualified personnel were performing work that required licensing. IAF, Tab 7 at 556, Tab 12 at 6, 20. She alleged, both to the agency and in her jurisdictional response before the administrative judge, that R.B. was not qualified to conduct land surveys on his own and that the agency improperly asked her to sign off on surveys that she did not oversee, which put her license at risk. IAF, Tab 7 at 556. She also alleged that she observed R.B. improperly configuring equipment, which resulted in inconsistencies in his data collection. Id. at 5-6. She alleged that one of the agency’s projects involved pump plants, which controlled the water level of levies, and that incorrect measurements by as little as 1/1,000th of a foot could cause flooding, like the damage caused by Hurricane Katrina in New Orleans. Id. at 5. The appellant alleged that the agency’s conduct violated agency policy, the Brooks Act, and unspecified provisions of Washington State law. Id. at 556-57. At this stage, we assume to be true the appellant’s allegations that some surveying projects required licensing and that the agency ignored these requirements. IAF, Tab 12 at 6; see Hessami, 979 F.3d at 1369. These allegations appear to be supported by the record evidence. E.g., IAF, Tab 7 at 38 (discussing projects requiring licensed surveyors in an agency policy manual). The appellant has cited to several sections of the Brooks Act, which appear to apply to procurement of Federal contracts for architectural and engineering 10 services. Id. at 8 (citing 40 U.S.C. §§ 1101-1104). Even if the Brooks Act does not directly apply to this situation, we believe the cited provisions are instructive. 40 U.S.C. § 1102 contemplates “professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described,” to include surveying and mapping. This seems to support the appellant’s assertion that certain surveying activities required a licensed professional. Although the appellant has not identified with specificity which sections of Washington State law she believes the agency violated, that is not required at the jurisdictional stage. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010). We find that the appellant has alleged sufficient facts, accepted as true, to find that she made protected disclosures concerning work that was performed by unlicensed surveyors. The appellant has also asserted that her disclosures about R.B.’s incorrect measurements constitute a nonfrivolous allegation that she disclosed a substantial and specific danger to public health and safety. PFR File, Tab 1 at 17-19. On review, the appellant directs the Board’s attention to emails with her supervisor in September and October 2021, wherein she alleged that R.B. submitted incorrect measurements for a pump plant project. IAF, Tab 10 at 28-31. The appellant has asserted that the data and measurements in this project must be extremely accurate in order to avoid flooding, which could be catastrophic to the surrounding areas. IAF, Tab 1 at 7, Tab 7 at 5. In Skarada, 2022 MSPB 17, ¶ 12 n.3, the Board found that the appellant nonfrivolously alleged that his disclosure about a cognitively impaired physician implicated a substantial and specific danger to public health and safety because it “could undoubtedly lead to immediate and serious harm to patients.” Although the appellant’s allegation concerning R.B.’s allegedly inaccurate measurements was not well developed before the administrative judge, we acknowledge that, accepting as true the appellant’s allegation that inaccurate measurements could 11 cause catastrophic flooding, this could implicate loss of life and/or property, and therefore the appellant has nonfrivolously alleged that she disclosed a substantial and specific danger to public health and safety. The appellant has nonfrivolously alleged that the agency subjected her to a personnel action. In the initial decision, the administrative judge found that the appellant failed to nonfrivolously allege that the agency subjected her to a personnel action. ID at 19-29. Specifically, she found that, considered individually, none of the appellant’s allegations met the definition of personnel action as defined by 5 U.S.C. § 2302(a)(2)(A)(i)-(xi), and that, considering the appellant’s allegations collectively, she failed to allege that she was subjected to a hostile work environment that changed her duties, responsibilities, or working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii). We disagree because the written counseling issued to the appellant is a personnel action. ID at 22. In Johnson v. Department of Health and Human Services, 93 M.S.P.R. 38, ¶¶ 15-16 (2002), the Board found that, for purposes of jurisdiction, a letter of admonishment warning the appellant that his continued failure to follow established procedures could result in discipline was a personnel action because it sought to change the appellant’s behavior. Similarly, the written counseling issued to the appellant in this case warned that “[f]urther episodes that involve discourtesy towards your coworkers may result in disciplinary actions being taken against you, up to and including removal from Federal Service.” IAF, Tab 7 at 19. We therefore find that the appellant has nonfrivolously alleged that she was subjected to a personnel action when she was issued a letter of counseling. Further, we find that the appellant nonfrivolously alleged that she was subjected to a significant change in her duties, responsibilities, and working conditions. In Skarada, the Board found that the appellant nonfrivolously alleged that he suffered a significant change in his duties, responsibilities, and working 12 conditions, wherein he alleged that his chain of command directed him to stop attending certain meetings and performing “extra duties,” and excluded him from the hiring and interview process for two new hires. Skarada, 2022 MSPB 17, ¶¶ 15-17. Similarly, here, we have considered the alleged personnel actions collectively, and we find that the appellant has nonfrivolously alleged that her working conditions were changed when she received a letter of counseling, was denied funding to complete projects, was not assigned to projects, and was repeatedly asked to certify work that she believed she could not certify, resulting in risk to her professional licenses. ID at 5. Accordingly, the appellant has nonfrivolously alleged that she was subjected to personnel actions as defined by 5 U.S.C. § 2302(a)(2)(A)(xii). The appellant has nonfrivolously alleged that her protected disclosures were a contributing factor to the alleged personnel actions. In order to meet the contributing factor jurisdictional element, an appellant may raise a nonfrivolous allegation that the fact of, or content of, the protected whistleblowing was one factor that tended to affect the personnel action in any way. Baldwin, 113 M.S.P.R. 469, ¶ 22. One way that the appellant may do this is through the knowledge/timing test, by nonfrivolously alleging that the official taking the personnel action knew of the whistleblowing and that the personnel action occurred within a period of time such that a reasonable person could conclude that the whistleblowing was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1). The knowledge/timing test is not the only way to demonstrate the contributing factor element. 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 official taking the action, or whether these individuals had a desire or motive to retaliate against the appellant. Id., ¶ 15. 13 With the exception of Disclosure 6, which was made to the EEO office, the appellant has alleged that she communicated each of the alleged disclosures to her supervisor, who she claims is responsible for taking the alleged personnel actions. IAF, Tab 1 at 6-11, Tab 7 at 4-8. She has therefore nonfrivolously alleged the knowledge element for those disclosures. Regarding timing, the appellant has alleged that her supervisor issued her a counseling letter approximately 2 weeks after she complained that the agency was using unqualified personnel to conduct land surveys, and that, between October 2021 and January 2022, she was subjected to a hostile work environment consisting of exclusion from projects, denial of funding, and repeated requests to sign off on projects that she did not oversee. IAF, Tab 6 at 65, Tab 7 at 4-8. The close temporal proximity between the alleged disclosures and the personnel actions satisfies the timing element. See Easterbrook v. Department of Justice , 85 M.S.P.R. 60, ¶ 10 (2000) (finding that a personnel action taken within 7 months of the protected disclosure satisfied the knowledge/timing test). We find that the appellant has not nonfrivolously alleged that Disclosure 6 was a contributing factor to the alleged personnel actions because she has not satisfied the knowledge/timing test or provided other circumstantial evidence to support a nonfrivolous allegation of the contributing factor element. See Dorney, 117 M.S.P.R. 480, ¶ 14. 14 ORDER As set forth herein, we find that the appellant has established jurisdiction over Disclosures 2-5 and 7, and each of the alleged personnel actions. Accordingly, we remand this case to the regional office for a hearing on the merits in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Allred_AmandaSF-1221-22-0301-W-1__Remand_Order.pdf	2024-04-16	AMANDA ALLRED v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-22-0301-W-1, April 16, 2024	SF-1221-22-0301-W-1	NP
1,761	https://www.mspb.gov/decisions/nonprecedential/Linton_RobertSF-315H-19-0008-I-1 Final Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROBERT LINTON, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-315H-19-0008-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Emmett Linton, Sr. , Tacoma, Washington, for the appellant. Meredith R. McBride , Esquire, Bremerton, 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 dismissed his probationary termination appeal for lack of jurisdiction. On petition for review, the appellant reargues the merits of the agency’s decision to terminate him, but he does not challenge the administrative judge’s findings concerning the dispositive jurisdictional issue . 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). 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. 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	Linton_RobertSF-315H-19-0008-I-1 Final Order.pdf	2024-04-16	ROBERT LINTON v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-19-0008-I-1, April 16, 2024	SF-315H-19-0008-I-1	NP
1,762	https://www.mspb.gov/decisions/nonprecedential/Cooksey_Douglas_T_CH-1221-22-0067-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DOUGLAS T. COOKSEY, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER CH-1221-22-0067-W-1 DATE: April 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Douglas T. Cooksey , Taylorsville, Kentucky, pro se. Danielle Huckleberry , Crane, Indiana, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND this matter to the Central 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 DISCUSSION OF ARGUMENTS ON REVIEW To establish jurisdiction in a typical IRA appeal, an appellant must show by preponderant evidence2 that he exhausted his administrative remedies before the Office of Special Counsel (OSC) and make nonfrivolous allegations of the following: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14. A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020) (holding that “when evaluating the Board’s jurisdiction over a whistleblower action, the question of whether the appellant has non -frivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the [appellant] alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face”). Generally, the Board will consider an allegation nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that is more than conclusory, plausible on its face, and material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). Any doubt or ambiguity as to whether the appellant made nonfrivolous allegations of IRA jurisdiction should be resolved in favor of affording the appellant a hearing . Grimes v. Department of the Navy, 96 M.S.P.R. 595, ¶ 12 (2004). In the initial decision, the administrative judge concluded that the appellant failed to make a nonfrivolous allegation that he had made 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); accordingly, she dismissed the 2 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3 matter for lack of jurisdiction. Initial Appeal File (IAF), Tab 24, Initial Decision (ID) at 10-21. The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply to the agency’s response. Petition for Review (PFR) File, Tabs 1, 3-4. In his petition and reply, the appellant argues the following: (1) the administrative judge erred in adjudicating his motions; (2) the administrative judge erred with regards to the parties’ status conference; (3) he made a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8); and (4) he made a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302(b)(9)(D).3 PFR File, Tab 1 at 4-32, Tab 4 at 4-15. The appellant’s assertions regarding his motions do not warrant a different outcome. The appellant contends that the administrative judge erred in adjudicating four motions that he filed, all of which related, in some capacity, to the agency representative untimely filing the agency’s “Designation of Representative” form and failing to provide her complete contact information on the form. PFR File, Tab 1 at 5-7; IAF, Tabs 8-12.4 The appellant contends that, because of these errors, the administrative judge should have, among other things, rejected the 3 We have considered the additional arguments raised by the appellant on review, including his claim that the agency should have advised him of his right to file a complaint with OSC, PFR File, Tab 1 at 31; however, we find that none of these arguments compel a different outcome. 4 The appellant also asserts that the agency representative falsely claimed in a filing that the appellant already had her contact information because she had been the agency representative for prior complaints that he had filed. PFR File, Tab 1 at 7, Tab 4 at 11; IAF, Tab 15 at 5. The appellant avers that he has not filed any prior complaints and seemingly argues that agency counsel’s false perception that he has done so establishes Board jurisdiction over this matter. PFR File, Tab 1 at 7 . We disagree. To the extent the appellant also argues that the agency’s insinuation that he has filed prior complaints either rendered the administrative judge biased against him or that there was otherwise improper contact between the administrative judge and the agency, id. at 7-10, we find his arguments both unsubstantiated and unavailing, see Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 19 (2013) (finding that broad and general allegations of bias are insufficient to overcome the presumption of honesty and integrity). 4 agency’s pleadings and ruled in his favor. E.g., PFR File, Tab 1 at 8, 12-15. We disagree. Following a telephonic status conference, the administrative judge issued an order that addressed the appellant’s contention that the agency had failed to properly designate a representative. IAF, Tab 19 at 2-4. The administrative judge explained that, although the agency erred by failing to include the representative’s contact information, the error was correctible; accordingly, she provided agency counsel’s contact information in her order and denied the appellant’s four motions stemming from the agency’s oversight. Id. at 2-4 & n.1. We discern no basis to disturb her rulings. See Key v. General Services Administration, 60 M.S.P.R. 66, 68 (1993) (stating that an administrative judge has broad discretion in controlling the proceedings before her). Moreover, the Board cannot, as the appellant seemingly requests, find jurisdiction over his allegations as a remedy for the agency’s errors. See Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (explaining that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation). In any event, the appellant fails to show that any of the agency’s alleged errors or omissions precluded him from making nonfrivolous allegations relevant to the jurisdictional issue.5 See Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 13 (2006) (finding that, when an appeal is dismissed for lack of jurisdiction, there is no prejudice to an appellant’s 5 The appellant relatedly argues that the administrative judge failed to rule on two other filings that he submitted. PFR File, Tab 1 at 13, 30; IAF, Tabs 20-21. In these filings, the appellant (1) objected to the administrative judge’s denial of his motions and (2) requested that the administrative judge order the agency to comply with 5 C.F.R. § 1201.25, a Board regulation that pertains to the contents of an agency’s response. IAF, Tabs 20-21. We find the appellant’s arguments regarding these filings unavailing, and we deny the latter request. Indeed, the appellant fails to show that any of the administrative judge’s purported errors that he identifies on review precluded him from making nonfrivolous allegations relevant to the jurisdictional issue. PFR File, Tabs 1, 4; see Karapinka v. Department of Energy , 6 M.S.P.R. 124 (1981) (explaining that the administrative judge’s procedural error is of no legal consequence unless it is shown to have adversely affected a party’s substantive rights). 5 substantive rights based on the absence of discovery that did not seek information that would establish the Board’s jurisdiction). Thus, his assertions are unavailing. The appellant’s assertions regarding the parties’ status conference do not warrant a different outcome. The appellant identifies a series of purported errors related to the parties’ telephonic status conference; however, we find that none of these alleged errors warrant a different outcome. PFR File, Tab 1 at 8-9. For example, the appellant argues that the administrative judge stated in her order memorializing the parties’ conference that she would schedule a follow-up conference; however, she never did. Id. at 9. The appellant asserts that, as a result of this statement, he believed that he would have another opportunity to “discuss the record with the [administrative judge and the agency], to ensure that the material facts of the case [were] being correctly interpreted.” Id. The administrative judge stated as follows in the subject order: “After February 7, 2022 I will issue an order detailing what, if any, claims the Board has jurisdiction over and I will schedule our next status conference to discuss the case process moving forward including discovery and prehearing and hearing deadlines.” IAF, Tab 19 at 2. Although the administrative judge referenced a subsequent status conference, the language of her order indicated that the subject of any such conference would be discovery and deadlines, i.e., she did not indicate that it would be an opportunity for the appellant to clarify his jurisdictional allegations. Id. Thus, we find unavailing the appellant’s assertion that the administrative judge either misled him or improperly denied him an opportunity to present his case. See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant in an IRA appeal 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); see also Oscar v. Department of 6 Agriculture, 103 M.S.P.R. 591, ¶ 7 (2006) (explaining that an appellant is not entitled to a hearing on the threshold issue of jurisdiction because the Board has jurisdiction over such an appeal only if the appellant makes the requisite nonfrivolous allegations, and whether allegations are nonfrivolous is determined on the written record). The appellant’s assertions that he made a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) are unavailing. The appellant’s assertions regarding his second alleged protected disclosure are unpersuasive.6 The appellant challenges the administrative judge’s conclusion that he failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) via what he categorized as “Disclosure #2.” PFR File, Tab 1 at 20-25; IAF, Tab 4 at 18. Regarding this disclosure, the appellant alleged before the administrative judge that, in a January 8, 2019 request for reconsideration of an incentive pay decision, he disclosed issues regarding reasonable accommodation, a hostile work environment, and a systemic policy of discrimination towards employees with disabilities. IAF, Tab 4 at 18, Tab 5 at 14-15. We agree with the administrative judge’s conclusion that these disclosures do not fall under 5 U.S.C. § 2302(b)(8); indeed, the Board’s IRA jurisdiction does not extend to claims of reprisal for opposing practices made unlawful by the Rehabilitation Act. ID at 17-18; see McCray v. Department of the Army, 2023 MSPB 10, ¶¶ 19-22. On review, the appellant describes his second disclosure differently; indeed, he alleges that this disclosure also pertained to his supervisor’s failure to consider a large portion of his job duties when evaluating his fiscal year 2018 performance. PFR File, Tab 1 at 20-22; IAF, Tab 4 at 18. In so alleging, the appellant draws the Board’s attention to a particular document in the record and 6 The appellant does not discernably challenge the administrative judge’s conclusions regarding what he identified as his first disclosure, and we discern no basis to disturb them. IAF, Tab 4 at 5; ID at 4-5, 10-14. 7 avers that he disclosed his supervisor’s failure to consider his “total job performance” for the relevant rating period in this document. PFR File, Tab 1 at 20-21 (citing IAF, Tab 5 at 14). Even assuming that this recharacterized disclosure does not similarly fall under the purview of the Rehabilitation Act and therefore outside of the Board’s IRA jurisdiction, we find that the appellant’s assertions do not constitute a nonfrivolous allegation of a protected disclosure.7 A protected disclosure is one that an appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining whether an appellant had a reasonable belief that his disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5. The appellant’s allegations on review, which recharacterize the subject disclosure, do not warrant a different outcome. PFR File, Tab 1 at 20-25; IAF, Tab 4 at 18; see Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (indicating that an appellant is required to articulate claims with reasonable clarity and that the Board is not obligated to pore through a voluminous record to make sense of various allegations); see also Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). In any event, even if the appellant had timely raised these allegations with the administrative judge, we find that they do not amount to a nonfrivolous allegation of a protected disclosure 7 Indeed, the appellant seemingly alleges that the agency purposefully altered his job functions due to disability discrimination and retaliation for requesting a reasonable accommodation. PFR File, Tab 1 at 22-24; see McCray, 2023 MSPB 10, ¶ 22. 8 under 5 U.S.C. § 2302(b)(8). To this end, although the appellant contends that he disclosed a violation of an Office of Personnel Management regulation pertaining to performance ratings, i.e., 5 C.F.R. § 430.208, the document that he references evinces that he merely stated that, according to an agency manager, consideration had not been “given to [his] accomplishments . . . for approximately 8 months of the rating period.”8 IAF, Tab 5 at 14. We find that this statement does not amount to a nonfrivolous allegation of a violation of law, rule, or regulation, or any of the other categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). See Gryder v. Department of Transportation , 100 M.S.P.R. 564, ¶ 13 (2005) (finding that the appellant’s conveyance of his disagreement with the agency’s decision not to rehire him did not amount to a protected disclosure). The appellant’s assertions regarding his third alleged disclosure are unavailing. The appellant challenges the administrative judge’s conclusion that he failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) via what he categorized as “Disclosure #3.” PFR File, Tab 1 at 25-27. In this regard, he asserts that he disclosed that he was “not in a paid work status” while performing official work tasks, i.e., working on an equal employment opportunity (EEO) matter. Id. Again, even assuming that this disclosure does not fall under the purview of the Rehabilitation Act and therefore outside of the Board’s IRA jurisdiction, see McCray, 2023 MSPB 10, ¶ 22, we nonetheless find that the appellant’s assertions do not constitute a nonfrivolous allegation of a protected disclosure. To this end, the appellant averred before the administrative judge that he made the subject disclosure in a January 4, 2019 8 We are mindful of the Federal Circuit’s decision in Hessami, wherein the court explained that our jurisdictional determination in an IRA appeal “must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami, 979 F.3d at 1369. However, we need not consider an appellant’s allegations “in a vacuum.” Id. at 1369 n.5. Therefore, we find it appropriate to look beyond the appellant’s characterization of his disclosure on review to consider the document itself, which shows that the disclosure was not exactly as the appellant has described. 9 email. IAF, Tab 4 at 9, 43-47. In this email, the appellant stated as follows: “[w]ith the exception of three days for mandatory training last week and today, I have been forced to take leave since 11 Dec 2018, even though I have continued to support my [reasonable accommodation] request in good faith and expeditiously, as required.” Id. at 46. He later asserted as follows in the same email: “I have requested a NWA9 charge # to cover the required vast amounts of time that I have spent while on leave, but one has not been provided.” Id. We discern no basis to disturb the administrative judge’s conclusion that these vague statements pertained to, at most, an outstanding administrative billing issue, i.e., not a violation of law, rule, or regulation, or any of the other categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). ID at 16; see El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 8 (2015) (finding that an employee’s disclosures pertaining to delays in reimbursing his travel expenses only vaguely alleged wrongdoing and thus failed to nonfrivolously allege a violation of law, rule, or regulation), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Thus, the appellant’s assertions in this regard do not provide a basis to disturb the initial decision. The appellant’s allegations regarding his fourth disclosure do not warrant a different outcome. The appellant challenges the administrative judge’s conclusion regarding what he categorized as his fourth disclosure. PFR File, Tab 1 at 27-30; ID at 18-19 & n.4. This disclosure related to statements made by the appellant’s former attorney in a May 24, 2019 letter addressed to an agency commanding officer. PFR File, Tab 1 at 27-30; IAF, Tab 4 at 22, Tab 5 at 21-24. The appellant asserts that this letter disclosed the following: (1) the agency was wasting public funds; (2) the agency had committed a Privacy Act violation; and (3) his supervisor had falsified a Government document. PFR File, Tab 1 at 28-29. For the reasons discussed below, we find that the appellant’s assertions 9 The appellant’s filings suggested that, in this context, “NWA” referred to a labor/billing code that the appellant needed to account for work time spent on EEO-related matters. IAF, Tab 5 at 5-8. 10 regarding his fourth disclosure do not constitute a nonfrivolous allegation of a protected disclosure. Regarding the agency’s purported wasting of public funds, the appellant directs the Board’s attention to the fact that, in the May 24, 2019 letter, his attorney stated that he had requested certain records from the agency because the “records [were] required to establish that [the] Command ha[d] fostered an environment of liberal reporting and improper use of labor funding.”10 PFR File, Tab 1 at 28; IAF, Tab 5 at 23. We find that this vague statement does not amount to a protected disclosure under 5 U.S.C. § 2302(b)(8). See Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶¶ 7-9 (2016) (concluding that the appellant failed to make a nonfrivolous allegation that he reasonably believed he had disclosed a violation of law when he made vague allegations of wrongdoing and referenced broad statutory provisions). Indeed, although the appellant has explained to the Board why he believes that the agency was wasting funds and improperly using labor charge codes, he did not discernably identify any disclosures concerning these alleged improprieties apart from his attorney’s statement regarding the need for agency records in order to “establish” that funding improprieties were occurring at the appellant’s employing agency. IAF, Tab 4 at 26-27, Tab 5 at 23; see Doster v. Department of the Army , 56 M.S.P.R. 251, 253-54 (1993) (concluding that the Board lacked jurisdiction when the appellant’s filings contained a litany of allegations of agency improprieties but failed to discernably allege any protected disclosures regarding the same). Regarding his alleged protected disclosure concerning the Privacy Act, the appellant seemingly argues that, although his attorney referenced a “HIPPA [sic] violation” in the May 24, 2019 letter, his attorney intended to refer to a Privacy Act violation and, therefore, made a protected disclosure related thereto. PFR File, Tab 1 at 29-30. He also reasserts that agency personnel improperly accessed 10 The letter referenced an email wherein an agency employee requested that agency personnel use a particular time code so that unused money would not have to be returned “to the program office.” IAF, Tab 5 at 9, 23. 11 and discussed his medical information, ostensibly in violation of the Privacy Act. Id.; IAF, Tab 4 at 25. We find the appellant’s assertions unavailing; indeed, the sole disclosure that he discernably identifies regarding the agency’s purported mishandling of his information is the May 24, 2019 letter wherein his attorney referred to unspecified, “very serious allegations pertaining to violations of” the Health Insurance Portability and Accountability Act of 1996. IAF, Tab 5 at 21; see El, 123 M.S.P.R. 76, ¶ 6 (explaining that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction) ; Doster, 56 M.S.P.R. at 253-54. Thus, the appellant’s assertions do not warrant a different outcome. Lastly, the appellant draws the Board’s attention to the fact that his former attorney stated as follows in the May 24, 2019 letter: “[I]t appears that [the appellant’s supervisor] has misrepresented herself by digitally signing Ref (E) on May 1, 2019 at 16:28:30, certifying she had met with [the appellant] to discuss the document.”11 PFR File, Tab 1 at 27-28; IAF, Tab 5 at 23. The appellant contends that, through this statement, he disclosed that the agency had falsified a document. PFR File, Tab 1 at 28. We find these contentions unavailing; indeed, the appellant presents this allegation differently on review. To this end, he did not discernably allege before the administrative judge that the agency had retaliated against him as a result of a protected disclosure concerning this document; rather, as discussed herein, he alleged that the agency had retaliated against him because he had engaged in protected activity by refusing to sign this document upon his supervisor’s request.12 IAF, Tab 4 at 4, 22, 28; see Keefer, 11 The appellant submitted into the record a copy of “Ref (E),” i.e., a document setting forth his performance standards for the period of October 28, 2018, to September 30, 2019. IAF, Tab 4 at 50-51. 12 Regarding his fourth disclosure, the appellant provided a general list of several issues that he believed that his attorney had disclosed on his behalf in the letter. IAF, Tab 4 at 22. Although the appellant listed “falsifying records,” he did not identify the “records” to which he referred. 12 92 M.S.P.R. 476, ¶ 18 n.2; Banks, 4 M.S.P.R. at 271. In any event, even assuming the appellant had timely made this allegation, a different outcome would not be warranted. To this end, the May 24, 2019 letter indicates that the appellant’s attorney, through the above statement, was disclosing EEO retaliation. IAF, Tab 5 at 23; see Hessami, 979 F.3d at 1369 n.5 (stating that the Board need not consider an appellant’s allegations “in a vacuum”). Indeed, this portion of the letter asserted that the appellant had been “selectively discriminated and retaliated against for filing a lawful . . . Reasonable Accommodation Request.” IAF, Tab 5 at 23. The letter also stated as follows: “[the appellant] has made numerous oral reasonable accommodation requests, and as a result, has been retaliated against by your management team.” Id. The letter subsequently referenced the appellant’s supervisor’s certification of “Ref (E)” and, among other things, sought for the appellant both “protection from further retaliation” and “protection from [his supervisor].” Id. at 23-24. Accordingly, this disclosure falls outside of the Board’s IRA jurisdiction. See McCray, 2023 MSPB 10, ¶ 22 (concluding that the Board’s IRA jurisdiction does not extend to claims of reprisal for complaining of practices made unlawful by the Rehabilitation Act); see also Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 44 (explaining that requesting a reasonable accommodation is protected under the Rehabilitation Act). We find that the appellant made a nonfrivolous allegation that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D). The appellant reasserts that he made a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302(b)(9)(D) by alleging that he refused to comply with his supervisor’s order that he sign his 2019 performance goal document. PFR File, Tab 1 at 16-20; IAF, Tab 4 at 28, 50-51. The appellant argues that his supervisor asked him to sign this document, i.e., to certify that he had met with her to discuss his performance standards; however, because he and his supervisor had not actually met, he refused to do so. PFR File, Tab 1 at 16-17. He avers 13 that signing the form as directed would have caused him to falsify a Government record.13 Id. at 16-18. The relevant statutory provision, 5 U.S.C. § 2302(b)(9)(D), protects employees from retaliation for “refusing to obey an order that would require the individual to violate a law, rule, or regulation.” Although the appellant does not identify the law, rule, or regulation that he would have violated had he falsely certified this document, we find that he was not required to do so because the false certification of a document clearly implicates the statute. See DiGiorgio v. Department of the Navy , 84 M.S.P.R. 6, ¶ 14 (1999). Accordingly, we find that the appellant made a nonfrivolous allegation that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D).14 We also find that the appellant has satisfied the contributing factor and personnel action jurisdictional criteria with respect to this alleged protected activity. To this end, the appellant seemingly asserted that, as a result of this activity, his supervisor did not provide him with his 2019 performance evaluation or an “incentive pay” decision. IAF, Tab 4 at 29. Both (1) the failure to provide a performance evaluation and (2) a decision concerning pay/a monetary award constitute a “personnel action” under the statute. See 5 U.S.C. § 2302(a)(2)(A)(viii), (ix). The appellant also asserted that, as a result of this activity, his supervisor “finally signed” a letter denying his request for a reasonable accommodation, i.e., telework. IAF, Tab 4 at 28-29. In this regard, the appellant appears to be alleging that his 5 U.S.C. § 2302(b)(9)(D) activity contributed to a significant change in his working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii). We make no finding that the denial of a reasonable 13 The document indicates that the appellant was asked to sign/certify the following statement: “I certify my Supervisor has met with me to establish and discuss performance standards and [expectations].” IAF, Tab 4 at 50-51. 14 In the initial decision, the administrative judge found that the appellant had not made a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302(b)(9)(D) because, among other reasons, he did not specifically allege that “he communicated his refusal to sign the document” to his supervisor. ID at 19-20. We disagree with this finding, which conflates the appellant’s protected activity with the contributing factor jurisdictional criterion. 14 accommodation constitutes a personnel action under the statute; however, we find that, at the jurisdictional stage, the appellant’s allegations are sufficient and that the parties may develop this issue on remand. See Reid v. Merit Systems Protection Board , 508 F.3d 674, 679 (Fed. Cir. 2007) (declining to consider an allegation of a denial of reasonable accommodation for a disability as a “personnel action”). Accordingly, we find that the appellant made a nonfrivolous allegation that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D) that contributed to both (1) the agency’s failure to provide him with a 2019 performance review and (2) the agency’s failure to provide him with incentive pay.15 Thus, we find that he is entitled to his requested hearing and a decision of these claims. IAF, Tab 1 at 2; see Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a hearing, the administrative judge shall afford the parties a reasonable opportunity to complete discovery and order the parties to submit any other evidence that she deems necessary to adjudicate the merits of this appeal. See Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 14 (2016). 15 We also find that the appellant proved by preponderant evidence that he exhausted all of these claims with OSC. IAF, Tab 1 at 15, Tab 4 at 28; see Chambers, 2022 MSPB 8, ¶ 11. 15 ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order.16 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 16 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order.	Cooksey_Douglas_T_CH-1221-22-0067-W-1__Remand_Order.pdf	2024-04-16	DOUGLAS T. COOKSEY v. DEPARTMENT OF THE NAVY, MSPB Docket No. CH-1221-22-0067-W-1, April 16, 2024	CH-1221-22-0067-W-1	NP
1,763	https://www.mspb.gov/decisions/nonprecedential/Stinchcomb_Carol_R_DA-0714-21-0067-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CAROL R. STINCHCOMB, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-0714-21-0067-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 C arol R. Stinchcomb , Oklahoma City, Oklahoma, pro se. Patrick A. Keen , Esquire, Shreveport, Louisiana, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal as barred by the doctrine of collateral estoppel. 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 On August 5, 2020, the agency removed the appellant from her position as a Supervisory Medical Support Assistant, pursuant to 38 U.S.C. § 714. Initial Appeal File (IAF), Tab 1 at 2, Tab 6 at 11-12. As set forth in the decision notice, an appeal of such an action is generally required to be filed within 10 business days of the effective date of the action. 38 U.S.C. § 714(c)(4)(B); IAF, Tab 6 at 13. The appellant appealed her removal on August 20, 2020, and the administrative judge issued an initial decision on October 2, 2020, dismissing the appeal as untimely filed under 38 U.S.C. § 714(c)(4)(B). Stinchcomb v. Department of Veterans Affairs, MSPB Docket No. DA-0714-20-0501-I-1, Initial Decision (Oct. 2, 2020). That decision became final on November 6, 2020, when neither party filed a petition for review. Id. at 4. On November 13, 2020, the appellant filed the instant appeal, again challenging her removal. IAF, Tab 1. The administrative judge issued an order on timeliness, instructing the appellant to file evidence and argument showing that good cause existed for the filing delay, and an order on the Board’s preclusion doctrines, ordering her to file evidence and argument to show good cause why her appeal should not be dismissed on either collateral estoppel or res judicata grounds. IAF, Tabs 3, 8. The appellant did not respond to either order. Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, on January 4, 2021, the administrative judge issued an initial decision dismissing the appellant’s appeal as barred by the doctrine of collateral estoppel, IAF, Tab 9, Initial Decision (ID). She also noted that, even if the appellant was not collaterally estopped from relitigating her claim, her appeal was otherwise untimely filed under 38 U.S.C. § 714, and she has not shown that the doctrine of equitable tolling should apply to excuse the delay. ID at 3 n.*. The administrative judge informed the appellant that any petition for review of the initial decision must be filed no later than February 8, 2021, and included instructions on how to do so. ID at 4-6. 3 On February 13, 2021, the appellant filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1 at 4. Therein, she again challenged her removal and argued that it was taken in reprisal for filing a whistleblower complaint and that it was based on systemic racism. Id. at 1. In a letter acknowledging the appellant’s submission, the Acting Clerk of the Board notified the appellant that her petition for review was untimely filed. PFR File, Tab 2 at 2. The letter explained to the appellant that the Board’s regulations require a petition for review that appears untimely to be accompanied by a motion to accept the filing as timely and/or to waive the time limit for good cause, and set a deadline for the appellant to file such a motion. Id. It also informed the appellant of what she must show in order to establish that her delay in filing was the result of illness. Id. at 7 n.1. The appellant subsequently filed a motion, explaining that she “was so devastated and confused” over her removal and that the initial administrative judge told her that she “wouldn’t win” her appeal. PFR File, Tab 3 at 1. She also asserts that she went into “a deep depression,” and was “about to become homeless.” Id. The agency has filed a response. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s petition for review is untimely filed without good cause shown. The Board’s regulations provide that a petition for review must be filed within 35 days after the date of the 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on January 4, 2021. ID at 1. Thus, as the administrative judge correctly informed the appellant, she was required to file any petition for review no later than February 8, 2021. ID at 4. The appellant’s petition for review of the initial 4 decision was filed on February 13, 2021. PFR File, Tab 1 at 4, Tab 2 at 1. As such, we find that the petition for review is untimely filed by 5 days. The Board may waive its timeliness regulations only upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. §§ 1201.12, 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause by showing that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and her showing of due diligence, whether she is proceeding pro se, and whether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to her inability to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman v. Department of the Army, 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). The Board may decline to excuse a pro se appellant’s minimal delay when she fails to establish that she acted with due diligence. See, e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7-8 (2002). Additionally, as explained above, the appellant asserts on review that her mental health was affected by the removal action and that she suffers from depression. PFR File, Tab 3 at 1. We construe this as a claim that a mental illness affected her ability to timely file her petition for review. See, e.g., Tacujan v. U.S. Postal Service, 109 M.S.P.R. 553, ¶ 7 (2008); Hawkins v. Department of the Navy, 67 M.S.P.R. 559, 561-62 (1995). To establish good cause for an untimely petition for review based on mental illness, an appellant must (1) identify the time period during which she suffered from the illness; (2) submit corroborating evidence showing that she suffered from the alleged 5 illness during that time period; and (3) explain how the illness prevented her from timely filing her appeal or request for an extension of time. Nesby v. Office of Personnel Management, 81 M.S.P.R. 118, ¶ 7 (1999); Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). Although the appellant is proceeding pro se, and her 5-day delay can generally be regarded as “relatively de minimis,” see Brown v. Office of Personnel Management, 86 M.S.P.R. 417, ¶ 8 (2000), we nonetheless find that she has not established good cause to waive the filing deadline. As noted above, in the Clerk of the Board’s acknowledgement order informing the appellant that her petition for review was untimely filed, it provided her with what she must show in order to establish good cause for an untimely petition for review if she alleges that her health affected her ability to meet the filing deadline, consistent with Board precedent in Lacy. PFR File, Tab 2 at 7 n.1. The appellant’s motion to waive or set aside the time limit did not provide any of that information. PFR File, Tab 3. To wit, she has not identified the time period during which she was mentally incapacitated, nor has she submitted any documentary evidence demonstrating that she suffers from mental illness or explained how her mental illness prevented her from timely filing her petition for review. Rather, she simply asserts, without any supporting evidence or explanation of how it affected the untimely filing, that she suffers from depression. When, as here, an appellant fails to provide any of the information called for in Lacy, particularly an explanation of how the mental illness caused the delay in filing, the Board has consistently declined to find good cause for an untimely filing. See Cameron v. Department of the Navy, 112 M.S.P.R. 350, ¶ 13 (2009) (finding no good cause shown when a petition for review does not offer any evidence or explanation as to why an appellant’s mental health issues resulted in delay in filing); Davis v. U.S. Postal Service, 101 M.S.P.R. 107, ¶ 6 (2006) (finding that an appellant failed to establish good cause for an untimely petition for review when he failed to explain how his depression caused his delay in filing 6 or to submit any documentation in support of his claim), aff’d, 192 Fed. App’x 966 (Fed. Cir. 2006). Thus, although we are sympathetic to the appellant’s medical condition, we find that she has failed to establish good cause based on mental illness. As noted above, the appellant also asserts in her motion that she “was about to become homeless.” PFR File, Tab 3 at 1. However, she has not explained how that situation prevented her from filing a timely petition for review. For instance, she has not alleged that she was unaware of the filing deadline or that she was unable to access a computer or facsimile machine, nor has she alleged that she was unable to travel to a U.S. Postal Service location or any commercial delivery service to submit a petition for review. As such, we find that the appellant failed to establish that she experienced circumstances beyond her control that affected her ability to comply with the time limits. See Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman, 68 M.S.P.R. at 62 -63. In sum, although the appellant is acting pro se and her delay in filing her petition for review was relatively minimal, we find that she failed to establish that she exercised due diligence or ordinary prudence under the circumstances of her case.2 See Lockhart, 94 M.S.P.R. 396, ¶¶ 7-8. Accordingly, we dismiss the appellant’s petition for review as untimely filed without good cause shown. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the removal appeal. 2 The appellant submitted with her motion to accept the filing as timely and/or to waive the time limit for good cause an e-mail that appears to include her response to the proposed removal action. PFR File, Tab 3 at 5-6. This document does not address the issue of timeliness of the appellant’s petition for review, and is, therefore, not relevant to our inquiry here. 7 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. 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.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Stinchcomb_Carol_R_DA-0714-21-0067-I-1_Final_Order.pdf	2024-04-16	CAROL R. STINCHCOMB v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-21-0067-I-1, April 16, 2024	DA-0714-21-0067-I-1	NP
1,764	https://www.mspb.gov/decisions/nonprecedential/Reedus_Desiree_K_CH-1221-17-0411-W-2 Remand Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DESIREE K. REEDUS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-1221-17-0411-W-2 DATE: April 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Heather White , Esquire, Washington, D.C., for the appellant. Chadwick C. Duran and Danielle Kalivoda , Indianapolis, Indiana, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in this individual right of action (IRA) appeal. For the reasons discussed below, we GRANT the appellant’s petition for review, AFFIRM the administrative judge’s finding that the appellant established 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). a prima facie case of whistleblower reprisal, VACATE the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s protected disclosures, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND On May 3, 2015, the agency appointed the appellant to a position as a Physician in the Urgent Care Unit at the Marion Campus (Marion) of the agency’s Northern Indiana Health Care System (NIHCS), subject to the completion of a 2-year probationary period. Reedus v. Department of Veterans Affairs , MSPB Docket No. CH-1221-17-0411-W-1, Initial Appeal File (IAF), Tab 11 at 38-39. The appellant initially reported directly to Marion’s Medical Director of Primary Care (PC Director); however, following a series of confrontations between the appellant and the PC Director, NIHCS’s then-Chief of Staff (COS) issued a memorandum on June 23, 2015, removing the PC Director from the appellant’s chain of command. Id. at 45. On July 22, 2015, the appellant notified NIHCS’s then-Deputy Chief of Staff (Deputy)2 that the PC Director was endangering patients by drastically reducing the dosage of their prescribed pain medication without tapering the dosage, causing at least one patient to suffer a seizure. IAF, Tab 22 at 4, 7-8. In the fall of 2015, the agency hired an Associate Chief of Staff for Primary Care at Marion (ACOS), who became the appellant’s immediate supervisor. Reedus v. Department of Veterans Affairs , MSPB Docket No. CH -1221-17-0411- W-2, Appeal File (W-2 AF), Hearing Transcript, Day 1 (HT1 at 48) (testimony of the appellant); Hearing Transcript, Day 2 (HT2) at 239 (testimony of the COS). 2 The Deputy was appointed NIHCS’s COS in 2016. Reedus v. Department of Veterans Affairs, MSPB Docket No. CH-1221-17-0411-W-2, Appeal File (W-2 AF), Hearing Transcript, Day 2 (HT2) at 237-38 (testimony of the COS). Accordingly, all references to him concerning events that occurred in 2016 or thereafter, including his hearing testimony, identify him as COS.2 On July 19 and 20, 2016, the appellant sent emails to the ACOS and the COS concerning the protocol for responding to a “code blue”; i.e., a life-threatening emergency. IAF, Tab 9 at 139-40, 142-44; HT1 at 194-96 (testimony of the appellant’s union representative). In her July 19 email, the appellant stated that, when she responded to a code blue in Marion’s mental health ward the previous day, no other physician was present, hospital staff was not performing cardiopulmonary resuscitation correctly, and the patient subsequently died at the scene. IAF, Tab 9 at 142-43, Tab 18 at 20. The appellant asserted that Marion’s floor staff must be trained to respond to emergencies, and that it was not “typical protocol” in an inpatient hospital to require the Urgent Care provider to leave her post unmanned and travel long distances to other parts of the facility to respond to emergencies when other providers in closer proximity to the patient could provide care. IAF, Tab 9 at 143. In her July 20 email, the appellant alleged that hospital staff who responded to a code blue earlier that day did not follow the correct protocol for responding to emergencies, nor did they know the location of the carts that contained the equipment for responding to emergencies. Id. at 139-40. On July 27, 2016, the ACOS placed the appellant on a Focused Personnel Practice Evaluation (FPPE), citing concerns that she was not properly using the Emergency Department Information System (EDIS), a management tool that all agency urgent care clinics and emergency departments must use to track patients and ensure that they receive the care that they need in a timely manner. IAF, Tab 12 at 5; HT2 at 281 (testimony of the COS). On August 2, 2016, the ACOS issued the appellant an Ongoing Professional Practice Evaluation (OPPE), in which she concluded that the appellant did not meet “all defined criteria” for medical privileges. W-2 AF, Tab 26 at 119-21. In particular, the ACOS found that the appellant’s interpersonal and communication skills were unsatisfactory for the following reasons: (1) the appellant did not call her supervisor when she was going to be3 off work; (2) the appellant did not accept constructive feedback; and (3) the ACOS had “concerns about [the appellant’s] relationship with [the PC Director].” Id. at 119. The ACOS also stated that there were concerns about the appellant’s professionalism in front of staff and patients when the PC Director requested assistance from Urgent Care. Id. at 120. On August 3, 2016, Marion’s then-Acting Director (AD) notified the appellant that her medical privileges would be suspended effective August 4, 2016, at the COS’s recommendation, pending review of allegations that she had failed to respond promptly to a code blue on July 20, 2016, and had refused to provide medical care to a veteran on July 28 and 29, 2016. IAF, Tab 11 at 29-30. Around the time that her medical privileges were suspended, the appellant began a period of approved leave protected under the Family and Medical Leave Act of 1993 (FMLA). IAF, Tab 17 at 18. By memorandum dated August 31, 2016, the ACOS recommended to the COS that he consider convening a Physician Professional Standards Board (PSB) to determine whether the appellant’s employment should be terminated during her probationary period. IAF, Tab 10 at 17-21. In support of her recommendation, the ACOS described several incidents–including the July 2016 incidents that led to the suspension of the appellant’s medical privileges–in which the appellant allegedly failed to provide appropriate medical care to veterans in Urgent Care or failed to communicate professionally to staff, veterans, and family members. IAF, Tab 10 at 18-21, Tab 11 at 29-30. On September 7, 2016, the COS notified the appellant that a PSB would be convened to review eight alleged deficiencies in her performance and to make recommendations concerning her retention in the agency. IAF, Tab 8 at 16-18, Tab 11 at 18-20. On November 7, 2016, the appellant notified NIHCS’s Director that she would exhaust her FMLA leave on November 14, 2016, and she requested leave without pay (LWOP) from November 15 to December 15, 2016, the date of her next doctor’s appointment. IAF, Tab 8 at 30-31. On November 9, 2016, the COS4 denied the appellant’s LWOP request on the grounds that she had failed to submit medical documentation supporting her claim of incapacitation from work. IAF, Tab 9 at 68. The COS also provided the appellant with a copy of NIHCS’s Absence and Leave Policy, id. at 72-81, which states that an LWOP request must include supporting documentation, id. at 78. On December 15, 2016, the ACOS issued a letter charging the appellant with absence without leave (AWOL) for the period from November 15 to 28 and November 30 to December 15, 2016, because she was absent from duty on those dates and did not have sufficient leave to cover her absence. Id. at 31, 50-58. The ACOS ordered the appellant to return to duty on the next duty date after she received the letter, id. at 31; however, the appellant did not do so, id. at 59-66. On January 9, 2017, the Chairman of the PSB notified the appellant that she was being charged with AWOL from December 16, 2016, through January 6, 2017, because she had not reported for duty as instructed and had failed to provide sufficient medical documentation of her incapacity to work. Id. at 27-29. The PSB Chairman explained that a PSB would be convened on February 7, 2017, to consider this allegation, as well as the alleged deficiencies at issue before the previous PSB. Id. On February 22, 2017, the PSB issued a report recommending the appellant’s separation from duty based on her failure to report for duty as instructed and her AWOL status from November 15 to 28 and November 30 to the date of the report. Id. at 21-22. The Director concurred with the PSB’s recommendation and issued the appellant a letter dated April 7, 2017, notifying her of his decision to remove her effective April 28, 2017, for unacceptable attendance. Id. at 16-17. After exhausting her administrative remedies with the Office of Special Counsel (OSC), the appellant timely filed an IRA appeal with the Board on June 14, 2017, and requested a hearing. IAF, Tab 1.5 On August 3, 2018, the administrative judge issued a detailed order identifying the disclosures and personnel actions over which the appellant had established Board jurisdiction. W-2 AF, Tab 25 at 7-9, 11. The administrative judge found that the Board had jurisdiction over the following four disclosures: 1)The PC Director’s opioid prescription practices were endangering patients.3 2)After suspending her medical privileges on August 3, 2016, the COS ordered the appellant to perform work that was outside her scope of practice by directing her to brief the medical staff on safe opioid prescription practices and oversee the facility’s drug management program. 3)(a) The agency required the appellant to respond to emergencies in other parts of the hospital when other doctors were available to do so. Consequently, on multiple instances, the appellant had to leave patients with relatively serious injuries or symptoms at Urgent Care to respond to emergencies elsewhere in the hospital due to inadequate physician staffing. (b) Hospital staff was not properly trained to respond to emergencies, such as cardiac arrest, and did not know the location of the carts that contained lifesaving medical equipment, or how to use the equipment on the carts.4 3 The administrative judge found that the appellant made disclosure 1 to the Deputy in July 2015, to a Congresswoman in July 2016, and to the agency’s Office of Inspector General (OIG) on an unspecified date. W-2 AF, Tab 25 at 7 (citing IAF, Tab 22 at 5-8). 4 The administrative judge found that the appellant made disclosure 3 to the COS and the ACOS on January 8 and July 20, 2016, to a Congresswoman on August 20, 2016, and to the OIG on an unspecified date. W-2 AF, Tab 25 at 8 (citing IAF, Tab 17 at 16, Tab 25 at 4-5). The record shows that the appellant made this disclosure to the COS and the ACOS in her July 19 and 20, 2016 emails, IAF, Tab 25 at 4-5, 10-12; however, it does not support the administrative judge’s finding that the appellant also made this disclosure to those individuals on January 8, 2016. Rather, the record indicates that, during a January 8, 2016 meeting with the ACOS, the appellant stated that too many patients were being sent to Urgent Care. IAF, Tab 10 at 18, 22; Tab 17 at 16. This error is of no consequence, however, as it has no effect on the outcome of this appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision).6 4)The agency allowed veterans in Marion’s Drug and Rehabilitation Unit to leave the hospital, drive to drug-infested neighborhoods, and return to the hospital with drugs, which they took in an attempt to overdose. W-2 AF, Tab 25 at 7-9. The administrative judge also determined that the appellant had established jurisdiction over a number of alleged personnel actions. Id. at 11 (citing IAF, Tab 17 at 10-11, 17-20; Tab 18 at 17-18, 20-22). Following a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. W-2 AF, Tab 50, Initial Decision (ID) at 2, 31. The administrative judge found that disclosures 1 and (3)(b)5 were protected, but that the other disclosures were not protected, ID at 3-10; and that the FPPE, the OPPE, the summary suspension of the appellant’s medical privileges, the denial of her LWOP request, and the PSBs were covered personnel actions as defined in 5 U.S.C. § 2302(a)(2)(A), ID at 23-31, but that the other actions were not protected,6 ID at 16-19. The administrative judge also found that the appellant proved by preponderant evidence that her protected disclosures to the ACOS and the COS were contributing factors in the covered personnel actions7 under the knowledge/timing test, ID at 19-23; however , the 5 As indicated above, the appellant’s disclosure regarding the agency’s response to emergencies consists of the following two allegations: (1) the appellant was required to respond to all emergencies throughout the hospital during her shift (disclosure (3)(a)); and (2) hospital staff was not properly trained to respond to emergencies (disclosure (3)(b)). W-2 AF, Tab 25 at 8. The administrative judge found that only the second allegation was a protected disclosure. ID at 20-21. 6 The administrative judge found that the appellant failed to prove that the following alleged agency actions constituted personnel actions: a peer review; a hostile work environment; and assigning the appellant work that was outside the scope of her medical license. ID at 11-16, 18. Neither party has challenged these findings on review. Therefore, we have not further considered these alleged personnel actions. See 5 C.F.R. § 1201.115 (stating that the Board normally will consider only issues that are raised in a timely filed petition or cross petition for review ). 7 As noted above, the administrative judge found that: the appellant made disclosures 1 and (3)(b) to the COS (who was Deputy at the time of disclosure 1), the OIG, and a Congresswoman; and the appellant also made disclosure (3)(b) to the ACOS. ID at 3, 7. In evaluating whether the appellant proved the contributing factor element of her7 agency proved by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s protected disclosures, ID at 23-31. The appellant has filed a petition for review. Reedus v. Department of Veterans Affairs , MSPB Docket No. CH-1221-17-0411-W-2, Petition for Review (PFR) File, Tab 2. The agency has filed a response in opposition to the petition for review. PFR File, Tab 4. ANALYSIS To establish a prima facie case of whistleblower retaliation, the appellant must prove by preponderant evidence that: (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).8 5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets her burden, then the Board shall order corrective action unless the agency shows by clear and convincing evidence that it would appeal, the administrative judge found that “[n]othing in the record indicates that [the COS] and [the ACOS] were aware of the appellant’s disclosures to [the] Congresswoman . . . or to the OIG.” ID at 20-21. The administrative judge also found that “the appellant’s failure to specify the date she made the disclosures to the OIG makes it impossible to determine whether those disclosures were a contributing factor.” ID at 21. Thus, the administrative judge found, in effect, that the appellant failed to prove that her disclosures to the Congresswoman and the OIG were contributing factors in the actions at issue in this appeal. The appellant has not challenged this implied finding, nor do we discern any reason to disturb it. To the extent that the administrative judge characterized the appellant’s statements to the OIG as protected disclosures, without also recognizing that they were protected activities, we find any error harmless. See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (explaining that disclosures of information to an agency’s OIG or to OSC generally are protected regardless of their content). The appellant was still required to prove contributing factor as to her statements to the OIG. Id.; see Panter, 22 M.S.P.R. at 282. 8 The parties have not challenged the administrative judge’s jurisdictional findings on review and we discern no basis to disturb them.8 have taken the same personnel action in the absence of the protected disclosure and/or activity. 5 U.S.C. § 1221(e)(2); Salerno, 123 M.S.P.R. 230, ¶ 5. The administrative judge correctly found that the appellant failed to prove by preponderant evidence that disclosure (3)(a) was protected. A protected disclosure is any disclosure of information that the appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Chavez, 120 M.S.P.R. 285, ¶ 18. The appellant need not prove, however, that the matter disclosed actually established one of the covered types of wrongdoing. Id. Rather, the appellant must show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). Id. As noted above, the administrative judge found that the appellant proved that disclosures 1 and (3)(b) were protected. ID at 3-7, 9-10. On review, the appellant only challenges the administrative judge’s finding that disclosure (3)(a) was not protected. PFR File, Tab 2 at 17-20. Thus, we will limit our discussion to disclosure (3)(a)–that the agency required the appellant to respond to every emergency in the hospital that occurred during her shift. IAF, Tab 25 at 11. In assessing whether this disclosure was protected, the administrative judge considered the relevant documentary evidence and hearing testimony, including the appellant’s testimony that, during the relevant time period, Marion had a shortage of physicians.9 ID at 7; HT1 at 7, 9 (testimony of the appellant); 9 As the administrative judge found, the appellant’s testimony contravenes her assertion that other doctors were available to cover emergencies. ID at 8-9, W-2 AF, Tab 21 at 5.9 PFR File, Tab 2 at 5. The administrative judge concluded that the appellant failed to prove specific facts that would support her alleged reasonable belief of a substantial and specific danger to public health or safety. ID at 7-9. In her petition for review, the appellant reiterates her argument below that disclosure (3)(a) evidenced a substantial and specific danger to public health and safety. PFR File, Tab 2 at 17-20; W-2 AF, Tab 21 at 5, 7-9. Disclosures regarding danger to the public must be both substantial and specific to be protected. Miller v. Department of Homeland Security , 111 M.S.P.R. 312, ¶ 6 (2009). Factors to be considered in determining whether a disclosed danger is sufficiently substantial and specific to be protected include the likelihood of harm, when the alleged harm may occur, and the potential consequences of the harm. Id. Disclosure of an imminent event is protected, but disclosure of a speculative danger is not. Id. Applying this standard, the administrative judge found that, although the appellant complained about the burdens imposed on her by the agency’s decision to require her to use her medical expertise as an urgent care doctor to assist in emergencies, she did not allege that the decision posed a substantial and specific harm to public health or safety. ID at 8. The administrative judge also concluded that the appellant did not allege that the agency’s decision to use her services in this manner falls into any other category of wrongdoing under 5 U.S.C. § 2302(b)(8).10 Id. Therefore, the administrative judge found, the appellant 10 The administrative judge concluded that, at best, the appellant’s allegations in disclosure (3)(a) were disagreements as to the appropriate use of agency resources; however, mere policy disagreements with agency decisions are not protected disclosures. ID at 8 (citing Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015)). We need not reach this finding, as we agree with the administrative judge that disclosure (3)(a) is not a protected disclosure because the allegations set forth therein do not fall into any category of wrongdoing under 5 U.S.C. § 2302(b)(8). Webb, 122 M.S.P.R. 248, ¶ 9 (emphasizing that if an employee has a reasonable belief that disclosed information evidences the kinds of misconduct listed in 5 U.S.C. § 2302(b)(8), rather than a policy disagreement, it is protected).10 failed to establish that she reasonably believed that disclosure (3)(a) evidenced wrongdoing as defined in 5 U.S.C. § 2302(b)(8). ID at 9. On review, the appellant argues that the administrative judge’s finding is inconsistent with the Board’s decision in Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197 (2011), another IRA appeal filed by an agency physician. PFR File, Tab 2 at 17-20. In Parikh, the Board found that the appellant established that he reasonably believed that his disclosure of the following evidenced a substantial and specific danger to public health or safety : a physician failed to diagnose a patient’s rectal abscess and sent him home with medication rather than refer him for proper surgical treatment; two patients who should have been accepted in the emergency room were improperly directed to the urgent care area, resulting in unjustifiable delays in their treatment; and one patient who should have been admitted to the intensive care unit was improperly placed on the general medical floor, resulting in the eventual deterioration of his condition to the point where he required intubation. Parikh, 116 M.S.P.R. 197, ¶¶ 12, 15. The Board in Parikh found that the nature of the harm that could result from the issues that the appellant described in his disclosure was severe, as patients could die as a result of delayed treatment, misdiagnosis, or placement in lower levels of care with less monitoring than is appropriate for their conditions. Id., ¶ 15. It further determined that delays in providing treatment and monitoring patients resulted in a high likelihood of harm to patients who required immediate treatment or careful monitoring and the potential for harm was imminent because it could occur within a matter of hours or minutes. Id. Therefore, the Board found that the appellant reasonably believed that this disclosure evidenced a substantial and specific danger to public health and safety. Id., ¶ 18. The appellant argues on review that, just as the appellant in Parikh reasonably believed that the misdiagnoses and misdirection of patients was a substantial threat to public health and safety, she reasonably believed that the11 protocol requiring her to respond to all emergencies throughout the hospital posed a grave threat to her Urgent Care patients and to the patients who needed her help elsewhere on campus. PFR File, Tab 2 at 19-20. According to the appellant, “Whenever a code was called, [she] had to abandon any patient she was treating in order to respond to the code in another part of the hospital.” Id. at 19. However, she does not identify any details as to the degree, likelihood, or timing of any potential harm to these patients. Id. Moreover, unlike the appellant in Parikh, who cited specific instances in which he reasonably believed the misdiagnosis and misdirection of patients could result in untimely and inadequate patient care, Parikh, 116 M.S.P.R. 197, ¶¶ 12, 17, in disclosure (3)(a), the appellant does not identify a particular situation in which the policy requiring her to respond to emergencies presented a specific and substantial harm to the patients she was allegedly forced to abandon. IAF, Tab 25 at 11. The appellant asserts that the danger to patients as a result of the agency protocol is exemplified by the death of a patient on July 20, 2016.11 Id. at 19-20. However, in her July 19, 2016 email, id. at 10-11, the appellant attributes the patient’s death to the hospital staff’s lack of proper training to respond to emergencies, i.e., the subject of disclosure (3)(b), not the protocol that is the subject of disclosure (3)(a). While the appellant characterizes the protocol as “not typical” for an inpatient hospital, she does not indicate that the protocol requiring her to respond to the code blue played any role in the patient’s death.12 Based on our review of the record, we agree with the administrative judge that the appellant failed to establish by preponderant evidence that she reasonably believed that disclosure (3)(a) evidences wrongdoing as defined in 5 U.S.C. 11 This date appears to be incorrect. Disclosure 3 involved code blues that occurred on July 18 and 20, 2016. IAF, Tab 25 at 4-5, 10-12. The patient who was the subject of the July 18 code blue died that day; however, the patient who was the subject of the July 20 code blue survived. Thus, the appellant seems to be referring to the death that occurred on July 18, 2016. 12 Given the appellant’s skills and experience as an Urgent Care Physician, the protocol arguably increased the patient’s chances of surviving the code blue.12 § 2302(b)(8). Therefore, we concur with the administrative judge that disclosure (3)(a) was not a protected disclosure.13 ID at 9. The appellant’s disclosures were a contributing factor in the personnel actions. To prevail in an IRA appeal, an appellant must also prove by preponderant evidence that her protected disclosures were a contributing factor in a personnel action. Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 21 (2016). The term “contributing factor” means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual who made the disclosure. Id.; 5 C.F.R. § 1209.4(d). The most common way of proving the contributing factor element is the “knowledge/timing test.” Scoggins, 123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing factor element through evidence that the official taking the personnel action knew of the disclosure and took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. The Board has held that a personnel action that occurs within 2 years of the appellant’s disclosure satisfies the timing component of the knowledge/timing test. Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶¶ 21-23 (2013). Once an appellant has satisfied the knowledge/timing test, she has demonstrated that a protected disclosure was a contributing factor in a personnel action. Scoggins, 123 M.S.P.R. 592, ¶ 21. The appellant argues on review that the administrative judge erred in concluding that her protected disclosures were not a contributing factor in the decision to suspend her medical privileges. PFR File, Tab 2 at 22. The appellant 13 Although not recognized as such by the administrative judge, the appellant’s alleged disclosure of this information to the OIG constitutes protected activity under 5 U.S.C. § 2302(b)(9)(C). See Fisher, 2023 MSPB 11, ¶ 8. Any error in this regard is harmless, however. As previously discussed in connection with disclosure 3(b), the administrative judge implicitly found that the appellant failed to prove that her disclosures to the OIG were contributing factors in the actions at issue in this appeal. The appellant has not challenged this implied finding, and we discern no reason to disturb it. See Panter, 22 M.S.P.R. at 282.13 has apparently misread the initial decision. The administrative judge correctly found that the appellant’s protected disclosures were a contributing factor in the personnel actions still at issue in this appeal (including the suspension of the appellant’s medical privileges) based on the knowledge/timing test. ID at 20-23 (finding that the appellant made her protected disclosures to the ACOS and/or the COS between July 22, 2015, and July 20, 2016, and that all five personnel actions at issue in this appeal were initiated by either the COS or the ACOS between July 27 and September 7, 2016). The appeal must be remanded for a new determination as to whether the agency proved by clear and convincing evidence that it would have taken the same personnel actions absent the appellant’s protected disclosures. Because the appellant met her burden to establish a prima facie case of whistleblowing, the agency had the opportunity to prove by clear and convincing evidence that it would have taken the same personnel actions in the absence of the appellant’s whistleblowing. 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). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). Rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Id. In assessing whether the agency has met its burden, the Board must consider all the pertinent evidence in the record and it must not exclude or ignore countervailing evidence by only looking at the evidence that supports the14 agency’s position. Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012). Although the administrative judge correctly stated in the initial decision that the Board considers the Carr factors in determining whether the agency has presented clear and convincing evidence of its non-retaliatory reasons for taking a personnel action, ID at 23, we find that she did not adequately address those factors in concluding that the agency met this burden of proof. ID at 23-31. Even though the record is complete, we find that the administrative judge is in the best position to conduct a new clear and convincing analysis because she heard the testimony and made credibility determinations. See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 37-38 (2013); ID at 15. Therefore, we find it appropriate to vacate the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s protected disclosures and remand this appeal for a new clear and convincing analysis consistent with the guidance set forth below. See Shibuya, 119 M.S.P.R. ¶¶ 1, 37-38. Carr factor 1: the strength of the agency’s evidence in support of its action. In the initial decision, the administrative judge does not state that she considered the first Carr factor in determining whether the agency met its clear and convincing burden, much less how much weight she afforded it. ID at 24-31. On remand, the administrative judge shall make explained findings regarding the strength of the agency’s evidence in support of each of the personnel actions at issue in this appeal. She shall also state whether this factor favors the appellant or the agency and the weight she is affording this factor. In making these findings as to each action, the administrative judge should address both the evidence supporting her conclusions and the countervailing evidence. Whitmore, 680 F.3d at 1368.15 Carr factor 2: the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision to take the action. The administrative judge did not make any findings regarding the second Carr factor in determining that the agency met its clear and convincing burden regarding the personnel actions at issue in this appeal, with the exception of the suspension of the appellant’s medical privileges. ID at 24-31. As for her analysis of this factor in conjunction with that personnel action, the administrative judge found that, although the COS and the ACOS “played important roles” in the suspension, the AD ordered the suspension and he did not have a motive to retaliate against the appellant because nothing in the record indicates that he knew of the appellant’s protected disclosures or that his decision to suspend the appellant’s medical privileges was influenced by those aware of the appellant’s disclosures. ID at 27. However, in determining whether the appellant’s protected disclosures were a contributing factor in the suspension of the appellant’s medical privileges, the administrative judge found that the suspension was “invoked” by the COS, who recommended this course of action to the AD. ID at 22. Not only does the administrative judge’s finding that the COS did not influence the AD’s decision to suspend the appellant’s medical privileges directly contradict her previous finding that the COS invoked the suspension, but it also is not supported by the record. As observed above and in the initial decision, in his August 3, 2016 letter notifying the appellant that her medical privileges would be suspended, the AD expressly stated that he was taking this action based on the COS’s recommendation. ID at 21 (citing IAF, Tab 24 at 15). Given these circumstances, we find that the COS–who was aware of both protected disclosures–influenced the decision and therefore, any motive to retaliate on the part of the COS is imputed to the AD. See Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 21 (2010) (explaining that, when applying the second Carr factor, the Board will consider any motive to retaliate on the part of16 the agency official who ordered the action, as well as any motive to retaliate on the part of other agency officials who influenced the decision). Thus, in evaluating the second Carr factor on remand as it pertains to the suspension of the appellant’s medical privileges and any other action at issue in which the COS was involved, the administrative judge should consider the COS’s motive to retaliate. Further, we have found that “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacities as managers and employees.” Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65 (quoting Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012)); Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 28-29 (same). Thus, in evaluating the second Carr factor on remand, the administrative judge should address whether the appellant’s disclosures reflected poorly on the responsible agency officials in their capacities as managers and employees. See Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶¶ 69, 71 (2011) (finding that the managers who proposed and decided to remove an appellant had a motive to retaliate because, in pertinent part, the appellant’s disclosures reflected on them as representatives of the general institutional interests of the agency). Carr factor 3: any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. In determining that the agency met its clear and convincing burden, the administrative judge made only two findings that are relevant to the third Carr factor. ID at 23-31. First, as to the suspension of the appellant’s medical privileges, the administrative judge found that the agency summarily suspended the medical privileges of other physicians, including the ACOS, who were not whistleblowers. ID at 28.17 Second, as to the FPPE, the administrative judge addressed the appellant’s argument that, “while other physicians failed to use [the] EDIS, she was the only one subjected to an FPPE.” ID at 24. Based on the COS’s testimony that all other physicians who provided emergency care at Marion were contractors, t he administrative judge rejected this argument on the grounds that the agency could not take any personnel actions against contractors. Id. In other words, while not explicitly stating that she was addressing the third Carr factor, the administrative judge found, in essence, that there was no evidence that any agency employees were similarly situated to the appellant. “[T]he absence of evidence relating to Carr factor three can effectively remove that factor from the analysis.” Whitmore, 680 F.3d at 1374; see Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 18 (2016) (finding that, due to lack of evidence that there were any employees similarly situated to the appellant, the third Carr factor was not significant for the analysis of that case). However, if either or both of the first two Carr factors do not support a finding that the agency would have taken the same personnel action absent the disclosure or protected activity, the agency’s failure to present evidence of the third Carr factor may prevent it from carrying its overall burden. Smith, 2022 MSPB 4, ¶¶ 26-30; see also Miller v. Department of Justice , 842 F.3d 1252, 1259-63 (Fed. Cir. 2016). The administrative judge did not state how she weighed the absence of comparator evidence pertaining to the FPPE in her Carr factor analysis, ID at 24, nor did she address whether the agency presented any comparator evidence regarding the OPPE, the PSBs, and the denial of the appellant’s LWOP request. ID at 25-26, 28-31. On remand, for each personnel action at issue in this appeal, the administrative judge shall consider whether the agency presented evidence that there were no similarly situated employees to the appellant, or whether the agency did not present any evidence on the issue of similarly situated employees.18 In sum, on remand, the administrative judge shall conduct a new Carr factor analysis and determine whether the agency proved by clear and convincing evidence that it would have taken each of the personnel actions at issue in this appeal in the absence of the appellant’s protected disclosures. 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 the deficiency of her original analysis). In making this determination, the administrative judge must fully evaluate all of the pertinent evidence as required by Whitmore, 680 F.3d at 1368-74, explicitly address all three Carr factors, determine the weight to afford to each factor, and make credibility determinations in order to resolve any contradictory testimony. See, e.g., Massie v. Department of Transportation , 118 M.S.P.R. 308, ¶ 8 (2012) (remanding the appeal for the administrative judge to reconsider the record evidence and make detailed findings consistent with the guidance provided by the court in Whitmore). The Board lacks jurisdiction over the appellant’s remaining claims. Lastly, the appellant reiterates her argument from below that the agency did not allow her to review the evidence upon which it relied in suspending her medical privileges and convening the PSBs. PFR File, Tab 2 at 13, 25-26; IAF, Tab 15 at 9. The Board does not have jurisdiction to consider such claims in the context of an IRA appeal. See Hugenberg v. Department of Commerce , 120 M.S.P.R. 381, ¶ 24 (2013) (explaining that the appellant’s arguments that the agency denied him due process and committed harmful procedural error may not be heard in the context of his IRA appeal).19 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.20	Reedus_Desiree_K_CH-1221-17-0411-W-2 Remand Order.pdf	2024-04-16	DESIREE K. REEDUS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-17-0411-W-2, April 16, 2024	CH-1221-17-0411-W-2	NP
1,765	https://www.mspb.gov/decisions/nonprecedential/Manning_RebeccaAT-1221-18-0073-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD REBECCA MANNING, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-18-0073-W-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rebecca Manning , McDonough, Georgia, pro se. Bradley Flippin , Esquire, and Lois F. Prince , Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed 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 her remedies with the Office of Special Counsel (OSC) concerning her claims of harassment and improper processing of her Office of Workers Compensation Programs (OWCP) claim, we AFFIRM the initial decision. We FORWARD the appellant’s claims of involuntary reduction in grade and pay and involuntary retirement to the Atlanta Regional Office for docketing as a separate appeal under 5 U.S.C. §§ 7513(d) and 7701. BACKGROUND The appellant was formerly employed as a Loan Specialist, GS-1165-12, with the Veterans Benefits Administration, Monitoring Unit, in Nashville, Tennessee. Initial Appeal File (IAF), Tab 6 at 59. In April 2013, she requested permission to telework 1 day per week from an alternative worksite in McDonough, Georgia. Id. at 59-61. The telework proposal was signed by the appellant’s supervisor and the approving official, although the telework agreement itself listed an alternative worksite in Nashville. Id. at 61-62. The appellant alleges that her supervisor assured her that after a 90 -day trial period telecommuting from the Nashville location she would be permitted to telework 3 days per week from Georgia, where she was moving for family reasons. Id. 3 at 72. In July 2013, the appellant requested permission to telework from Georgia 4 days per week. Id. at 69. Her request was denied. Id. at 81-82. In late August 2013, and again in early September 2013, the appellant requested permission to telework 3 days per week, and the agency denied those requests as well, explaining that management had authorized only 2 days per week of telework and that the alternative worksite in Georgia had been approved in error. Id. at 83-86. On September 13, 2013, the American Federation of Government Employees filed a grievance on the appellant’s behalf concerning the denials of her telework requests. Id. at 87-92. On May 15, 2014, the appellant requested a transfer to the agency’s Atlanta office, where she took a lower-graded position. IAF, Tab 9 at 26. She retired in April 2016. Id. At some point thereafter, the appellant filed a disclosure form and a prohibited personnel practice (PPP) complaint with OSC. Id. at 25. The disclosure form and PPP complaint were processed concurrently but assigned different file numbers. Id. On August 11, 2017, OSC issued a final decision closing the appellant’s disclosure file. Id. at 25-30. The decision letter also served as a preliminary determination to close her PPP complaint. Id. On August 28, 2017, the appellant submitted a response addressing both determinations. Id. at 20-24. That same day, OSC informed the appellant of its final decision to close its inquiry into the appellant’s PPP complaint and notified her of her right to file an IRA appeal with the Board. Id. at 17-19. The appellant then filed the instant IRA appeal. IAF, Tab 1. The administrative judge advised the appellant of her burden of proof on jurisdiction and directed her to submit evidence and argument on that issue, including evidence that she had exhausted her remedies with OSC. IAF, Tabs 3, 8. In response to the jurisdictional orders, the appellant indicated that she had notified OSC of 15 disclosures and several alleged retaliatory actions, including a reduced performance rating, denial of telework, forced acceptance of a lower -graded position in Atlanta, involuntary retirement, failure to properly file an application 4 with OWCP, discrimination based on race and age, and various acts of harassment. IAF, Tab 9 at 4-8, 19-30. Based on the written record, the administrative judge determined that the appellant had exhausted her remedies with OSC with respect to three disclosures, which the administrative judge numbered as (1), (5), and (10). IAF, Tab 14, Initial Decision (ID) at 4-7. She further found that the appellant had exhausted her remedies with respect to her November 2013 performance rating, which was reduced from the “outstanding” rating she had received in previous years, and her alleged forced acceptance of a lower-graded position in Atlanta. ID at 7-9. The administrative judge went on to find that the appellant had failed to make nonfrivolous allegations that disclosures (1), (5), and (10) were protected under 5 U.S.C. § 2302(b)(8). ID at 9-12. Finally, the administrative judge found that the appellant had failed to make a nonfrivolous allegation that those disclosures were a contributing factor in the personnel actions at issue. ID at 12-13. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction without holding the appellant’s requested hearing. ID at 1, 13. On petition for review, the appellant argues that her move to the Atlanta office, which resulted in a reduction in grade and pay, was a constructive adverse action within the Board’s jurisdiction. Petition for Review (PFR) File, Tab 1 at 4-5. She further contends that she exhausted her remedies with OSC with respect to disclosures (2), (4), (6), (7), (9), and (14), and the remaining personnel actions. Id. at 5-8. She also argues that, contrary to the initial decision, she made nonfrivolous allegations that disclosures (1), (5), and (10) were protected under 5 U.S.C. § 2302(b)(8) and contributing factors in the alleged retaliatory actions. Id. at 7. Finally, she asserts that she has acquired new information, not included with her pleading, concerning the agency’s alleged failure to properly file a claim with OWCP. Id. at 7-8. 5 ANALYSIS We forward the appellant’s claims of involuntary reduction in grade and pay and involuntary retirement to the Atlanta Regional Office for processing as an adverse action appeal under 5 U.S.C. §§ 7513(d) and 7701. Under 5 U.S.C. § 7121(g), an employee who claims to have suffered whistleblowing reprisal regarding an appealable action may elect no more than one of the following remedies: a direct appeal to the Board; a negotiated grievance procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under 5 U.S.C. chapter 12, subchapters I and III, i.e., an OSC complaint, potentially to be followed by an IRA appeal. Ordinarily, an individual who first requests corrective action from OSC will be deemed to have made a binding election to proceed in that forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the jurisdictional standards for an IRA appeal apply, even if the contested personnel would have been directly appealable to the Board. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013). This principle applies equally to alleged constructive actions, such as the appellant’s claims of involuntary retirement and involuntary reduction in grade and pay resulting from her transfer to Atlanta. Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014). However, the Board also has held that an election under 5 U.S.C. § 7121(g) is binding only if made knowingly and voluntarily. Agoranos, 119 M.S.P.R. 498, ¶ 16. Here, the appellant was apparently not advised that contesting her alleged involuntary retirement and involuntary reduction in grade and pay in an OSC complaint would preclude her from filing a subsequent appeal directly with the Board. See id., ¶ 18. Under these circumstances, the appellant’s decision to contest the alleged constructive actions before OSC was not a binding election and does not preclude her from filing an adverse action appeal with the Board. Id. Furthermore, for the reasons discussed below, the Board lacks jurisdiction over this IRA appeal, leaving a chapter 75 appeal as the only remaining avenue for the appellant to contest the alleged constructive actions. Because the appellant has indicated that she still wishes to pursue her claims of involuntary 6 retirement and an involuntary reduction in grade in pay, we forward these claims to the Atlanta Regional Office for docketing as a separate appeal under 5 U.S.C. §§ 7513(d) and 7701. We give these claims no further consideration in the context of this IRA appeal. The administrative judge correctly dismissed the IRA appeal for lack of jurisdiction. The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b) (9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined under 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Once an appellant establishes jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her claim. Salerno, 123 M.S.P.R. 230, ¶ 5. Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective action from OSC before seeking corrective action with the Board. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may consider only matters that the appellant first raised before OSC. Id. The requirements are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. The Board’s jurisdiction is limited to those issues that were previously raised with OSC. However, appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC complaint; evidence that they amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations; and their written responses to OSC referencing the amended 7 allegations. Id. Appellants also may establish exhaustion through other sufficiently reliable evidence, such as an affidavit or a declaration attesting that they raised with OSC the substance of the facts in the Board appeal. Id. The appellant must prove exhaustion by preponderant evidence. 5 C.F.R. § 1201.57(c)(1). The appellant claims she reported the following protected disclosures to OSC: 1.Reported to agency management that, on February 12, 2013, D.W. brought her girlfriend to the office and took her into S.A.H.’s office where documents were open and possible Personally Identifiable Information (PII) was exposed; 2.Reported to OSC that employees claimed per diem when meals were provided by the hotel; 3.Reported to the Occupational Safety and Health Administration that working conditions were such that employees had to wear coats and gloves in the office or have a heater at their desks year round; 4.Reported to OSC that employees had shared with the appellant that D.W. purchased a gun from S.S., and that S.S. brought the gun to the office, where D.W. purchased it; 5.Reported to the agency’s Office of Inspector General (OIG) that S.S. did not enter his annual leave for his vacation from November 4-8, 2013; 6.Reported timecard issues to management regarding time taken by D.W. and indicating that the timekeepers needed to be changed; 7.Reported ethics violations to J.G., Office of General Counsel, on November 21, 2013, and May 20, 2014; 8.Reported to OSC that there was a lack of diversity in the Nashville Monitoring Unit; 8 9.Reported to OSC that the appellant filed administrative complaints with upper-level managers; 10.Reported to OIG on November 17, 2015, that an employee rented an apartment with a 1-year lease under the buyout program and continued to collect per diem for approximately 4 months; 11.Reported to OIG that S.A.H. was placed in a GS-13 position improperly; 12.Reported to OSC that S.S. was groomed and given special assignments and advantages towards the Assistant Chief position and that he was improperly selected for the position; 13.Reported to OSC that T.F.’s husband was hired and was in her line of supervision; 14.Reported to OSC that she spoke up about flawed information presented to the staff that would make the supervisors look good but would impact the quality and quantity of work completed by the staff; and 15.Reported to OSC that T.F. implemented a policy that denied staff the right to complain to upper management. IAF, Tab 9 at 4-8. We agree with the administrative judge that, for purposes of IRA jurisdiction, the appellant exhausted her remedies as to disclosures (1), (5), and (10) only. With regard to disclosures (2) and (4), the administrative judge found that the appellant raised these disclosures before OSC’s Disclosure Unit, not OSC’s Complaints Examining Unit, and that making disclosures to the Disclosure Unit does not satisfy the exhaustion requirement under 5 U.S.C. § 1214(a)(3). ID at 6; see Sabbagh v. Department of the Army , 110 M.S.P.R. 13, ¶¶ 10-15 (2008). On review, the appellant contends that the information she provided concerning disclosures (2) and (4) was in fact reviewed by both units. PFR File, Tab 1 at 6. The record does indicate that OSC concurrently processed the appellant’s 9 disclosure form (DI-17-1006) and her PPP complaint (MA-17-1006). IAF, Tab 9 at 25-30. Thus, while the Complaints Examining Unit would have been primarily concerned with the appellant’s PPP claims, it may have reviewed submissions in which the appellant also addressed disclosures (2) and (4). Nonetheless, correspondence from OSC indicates that those disclosures were considered in connection with the disclosure file and not in connection with her PPP complaint. Id. at 26-27. While the Complaints Examining Unit may have been aware of disclosures (2) and (4), the appellant has not shown that she alleged before OSC that the agency retaliated against her for those disclosures. Thus, we agree with the administrative judge that the appellant did not exhaust her remedies with respect to those disclosures. With regard to disclosures (6), (7), (9), and (14), the administrative judge found no indication that the appellant raised those disclosures to OSC. ID at 7. On review, the appellant states that she submitted to OSC a memorandum documenting a March 14, 2014 meeting with an individual named A.P., in which she discussed the events at issue in those disclosures. PFR File, Tab 1 at 6; IAF, Tab 9 at 59-77. However, assuming the appellant provided OSC with that memorandum, it contains no allegation that the agency retaliated against her for those disclosures in violation of 5 U.S.C. § 2302(b)(8). Nor does the correspondence between OSC and the appellant suggest that she made such an allegation. IAF, Tab 9 at 19 -30. Thus, for purposes of establishing IRA jurisdiction, the appellant has not shown that she met the exhaustion requirement with respect to those disclosures. The appellant does not contest the administrative judge’s finding that she did not provide OSC with sufficient information regarding disclosures (3), (8), (11), (12), (13), and (15), and we discern no error in that finding. Accordingly, we agree with the administrative judge’s conclusion that the appellant met the exhaustion requirement with respect to disclosures (1), (5), and (10) only. 10 Turning to the alleged retaliatory actions, the administrative judge found that the appellant exhausted her remedies only with respect to her lowered performance rating and her allegedly involuntary acceptance of a lower-graded position in Atlanta. ID at 8-9. As previously discussed, the appellant’s constructive action claims, including her alleged involuntary retirement and forced acceptance of a lower-grade position, will be considered in a separate appeal. Furthermore, we agree with the administrative judge that our jurisdiction does not extend to the denial of telework and the appellant’s discrimination claim. ID at 8-9. The appellant previously grieved the denial of telework pursuant to the collective bargaining agreement, and is therefore precluded from seeking a remedy with OSC or the Board. See 5 U.S.C. § 7121(g)(2). Regarding the claims of race and age discrimination, which fall under 5 U.S.C. § 2302(b)(1), the appellant did not provide OSC with a basis for investigation because OSC does not process such allegations but instead defers to the EEO process. IAF, Tab 9 at 29. We do agree with the appellant that, contrary to the initial decision, she met the exhaustion requirement with regard to her allegations of harassment. In finding that the appellant did not exhaust her remedies as to that alleged personnel action, the administrative judge relied on OSC’s conclusion that the alleged acts of harassment—which included berating the appellant at meetings, excluding her from social events, and overcriticizing her work—did not “rise to the level of severe or pervasive harassment that would constitute a significant change in duties and therefore . . . would not be considered a personnel action.” ID at 8; IAF, Tab 9 at 28; see 5 U.S.C. § 2302(a)(2)(A)(xii). However, OSC’s unfavorable finding, even if correct, does not imply that she failed to exhaust her administrative remedies. To the contrary, it demonstrates that the appellant did at least inform OSC of the basis of her charge that she was harassed in violation of 5 U.S.C. § 2302(b)(8). In addition, we find that the appellant exhausted her remedies with respect to the agency’s failure to file her OWCP claim, which, 11 contrary to OSC’s finding, may constitute a personnel action for purposes of an IRA appeal. IAF, Tab 9 at 23, 28; see Easterbrook v. Department of Justice , 85 M.S.P.R. 60, ¶ 12 (2000) (addressing the merits of the appellant’s claim that an agency official refused to sign his OWCP claim form in retaliation for his protected disclosures). Nonetheless, we agree with the administrative judge that the appellant failed to make nonfrivolous allegations that disclosures (1), (5), and (10) were protected under 5 U.S.C. § 2302(b)(8). A protected disclosure is a disclosure of information that the appellant reasonably believes evidences any violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial or specific danger to public health or safety. 5 U.S.C. § 2302(b)(8). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 8 (2013). Here, as the administrative judge found, the appellant failed to nonfrivolously allege that she reasonably believed that the wrongdoing alleged in disclosures (1), (5), and (10) in fact occurred. ID at 10-12. Specifically, the administrative judge found the appellant did not provide a factual basis for her belief that PII was compromised, or that S.S. failed to properly record his time, or that T.M. was improperly collecting per diem. Id. We discern no error in that finding, and the appellant’s mere disagreement does not provide a sufficient basis for disturbing it. 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 & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). In the absence of a nonfrivolous allegation 12 that the appellant’s disclosures were protected, we affirm the administrative judge’s finding that the appellant did not meet her jurisdictional burden.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. 2 Having found that disclosures (1), (5), and (10) were not protected under 5 U.S.C. § 2302(b)(8), we do not reach the question of whether the appellant nonfrivolously alleged that they were a contributing factor in the personnel actions at issue. Furthermore, we have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, 14 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 15 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 16 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.	Manning_RebeccaAT-1221-18-0073-W-1__Final_Order.pdf	2024-04-16	REBECCA MANNING v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0073-W-1, April 16, 2024	AT-1221-18-0073-W-1	NP
1,766	https://www.mspb.gov/decisions/nonprecedential/Chen_Minchih_J_NY-0752-21-0066-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MINCHIH JULIE CHEN, Appellant, v. NATIONAL CREDIT UNION ADMINISTRATION, Agency.DOCKET NUMBER NY-0752-21-0066-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Elaine Fitch , Esquire, Washington, D.C., for the appellant. Alex R. Roberson , 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 sustained her removal for excessive absence and absence without leave (AWOL). Generally, we grant petitions such as 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 agency proved its AWOL charge because it properly denied the appellant’s leave without pay (LWOP) request, correct the analytical framework applied to the appellant’s Family and Medical Leave Act of 1993 (FMLA) retaliation claim, and clarify the administrative judge’s findings regarding the appellant’s reasonable accommodation claim and whistleblower reprisal claim, we AFFIRM the initial decision. BACKGROUND The appellant was employed as a CU-12 Credit Union Examiner with the agency. Initial Appeal File (IAF), Tab 7 at 21. From September 30 to December 12, 2019, the appellant was on FMLA-protected LWOP due to “postpartum related issues,” such as depression, anxiety, and stress. Id. at 59-60, 62, 132-33. After exhausting her FMLA-protected leave, the appellant submitted medical notes on an almost -monthly basis stating that she needed an extension of LWOP to the following month to continue treatment for her medical conditions. Id. at 50-52, 57-59, 81. The agency granted the appellant’s requests, and she was placed in a long-term LWOP status. Id. at 133-37. However, in a letter dated July 17, 2020, the appellant’s supervisor requested more information regarding her ongoing absence, explaining that the agency had granted her 1,248 hours of 3 LWOP and it could no longer tolerate the appellant’s prolonged absence, and ordered her to return to work on July 27, 2020, warning her that failure to do so may result in adverse action, including removal. Id. at 48-49. The appellant responded to the letter, explaining, among other things, that she had to strictly isolate because she suffers from chronic obstructive pulmonary disease (COPD) and was at high risk for COVID-19; that the self-isolation exacerbated her depression, anxiety, and stress; and that she would probably not be able to return to work until 2021 due to COVID-19. Id. at 44-45. In response, the agency granted the appellant LWOP through July 31, 2020, but ordered her to return to duty on August 3, 2020. Id. at 40. When the appellant did not return to duty on August 3, 2020, the agency started charging her with AWOL, and then proposed her removal on October 26, 2020, based on charges of excessive absence and AWOL. Id. at 28-32, 137-38. After reviewing the evidence, including a medical note from the appellant stating that she could return to work in September 2021, the deciding official sustained both charges, removing the appellant effective February 15, 2021. Id. at 21-27, 33. The appellant filed a Board appeal, and after holding a hearing, the administrative judge issued an initial decision affirming the removal. IAF, Tab 31, Initial Decision (ID). First, the administrative judge found that the agency proved the merits of both charges, established nexus, and established that removal was within the bounds of reasonableness. ID at 10-31. Next, with respect to the appellant’s affirmative defenses, the administrative judge found that she failed to establish her claim of disability discrimination because she failed to establish that she was an otherwise qualified individual entitled to reasonable accommodation, and she failed to establish a prima facie case of disability discrimination or that her disability was a motivating factor in her removal.2 ID at 32-43. With respect to the appellant’s claim of FMLA 2 The administrative judge also found that, even if the appellant had established a prima facie case of disability discrimination, the agency articulated a legitimate nondiscriminatory reason for her removal, and she had failed to establish that this 4 retaliation, the administrative judge found that the appellant failed to establish there was a causal connection between her invocation of FMLA-protected leave and her removal. ID at 43-45. Finally, regarding the appellant’s whistleblower reprisal claim, the administrative judge found that the appellant failed to establish that she engaged in a protected activity when she requested reasonable accommodation, and she failed to establish that she made a protected disclosure in two emails sent to the deciding official on July 20, 2020, and July 31, 2020. ID at 45-49. The appellant filed a petition for review arguing, among other things, that the agency’s charges should not have been sustained3 and that the agency failed to reasonably accommodate her and retaliated against her for whistleblowing. Petition for Review (PFR) File, Tab 9 at 18-27, 29-36. The agency filed a response in opposition to the appellant’s petition for review, and the appellant replied to the response.4 PFR File, Tabs 13-14. reason was mere pretext for discrimination. ID at 43. 3 Although the appellant’s subheading in her petition for review appears to challenge the administrative judge’s finding of nexus, the contents of the argument challenged the merits of the agency’s charges. PFR File, Tab 9 at 24-27. Nevertheless, to the extent that the appellant challenges the administrative judge’s finding of nexus, it is well established that attendance -related misconduct impacts the efficiency of the service, and thus, the agency established nexus. See Davis v. Veterans Administration , 792 F.2d 1111, 1113 (Fed. Cir. 1986) (finding nexus between the appellant’s prolonged AWOL and the efficiency of the service because absence, by its very nature, disrupts the efficiency of the service). 4 To the extent that the appellant argues that her rights were prejudiced because the Office of the Clerk of the Board denied her request to expand the page limit of her petition for review, we discern no reason that the appellant could not present her arguments in the limits provided in 5 C.F.R. § 1201.114(h). PFR File, Tab 9 at 9 n.1. Additionally, we acknowledge that the Board granted the appellant’s motion on review to correct the hearing transcript, and the agency failed to respond to the Board’s order granting the motion. PFR File, Tabs 15-16. However, because the corrections identified by the appellant were minor and typographical in nature and they do not change the substance of the transcript, we do not address this issue further. PFR File, Tab 15. 5 ANALYSIS Although the administrative judge properly affirmed the agency’s removal action, there are several points in the initial decision that require modification or clarification. First, while we find that the administrative judge properly sustained the excessive absence charge, we modify the initial decision to find that the agency proved the AWOL charge because it established that it reasonably denied the appellant’s LWOP request and charged her with AWOL. Next, we modify the administrative judge’s analysis of the appellant’s FMLA retaliation claim because, after the initial decision was issued, the Board issued Marcell v. Department of Veterans Affairs , 2022 MSPB 33, ¶¶ 7-8, overruling Doe v. U.S. Postal Service, 95 M.S.P.R. 493, ¶ 11 (2004), upon which the administrative judge relied. ID at 44. We also clarify the basis for the administrative judge’s findings with respect to the appellant’s failure to reasonably accommodate claim and her whistleblower reprisal claim. In sum, because we find that the agency’s charges were properly sustained, the appellant failed to establish her affirmative defenses, and she has failed to establish her claim of abuse of discretion raised on review, we affirm the agency’s removal action.5 The agency proved its charge of excessive absence. The administrative judge sustained the excessive absence charge, finding that the appellant’s absence was due to a compelling reason beyond her control and continued for an unreasonable period of time, the agency warned her of 5 The appellant also challenges the administrative judge’s finding that removal was within the bounds of reasonableness. PFR File, Tab 9 at 27-29; ID at 31. The Board has long recognized that a prolonged absence with no foreseeable end constitutes just cause for removal . New v. Department of Veterans Affairs , 82 M.S.P.R. 609, ¶ 9 (1999) (finding removal appropriate when the appellant had been absent for over two years during a 3 1/2-year period); McKenzie v. U.S. Postal Service , 1 M.S.P.R. 496, 497 (1980) (finding removal appropriate when the employee failed to return to duty after 2 years of absence); see White v. Department of Housing and Urban Development , 95 M.S.P.R. 299, ¶ 83 (2003) (finding removal appropriate when the employee was AWOL for nearly 6 months). As further discussed below, we find that there was no foreseeable end to the appellant’s absence, and we agree with the administrative judge that removal was a reasonable penalty. ID at 31. 6 potential adverse action if she did not become available for duty, and the agency needed the appellant’s position to be filled with an employee who was available on a regular full -time or part-time basis. ID at 18-19. On review, the appellant argues that the agency did not establish that it needed her position filled because it had been able to reassign her work to other examiners without difficulty. PFR File, Tab 9 at 26-27. As a general rule, an agency may not take an adverse action based on an employee’s use of approved leave. Combs v. Social Security Administration , 91 M.S.P.R. 148, ¶ 12 (2002). However, an exception may exist when the following criteria are met: (1) the employee was absent for compelling reasons beyond her control so that agency approval or disapproval of leave was immaterial because she 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 she 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. Id., ¶ 13; Cook v. Department of the Army , 18 M.S.P.R. 610, 611-12 (1984). This exception is applicable only under usual circumstances, i.e., when the employee is unable to return to duty because of the continuing effects of illness or injury. Combs, 91 M.S.P.R. 148, ¶ 12; Cook, 18 M.S.P.R. at 612. Here, the appellant does not dispute that she was absent from work due to her medical conditions, either in an LWOP status or AWOL status, from December 13, 2019, until her removal effective February 15, 2021.6 IAF, Tab 7 at 133-39. Accordingly, the agency has satisfied the first factor. As for the second factor, the record establishes that the agency sent the appellant a letter dated July 17, 2020, after granting her 7 months of LWOP, warning her that her 6 Because an employee may not be disciplined for use of FMLA-protected leave, the agency properly refrained from including the appellant’s period of FMLA-protected LWOP in its excessive absence charge. McCauley v. Department of the Interior , 116 M.S.P.R. 484, ¶ 11 (2011). 7 prolonged absence had become excessive and if she did not return to work, she could face adverse action, up to and including removal. IAF, Tab 7 at 48-49. Accordingly, we find that the agency also met the second factor by preponderant evidence. We find that the agency established the third factor. The agency presented a significant amount of evidence with respect to the toll the appellant’s absence took on the agency’s operations, with each of the agency’s witnesses confirming that it needed the appellant’s position to be filled by someone who was available for duty and could perform the essential functions of the job. Hearing Transcript (HT) dated May 24, 2021 at 40-42 (testimony of the deciding official), 136-37 (testimony of the appellant’s supervisor); HT dated June 1, 2020 at 160 (testimony of the proposing official). The deciding official and the appellant’s supervisor explained that the agency was short-staffed, and the reassignment of the appellant’s work caused a significant drain on the agency’s resources, creating a “domino effect” within the office. HT dated May 24, 2021 at 17-18, 36-42, 85-93, 101-02 (testimony of the deciding official). Accordingly, we find that the agency proved its excessive absence charge because it established that the appellant was absent for compelling reasons beyond her control, her absence had continued beyond a reasonable time, the agency warned her that failure to report for duty could result in adverse action, and the agency needed her position to be filled by an employee available for regular full-time or part-time duty. Thus, we find that the administrative judge correctly sustained the excessive absence charge. ID at 19. We modify the initial decision to find that the agency proved its charge of AWOL because it reasonably denied the appellant’s requested LWOP. In the initial decision, the administrative judge found that the agency proved its charge of AWOL because the appellant was absent on the days alleged, she was not authorized to be absent, and she did not provide administratively acceptably evidence to support her absence. ID at 25. However, the pertinent 8 issue here is whether the agency proved that it properly denied the appellant’s request for LWOP and charged her with AWOL. When disciplinary action results because LWOP is denied, and the employee is placed on AWOL, the Board will review the circumstances to determine if the denial was reasonable. Joyner v. Department of the Navy , 57 M.S.P.R. 154, 159 (1993). When, as here, there is a medical excuse, the Board will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. The Board has found that an agency may properly deny LWOP to an employee who is incapacitated for duty and has exhausted all of her leave and there is no foreseeable end in sight to her absence and the employee’s absence is a burden to the agency. Id. Regarding whether there was a foreseeable end to the appellant’s absences, the return date provided by the appellant, i.e., September 2021, was almost 1 year after she submitted the letter and too remote to be considered foreseeable. IAF, Tab 7 at 26-27, 33. Furthermore, before providing the September 2021 return date, the appellant had submitted medical notes on a monthly basis requesting extensions of leave for approximately 1 year. IAF, Tab 7 at 50-52, 57-60, 80-81. The Board has found that, when an appellant has repeatedly submitted medical documentation indicating that she could return to work in the future, but did not return to work when the stated date arrived, such a pattern supports a finding that there is no foreseeable end to the absence. See Johnson v. U.S. Postal Service , 120 M.S.P.R. 87, ¶ 6 (2013). Thus, the agency, for almost 1 year, had a reasonable expectation that the appellant would return at the end of each of these extensions, but she never did. Accordingly, it is understandable that the agency would not rely upon the appellant’s promise that she would, in fact, return to work in September 2021. Finally, we note that the appellant’s return to work date was based on the state of COVID-19, as her medical provider stated that it was not safe for her to return to work immediately “[g]iven that [COVID-19 was] only getting worse” and that she “had not previously given a [return to work] date due 9 to the unknown nature of the virus.”7 Id. at 26-27, 33. The medical provider’s estimation of the state of a global pandemic in 1 year was, at best, speculation, and further calls into question the reliability of the predicted September 2021 return date. Accordingly, given the circumstances, we do not find that there was a foreseeable end to the appellant’s absence. Furthermore, we find that the agency put forth a significant amount of evidence establishing that the appellant’s absence was a burden, as it had to reassign her work which was a drain on the agency’s resources, and the agency was unable to fill her position with someone who could perform the work because she occupied the billet. HT dated May 24, 2021 at 33, 36-42, 63-64, 89-92, 101-102 (testimony of the deciding official), 133-37 (testimony of the appellant’s supervisor), HT dated June 1, 2021 at 154-55, 158, 160 (testimony of the proposing official) . Thus, we modify the initial decision to find that the agency proved its AWOL charge because it established that it properly denied the appellant’s request for LWOP and charged her with AWOL. The appellant did not establish that her removal was on the basis of her FMLA - protected leave requests. In accordance with findings in Doe, 95 M.S.P.R. 493, ¶ 11, the administrative judge analyzed the appellant’s claim of FMLA retaliation as protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), finding that she did not establish a causal connection between her invocation of FMLA and her removal. ID at 44-45. However, after the initial decision was issued, the Board overruled Doe in Marcell, 2022 MSPB 33, ¶¶ 7-8, finding that FMLA leave requests were not protected activities under 5 U.S.C. § 2302(b)(9), but may be protected under 7 The medical provider’s recommendation that the appellant could not return to work at that time was due both to the appellant’s pulmonary disease, i.e., COPD, which put her at high-risk for COVID-19, and the exacerbation of her mental health conditions as a result of having to strictly self-isolate due to COVID-19. IAF, Tab 7 at 26-27, 33, 44-45. 10 5 U.S.C. § 2302(b)(10), which makes it a prohibited personnel practice for an agency to “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.” Accordingly, while we modify the initial decision to analyze the appellant’s FMLA retaliation claim under 5 U.S.C. § 2302(b)(10), we also find that the appellant did not establish that she was removed because of, or “on the basis of,” her use of FMLA-protected leave. As noted by the administrative judge, the appellant was asked to justify her leave after being on long-term LWOP, well after she exhausted her FMLA-protected leave, and there is no evidence that her period of FMLA-protected leave was part of the charges or was considered by the deciding official. ID at 44-45. Accordingly, we find that the appellant failed to establish that the agency violated 5 U.S.C. § 2302(b)(10) by removing her on the basis of her FMLA leave. The appellant did not establish her claim of disability discrimination because she is not an otherwise qualified individual with a disability. On review, the appellant challenges the administrative judge’s finding that she did not establish that the agency failed to provide her a reasonable accommodation. PFR File, Tab 9 at 18-24. Although we agree with the administrative judge’s finding that the appellant failed to prove that she was an otherwise qualified individual with a disability, ID at 37, we provide additional clarification. Specifically, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that the accommodation would cause an undue hardship on its business operations. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). Accordingly, we find that her requested accommodation of almost 1 year of LWOP was not reasonable because it constituted an undue hardship on the agency. Here, the agency presented evidence that the appellant’s absence created 11 significant hardship on the agency. For instance, the appellant’s supervisor testified that, as a higher-grade Credit Union Examiner, the appellant was tasked with completing the larger, more complex examinations, including those that required her expertise as a subject matter expert in electronic payment systems. HT dated May 24, 2021 at 133-34 (testimony of the appellant’s supervisor) . The deciding official, who was also the Regional Director, explained that reassignment of an Examiner’s work was often difficult because examinations of banks were scheduled well in advance, and moving work around created a “domino” effect in the office. Id. at 36-37, 101-02 (testimony of the deciding official). Furthermore, as the appellant was occupying a full-time equivalent, the agency could not hire another employee to fill her position and thus perform her duties. Id. at 90 (testimony of the deciding official). Accordingly, we find that the agency established that the appellant’s requested 1 year of LWOP would be an undue hardship on the agency.8 Furthermore, we agree with the administrative judge that the appellant has not offered any evidence that there was a reasonable accommodation available that would have allowed her to perform the essential functions of her position. ID at 37. Thus, even assuming that the agency failed to engage in the interactive process, as alleged by the appellant, PFR File, Tab 9 at 20, this would not constitute a violation of the Rehabilitation Act because there was no reasonable accommodation available that would have allowed her to perform the essential functions of her job, Sanchez v. Department of Energy , 117 M.S.P.R. 155, ¶ 18 (2011) (finding that a failure to engage in the interactive process is not a per se violation of the Rehabilitation Act, unless that failure results in a failure to provide reasonable accommodation). Indeed, it appears that the appellant was unable to work at all during this time because she did not request telework, even 8 While we only address the appellant’s request for approximately 1 year of LWOP, the agency had already provided the appellant with 1,320 hours of LWOP, not including the FMLA-protected leave, and thus, had granted her requested accommodation for over 7 months, even though it was under no obligation to do so. IAF, Tab 7 at 30, 132-37. 12 though, at the time of the hearing, agency employees were still working in a remote status, which they had been in since March 16, 2020. HT dated May 24, 2021 at 31-32 (testimony of the deciding official). A qualified individual with a disability is one who can “perform the essential functions of the . . . position that such individual holds or desires,” with or without reasonable accommodation.9 42 U.S.C. § 12111(8). Accordingly, we clarify the initial decision to state that the appellant is not a qualified individual with a disability because the only accommodation that would accommodate her disability, i.e., 1 year of LWOP, created an undue hardship for the agency, and thus, was not reasonable under the circumstances . ID at 37. The appellant failed to establish that her removal was in reprisal for whistleblowing activities. The administrative judge denied the appellant’s claim of whistleblower reprisal, finding that the appellant did not engage in a protected activity when she requested reasonable accommodation, and that she did not make a protected disclosure in her emails to the deciding official dated July 20, 2020, and July 31, 2020. ID at 46-49. On review, the appellant challenges the administrative judge’s findings as they relate to her request for reasonable accommodation and her July 31, 2020 email. PFR File, Tab 9 at 30-33. Although we agree with the administrative judge’s conclusions, we believe it necessary to clarify the reasons supporting these findings. First, the administrative judge found that the appellant’s request for reasonable accommodation was not a protected activity under 5 U.S.C. § 2302(b)(9), in part, because it was not a complaint “remedying a violation of 9 The Board adjudicates claims of disability discrimination raised in connection with an otherwise appealable action under the substantive standards of section 501 of the Rehabilitation Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 35. The standards under the Americans with Disabilities Act, as amended by the American with Disabilities Act Amendments Act, have been incorporated by reference into the Rehabilitation Act and the Board applies them to determine whether there has been a Rehabilitation Act violation. Id.; see 29 U.S.C. § 791(f). 13 [section] 2302(b)(8).” ID at 46. However, equal employment opportunity (EEO) matters are not within the purview of the whistleblower protection statutes. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-23 (reviewing case law and legislative history in finding that EEO-related matters are not within the purview of whistleblower protection statutes), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). Accordingly, the appellant’s request for reasonable accommodation is not a protected activity under 5 U.S.C. § 2302(b)(9). Regarding the July 31, 2020 email, we find that the appellant did not make a protected disclosure under 5 U.S.C. § 2302(b)(8)(A). A protected disclosure is one that an appellant reasonably believes evidences a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); see Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a whistleblower has a reasonable belief in the disclosure is an objective one: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)(A). Salerno, 123 M.S.P.R. 230, ¶ 6. On review, the appellant claims that her July 31, 2020 email disclosed that she “was being punished [for] disclos[ing] evidence of an abuse of authority” and “taking protected leave.” PFR File, Tab 9 at 30. The crux of the appellant’s complaint in the email was that the agency was not allowing her to “practice [the agency’s] work/life balance motto by taking time off needed to heal” because it was refusing to extend her LWOP again, after having already granted her LWOP for over 7 months. IAF, Tab 7 at 36-38. The appellant has not explained how this denial of LWOP constituted an abuse of authority, nor has she identified any law, rule, or regulation the agency allegedly violated by denying her LWOP 14 request.10 Furthermore, we find that a disinterested observer, with knowledge of the essential facts, would not reasonably conclude that the agency’s refusal to grant an employee LWOP for an extended period of time, after already having granted the employee LWOP for many months, could constitute any wrongdoing, let alone the type of wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A). Accordingly, we find that the appellant did not make a protected disclosure. The appellant failed to establish that the administrative judge abused her discretion. On review, the appellant has asserted that the administrative judge abused her discretion by denying three witnesses she requested, and by limiting her questioning during the hearing. PFR File, Tab 9 at 37-38. The appellant has failed to establish that the administrative judge abused her discretion in either instance. An administrative judge has wide discretion under the Board’s regulations to exclude witnesses when it has not been shown that their testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985); see 5 C.F.R. § 1201.41(b)(8), (10). The appellant argues that the administrative judge should not have denied the three named witnesses because they had relevant knowledge as to the agency’s workload and the appellant’s workload. PFR File, Tab 9 at 37. Per the administrative judge’s prehearing order, she denied all three witnesses at issue on the grounds of relevance, explaining that two witnesses retired several years prior to the appellant’s removal, and the other witness was a co-worker with a different supervisor who was not a staffing specialist nor had any staffing responsibilities. IAF, Tab 22 at 3-4. Thus, it appears on its face that these witnesses were not 10 To the extent that the appellant asserts that the agency violated a law, rule, or regulation because her leave was protected, PFR File, Tab 9 at 30, the appellant had been on LWOP since December 13, 2019, and had exhausted her FMLA-protected leave on December 12, 2019, IAF, Tab 7 at 133-37, and thus, there is no evidence that her leave was protected by law, rule, or regulation. 15 relevant, and absent a conclusory assertion that they have relevant knowledge, the appellant has presented no evidence to demonstrate that the administrative judge abused her discretion by denying these witnesses. PFR File, Tab 9 at 37. Regarding the appellant’s claim that the administrative judge improperly limited her questioning during the hearing, it is well established that an administrative judge has wide discretion to control the proceedings of an appeal, and that discretion will not be questioned absent a showing of abuse of discretion. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. Here, the appellant has not only failed to show that the administrative judge’s rulings were in error, but she has also failed to explain how the disallowed questions impacted her case. Indeed, the appellant only makes the conclusory assertion that her disallowed questions were “central” and “relevant” to her case, but she fails to explain how the administrative judge’s actions impacted the outcome of her case. PFR File, Tab 9 at 37-38. Accordingly, the appellant has failed to establish that the administrative judge abused her discretion in the manner in which she controlled the hearing. NOTICE OF APPEAL RIGHTS11 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of 11 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 16 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 17 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file 18 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.12 The court of appeals must receive your 12 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 19 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.	Chen_Minchih_J_NY-0752-21-0066-I-1__Final_Order.pdf	2024-04-16	MINCHIH JULIE CHEN v. NATIONAL CREDIT UNION ADMINISTRATION, MSPB Docket No. NY-0752-21-0066-I-1, April 16, 2024	NY-0752-21-0066-I-1	NP
1,767	https://www.mspb.gov/decisions/nonprecedential/Talamante_RichardDE-0842-21-0222-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICHARD TALAMANTE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-0842-21-0222-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard Talamante , Phoenix, Arizona, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for failure to state a claim upon which relief can be granted. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of 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 VACATE the initial decision and instead AFFIRM the final decision of the Office of Personnel Management (OPM) denying the appellant’s retirement application under the Federal Employees’ Retirement System (FERS) . BACKGROUND On October 3, 2001, the appellant resigned from his position in the U.S. Customs and Border Protection. Initial Appeal File (IAF), Tab 5 at 19. He requested a refund of his retirement deductions on December 3, 2001, and OPM processed his refund in the amount of $7,363.24 on April 24, 2002. Id. at 16, 20, 26-27. The application for refund of retirement deductions informed the appellant that payment of the refund would result in “permanent forfeiture of any retirement rights” based on the periods of Federal service which the refund covered. Id. at 26. On March 9, 2021, the appellant applied for a deferred FERS annuity. Id. at 10-13. In an April 14, 2021 final decision, OPM denied his retirement application, concluding that he was not eligible for an annuity because he had previously applied for and been authorized a refund of his retirement deductions. Id. at 9. OPM advised the appellant of his right to appeal the decision to the Board. Id.2 The appellant filed a Board appeal challenging OPM’s final decision. IAF, Tab 1. He alleged that he did not recall ever signing for a refund of his retirement deductions or receiving the refund check. Id. at 4, 6. OPM submitted the appellant’s application for a refund of retirement deductions and records reflecting that the appellant’s refund of retirement contributions was authorized and paid. IAF, Tab 5 at 16, 20, 26-27. The administrative judge issued an order for the appellant to show cause as to why he should not find that the appellant requested and received a refund. IAF, Tab 6 at 2. The appellant did not respond. The administrative judge then issued an order for the appellant to show cause as to why he should not find that the appellant failed to state a claim for which relief may be granted. IAF, Tab 7 at 2. The appellant did not respond. Two weeks later, the administrative judge issued an initial decision that dismissed the appeal for failure to state a claim upon which relief could be granted. IAF, Tab 8, Initial Decision (ID) at 2. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. OPM has filed a response. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred in dismissing the appeal for failure to state a claim upon which relief may be granted. An appeal may be dismissed for failure to state a claim upon which relief may be granted if the appellant cannot obtain effective relief before the Board even if his allegations are accepted as true. Alford v. Department of Defense , 113 M.S.P.R. 263, ¶ 11 (2010), aff’d, 407 F. App’x 458 (Fed. Cir. 2011). Dismissal for failure to state a claim is appropriate only if, taking the appellant’s allegations as true and drawing all reasonable inferences in his favor, he cannot prevail as a matter of law. Id. Because the administrative judge relied on documentary evidence submitted by the agency to conclude that the appellant requested and received a refund of his retirement deductions despite the appellant’s assertions that he did3 not request or receive a refund, ID at 1-2, it was inappropriate for the administrative judge to dismiss the appeal for failure to state a claim upon which relief can be granted. See Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 9 n.* (2007); see also Ainslie v. United States , 355 F.3d 1371, 1373 (Fed. Cir. 2004). Thus, we vacate the administrative judge’s determination that the appellant failed to state a claim upon which relief can be granted. As discussed below, we instead affirm OPM’s final decision denying the appellant’s application for retirement benefits. We affirm OPM’s final decision denying the appellant’s retirement application. An individual seeking retirement benefits bears the burden of proving entitlement to those benefits by preponderant evidence. Townsend v. Department of Justice, 83 M.S.P.R. 427, ¶ 9 (1999); 5 C.F.R. § 1201.56(b)(2)(ii) . An individual’s receipt of FERS retirement deductions for a period of service generally voids his right to a FERS retirement annuity for that period absent a redeposit of those deductions. 5 U.S.C. § 8424(a); Pagum v. Office of Personnel Management, 55 M.S.P.R. 648, 651 (1992); 5 C.F.R. §843.202(b). When, as here, the appellant denies receipt of a refund of retirement deductions, he bears the burden of proving such nonreceipt by preponderant evidence. Manoharan v. Office of Personnel Management, 103 M.S.P.R. 159, ¶ 12 (2006).2 Here, the administrative judge noted that, based on the agency’s documentary evidence, the appellant requested and received a refund of his retirement deductions. ID at 1-2. In his petition for review, the appellant does not dispute that he applied for a refund. PFR File, Tab 1. He reasserts that he did not receive the check OPM claims that it sent to him and argues that he has never been presented with proof that he was issued a refund. Id. at 4-5; IAF, Tab 1 at 4, 2 As noted, this appeal involves an application for retirement benefits and the refund of deductions under FERS. Manoharan and other cases cited in this decision involve applications and refunds under the Civil Service Retirement System (CSRS). Because of the similarities between the retirement systems, we discern no reason not to rely on the cases involving the CSRS in this decision. 4 6. As discussed below, the appellant failed to prove nonreceipt of a refund of his retirement deductions by preponderant evidence.3 The Board has previously held that normal office records, compiled in the ordinary course of business, are admissible and are entitled to substantial weight. Rint v. Office of Personnel Management , 48 M.S.P.R. 69, 72, aff’d per curiam , 950 F.2d 731 (Fed. Cir. 1991) (Table). When definitive proof that the appellant actually received a refund no longer is available because of the appellant’s delay in pursuing his claim, the Board has found that OPM’s ability to defend the appeal has been impaired and that OPM would be unduly prejudiced if the Board required it to produce definitive proof of the appellant’s actual receipt of the check. See Sosa v. Office of Personnel Management, 76 M.S.P.R. 683, 686 (1997) (finding OPM was prejudiced by 25-year delay in raising a claim of nonreceipt of a check); DeLeon v. Office of Personnel Management, 49 M.S.P.R. 369, 373 (1991) (finding OPM was prejudiced by 23-year delay in raising a claim of nonreceipt of a check). In such circumstances, the Board has found that OPM’s record of an appellant’s application for a refund, in conjunction with records reflecting that it authorized payment, is sufficient to establish that the appellant received the refund. DeLeon, 49 M.S.P.R. at 372-73; Rint, 48 M.S.P.R. at 72. The Board has also found that, if an appellant can show that he placed OPM on notice that he did not receive the requested refund within a period of time such that OPM could have ascertained whether the check it mailed was 3 As noted, the administrative judge ordered the appellant to show cause why his appeal should not be dismissed for failure to state a claim upon which relief could be granted because he had obtained a refund of his retirement deductions. IAF, Tabs 6-7. Although failure to state a claim was an incorrect legal theory, this error did not prejudice the appellant as he was clearly informed that the issue in the appeal was his receipt of a refund of his deductions. Id.; see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 ) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). Furthermore, while the administrative judge failed to set forth the appellant’s burden of proof, this error also did not prejudice the appellant as he did not respond and the agency’s submission stated that the appellant bore the burden of proof by preponderant evidence. IAF, Tab 5 at 5-6. 5 negotiated, he may be able to carry his burden to establish that the refund was not paid. See Manoharan , 103 M.S.P.R. 159, ¶ 18 (finding that the appellant informing OPM of his nonreceipt of a check less than 4 months after its apparent mailing would have allowed OPM to ascertain the status of the check). OPM’s routine records demonstrate that the appellant applied for a refund, and that OPM authorized a refund. IAF, Tab 5 at 16, 20, 26-27. There is no evidence that the check was not processed, and there is no evidence showing nonreceipt of the refund by the appellant. In the present appeal, there is close to a 19-year delay between when OPM issued the refund check and when the appellant applied for retirement benefits and claimed nonreceipt of the refund check. Id. at 13, 16. Because of the length of delay in raising the claim, and because the only definitive record of actual payment is not available, OPM would be unduly prejudiced were we to require that it produce definitive proof of actual receipt of the check. See Rint, 48 M.S.P.R. at 72. Weighing OPM’s documentary evidence against the appellant’s unsupported assertions, we find that the appellant has failed to overcome the evidence to the contrary and prove by preponderant evidence that he did not receive a refund of his retirement deductions in 2002. The appellant’s receipt of his retirement deductions voided his right to an annuity based on his service covered by the refund. See Pagum, 55 M.S.P.R. at 651. Thus, we affirm OPM’s final decision denying the appellant’s FERS retirement application.6 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.7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s9 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 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	Talamante_RichardDE-0842-21-0222-I-1__Final_Order.pdf	2024-04-16	RICHARD TALAMANTE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0842-21-0222-I-1, April 16, 2024	DE-0842-21-0222-I-1	NP
1,768	https://www.mspb.gov/decisions/nonprecedential/Richardson_Dustin_S_DA-0731-18-0343-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DUSTIN S. RICHARDSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0731-18-0343-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dustin S. Richardson , Mcloud, Oklahoma, pro se. John P. Gniadek , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal as untimely filed.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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 administrative judge found that the appeal was untimely filed by 2 days, but it was actually untimely filed by 1 day. interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 argues in his petition for review that he was unable to meet the deadline for filing an appeal because he had recently been released from the hospital following surgery and was taking pain medication. Petition for Review (PFR) File, Tab 1 at 4-5, Tab 3 at 3. To establish that an untimely filing was the result of an illness, the party must: (1) Identify the time period during which he suffered from the illness; (2) submit medical evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his appeal or a request for an extension of time. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). To establish good cause for waiver of the Board's filing deadline based on physical or mental illness, there is no general incapacitation requirement; rather, the appellant is required to explain only why his alleged illness impaired his ability to meet the Board's filing deadline or seek an extension of time. Lacy, 78 M.S.P.R. at 437 n.*. In support of his allegation that he was prevented from timely filing his appeal because of a medical condition, the appellant submits discharge papers for a surgery that took place a number of months before the filing period. PFR File, Tab 3 at 4-6. He has submitted no evidence showing that he was impaired during2 the relevant time period. Because these documents do not show that the appellant had an impairment that interfered with his ability to timely file his appeal or request an extension, we have not considered them. Further, the appellant submits a decision from a state commission concerning his application for unemployment benefits, but this document does not pertain to the question of timeliness and we have not considered it. 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions to provide a comprehensive summary of all available review options. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 5 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),”, then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must 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 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Richardson_Dustin_S_DA-0731-18-0343-I-1__Final_Order.pdf	2024-04-16	DUSTIN S. RICHARDSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0731-18-0343-I-1, April 16, 2024	DA-0731-18-0343-I-1	NP
1,769	https://www.mspb.gov/decisions/nonprecedential/Rich_CherylPH-0831-21-0067-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHERYL RICH, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0831-21-0067-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cheryl Rich , Blackwood, New Jersey, 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 upheld the reconsideration decision of the Office of Personnel Management (OPM) finding the appellant was overpaid $14,077 in annuity benefits and was ineligible for a waiver of recovery of the overpayment, and adjusting the repayment schedule from 36 monthly installments of $391.02 with a final 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). payment of $0.28, to 93 monthly installments of $150 with a final payment of $127. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant retired from Federal service in April 2019 and began receiving an annuity under the Federal Employees’ Retirement System (FERS). Initial Appeal File (IAF), Tab 2 at 1, Tab 16 at 96-99. In May 2020, the appellant became entitled to Social Security Disability Insurance (SSDI) benefits, retroactive to October 1, 2019. IAF, Tab 2 at 1, Tab 16 at 28. Between October 1, 2019, and May 1, 2020, the appellant’s FERS annuity benefit was not reduced by the SSDI benefit as required by 5 U.S.C. § 8452, resulting in an overpayment of $14,077. IAF, Tab 2. The appellant requested reconsideration of OPM’s findings, and OPM issued a reconsideration decision that denied the appellant’s request for a waiver. Id. OPM adjusted the repayment schedule from 36 monthly installments of $391.02 and a final payment of $0.28, to 93 monthly installments of $150 and a final payment of $127. Id. at 4.2 The appellant filed an appeal with the Board. Petition for Review (PFR) File, Tab 1. The administrative judge issued an initial decision upholding OPM’s reconsideration decision, including the reduced repayment schedule of 93 monthly installments of $150 and a final payment of $127. IAF, Tab 19, Initial Decision (ID). The appellant has filed a petition for review, and the agency has filed a response. PFR File, Tabs 1, 4. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s petition for review does not dispute the existence or amount of the overpayment. PFR File, Tab 1 . The appellant requests to be “responsible for half” the debt or, in the alternative, an adjustment to the repayment schedule based on financial hardship. Id. We construe the appellant’s request to be “responsible for half” the debt as a request for waiver of one-half of the debt. However, once the Board finds that an overpayment occurred and that the amount of the debt is correct, it lacks any authority in statute or regulation to unilaterally reduce the amount of the debt. Gott v. Office of Personnel Management , 97 M.S.P.R. 538, ¶ 10 (2004). The Board has the statutory authority to order OPM to waive recovery of the entire overpayment if the recipient shows both that she is without fault and that recovery would be against equity and good conscience. 5 U.S.C. § 8470(b); Boone v. Office of Personnel Management , 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R. § 845.301. When the appellant is not without fault in creating the overpayment, she is not entitled to a waiver of the overpayment. Boring v. Office of Personnel Management, 79 M.S.P.R. 600, ¶ 4 (1998). We agree with the administrative judge’s finding that the appellant is not without fault in creating the overpayment, and therefore she is not entitled to a waiver of the debt. ID at 4-6; see id., ¶ 4. We also agree with the administrative judge’s finding that the appellant knew or should have known that she was receiving an overpayment, and therefore the set-aside rule applies, requiring the3 appellant to have preserved the overpaid funds for repayment to OPM. ID at 4-6; see James v. Office of Personnel Management , 72 M.S.P.R. 211, 217 (1996). Because the set-aside rule applies, financial hardship is not a basis for waiver. See Dorrello v. Office of Personnel Management , 91 M.S.P.R. 535, ¶ 7 (2002). Although the appellant is ineligible for waiver, she may be entitled to an adjustment of the recovery schedule if she demonstrates that it would cause her financial hardship to make payment at the scheduled rate. See id.; 5 C.F.R. § 845.301. The appellant’s request for the monthly repayment schedule to be reduced from $391.02 appears to misunderstand OPM’s reconsideration decision and the initial decision, which adjusted the repayment schedule from 36 monthly installments of $391.02 with a final payment of $0.28, to 93 monthly installments of $150 with a final payment of $127. PFR File, Tab 1 at 3; IAF, Tab 2; ID at 7. The appellant does not assert, and we discern no basis to find, that the repayment of $150 monthly would cause a financial hardship. The appellant submitted a Financial Resource Questionnaire (FRQ) asserting a monthly income of $4,341 and monthly expenses of $3,732.49, resulting in a monthly surplus of $608.51. IAF, Tab 16 at 54-57. The administrative judge accepted these representations and found the appellant’s expenses to be normal and ordinary living expenses. ID at 6-7. The appellant asserts in her petition for review that she recently accrued a monthly expense of $269 for her car in addition to her other bills, that her monthly mortgage payment is $1,311, and that she will have upcoming medical expenses and an increase to her insurance costs. PFR File, Tab 1. The administrative judge considered the appellant’s mortgage payment2 in calculating her monthly expenses. ID at 6-7. Even considering the appellant’s additional car payment of $269, which was not included in the FRQ, we find that 2 In calculating the appellant’s monthly income and expenses, the administrative judge accepted the appellant’s asserted mortgage payment of $1,337.07 plus $95 in monthly fees, which is higher than the mortgage payment asserted in the appellant’s petition for review and the appellant’s credit report. IAF, Tab 16 at 29-30, 54; ID at 6-7; PFR File, Tab 1 at 3. 4 she has a monthly surplus of more than $300 and liquid assets totaling nearly $10,000. IAF, Tab 16 at 54-56. Therefore, the appellant has failed to demonstrate that repayment at a rate of $150 monthly will cause a financial hardship. ID at 6-7. If the appellant’s financial circumstances change further, she may seek an adjustment from OPM pursuant to its Policy Guidelines on the Disposition of Overpayments under the Civil Service Retirement System and the Federal Employees’ Retirement System § I.D.12. IAF, Tab 16 at 100-38. Based on the foregoing, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 7 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Rich_CherylPH-0831-21-0067-I-1__Final_Order.pdf	2024-04-16	CHERYL RICH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-21-0067-I-1, April 16, 2024	PH-0831-21-0067-I-1	NP
1,770	https://www.mspb.gov/decisions/nonprecedential/Jones_J._P_PH-0831-18-0364-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD J. PENDLETON JONES, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-0831-18-0364-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 J. Pendleton Jones , Marriottsville, Maryland, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the final decision from the Office of Personnel Management (OPM) finding that his Civil Service Retirement System annuity had been properly calculated. On petition for review, the appellant argues for the first time that OPM did not provide him with the proper information required for him to 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). an informed decision regarding his retirement. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Jones_J._P_PH-0831-18-0364-I-1__Final_Order.pdf	2024-04-16	J. PENDLETON JONES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-18-0364-I-1, April 16, 2024	PH-0831-18-0364-I-1	NP
1,771	https://www.mspb.gov/decisions/nonprecedential/Lucero_DanielSF-0752-18-0212-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DANIEL LUCERO, Appellant, v. SMALL BUSINESS ADMINISTRATION, Agency.DOCKET NUMBER SF-0752-18-0212-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Justin Schnitzer , Esquire, Pikesville, Maryland, for the appellant. Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant. Ashley E. Obando , Esquire, Claudine Landry , Esquire, and Kenneth M. Bledsoe , 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 his removal. On petition for review, the appellant challenges the administrative judge’s findings regarding the two sustained specifications 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). charge 1, as well as charges 6 and 7, including their relation to his affirmative defense of retaliation for protected equal employment opportunity activity. In addition, the appellant argues that the penalty of removal is not 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 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Lucero_DanielSF-0752-18-0212-I-1__Final_Order.pdf	2024-04-16	DANIEL LUCERO v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. SF-0752-18-0212-I-1, April 16, 2024	SF-0752-18-0212-I-1	NP
1,772	https://www.mspb.gov/decisions/nonprecedential/Reynolds_BarbaraPH-1221-17-0057-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARBARA REYNOLDS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-1221-17-0057-W-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Cassandra Koonce , Charlotte Hall, Maryland, for the appellant. Emily Markos , 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 her individual right of action (IRA) appeal as settled. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant is a GS-11 Claims Specialist who filed a complaint with the Office of Special Counsel (OSC). Initial Appeal File (IAF), Tab 1 at 1, 5. In a letter summarizing the appellant’s complaint, OSC indicated that she had alleged that she was not selected for a promotion in reprisal for refusing to obey one of her manager’s orders to inflate a veteran’s disability benefits in violation of applicable laws, rules, and regulations. IAF, Tab 3 at 2-3. On September 29, 2016, OSC terminated its investigation of the appellant’s complaint. Id. at 6-8. The appellant then filed this IRA appeal on November 1, 2016. IAF, Tab 1. In May 2017, the appellant and the agency entered into a settlement agreement. IAF, Tab 17. Under the terms of the agreement, the appellant agreed to withdraw this appeal with prejudice and release all her claims against the agency. Id. at 4-5. The agency agreed to provide the appellant with training and an award. Id. at 6. On May 23, 2017, the administrative judge dismissed the appeal as settled and entered the settlement agreement into the record for enforcement purposes. IAF, Tab 18, Initial Decision (ID). The initial decision noted that it would become final on June 27, 2017, unless a petition for review was filed by that date. ID at 3. Approximately 11 months later, on June 6, 2018, the Office of the Clerk of the Board received a petition for review filed by the appellant via mail, postmarked May 19, 2018. Petition for Review (PFR) File, Tab 1 at 1, 17. The appellant indicates that her manager and supervisor had retaliated against her and that the initial decision failed to make her whole by providing her with a promotion. PFR File, Tab 1 at 4-5. The appellant stated in a motion to accept her late filed petition for review that good cause existed because she was “totally incapacitated” between April 12, 2018, and May 2, 2018. Id. at 8. On June 6, 2018, the Clerk’s Office issued a notice acknowledging the appellant’s petition and informing her that her petition was untimely filed.2 PFR File, Tab 2. The Clerk’s Office set a deadline of June 21, 2018, for the appellant to file a motion to either accept the filing as timely or waive the time limit for good cause. Id. at 2. The appellant has not filed such a motion with the Board. 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. 5 C.F.R. § 1201.114(e). The date of filing by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l). Here, the initial decision was issued on May 23, 2017, and the appellant did not show that she received it more than 5 days after it was issued. Accordingly, she was required to file her petition for review by June 27, 2017. Instead, her petition for review was filed by mail, postmarked May 19, 2018. PFR File, Tab 1 at 17. It was therefore 326 days late. The Board will excuse the untimely filing of a petition for review only upon a showing of good cause for the delay. Via v. Office of Personnel Management, 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). To determine whether an appellant has shown good cause, the Board will consider the length of the delay; the reasonableness of her excuse and her showing of due diligence; whether she is proceeding pro se; and whether she has presented evidence of the existence of circumstances beyond her control that affected her ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to her inability to timely file her petition for review. 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).3 Here, the appellant is represented by a non-attorney union representative.2 IAF, Tab 1 at 3, Tab 17 at 9; PFR File, Tab 1 at 6. Her approximately 10 -month filing delay is significant. See Batiste v. U.S. Postal Service , 98 M.S.P.R. 621, ¶ 8 (2005) (finding a pro se appellant’s approximately 10-month filing delay to be significant), aff’d, 158 F. App’x 294 (Fed. Cir. 2005). She has done nothing more than vaguely assert that her petition was untimely because she was “totally incapacitated” between April 12, 2018, and May 2, 2018. PFR File, Tab 1 at 8. Her assertion is not made under penalty of perjury. Id. But, even if true, her assertion does not explain why she did not file her petition for review during the over 9-month period between June 27, 2017, and April 12, 2018. See Alexander v. Department of Veterans Affairs , 76 M.S.P.R. 285, 288-89 (1997) (dismissing the appellant’s petition for review as untimely filed because, even if the Board found good cause for waiving a portion of the filing delay, the appellant failed to offer any evidence or argument to explain another portion of the filing delay), aff’d, 152 F.3d 948 (Fed. Cir. 1998) (Table). It is also significant that the appellant did not respond to the letter from the Clerk’s Office informing her that untimely petitions for review, such as hers, had to be accompanied by a motion to either accept the petition as timely or waive the time limit for good cause, and affording her the opportunity to make such a motion. PFR File, Tab 2 at 1-2. Under these circumstances, we find that the appellant has failed to establish good cause for her untimely filed petition for review. See Batiste, 98 M.S.P.R. 621, ¶ 8; Alexander, 76 M.S.P.R. at 288-89. In her petition for review, the appellant may be alleging that the agency has not adhered to the terms of the May 2017 settlement agreement. PFR File, Tab 1 at 6. To the extent that the appellant seeks enforcement of the settlement agreement, she must file a petition for enforcement with the regional office that 2 The appellant’s petition for review is apparently signed by her representative, but it is unclear to what extent her representative assisted her in drafting or filing the petition for review. PFR File, Tab 1 at 6. Even if the appellant were proceeding pro se, our decision would remain the same.4 issued the initial decision. See Reid v. U.S. Postal Service , 61 M.S.P.R. 84, 90 (1994); 5 C.F.R. § 1201.182(a). 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 IRA appeal. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the 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 court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file6 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction .4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 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 for Merit Systems Protection Board appellants before the 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	Reynolds_BarbaraPH-1221-17-0057-W-1__Final_Order.pdf	2024-04-16	BARBARA REYNOLDS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-17-0057-W-1, April 16, 2024	PH-1221-17-0057-W-1	NP
1,773	https://www.mspb.gov/decisions/nonprecedential/Turner_GregoryAT-0353-21-0103-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GREGORY TURNER, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER AT-0353-21-0103-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gregory Turner , Memphis, Tennessee, pro se. Cynthia R. Allen , Esquire, Memphis, Tennessee, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the application of collateral estoppel as a basis for dismissing this appeal, we AFFIRM the initial decision’s dismissal for lack of jurisdiction. Over the years, the appellant has filed a number of Board appeals. Many were restoration appeals relating to a compensable injury. E.g., Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-10-0960-I -1; Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-14-0838-I-1. Some others were challenges under the Veterans Employment Opportunities Act of 1998. E.g., Turner v. U.S. Postal Service, MSPB Docket No. AT-3330-17-0026-I-1; Turner v. U.S. Postal Service, MSPB Docket No. AT-0330-20-0125-I-1. In the appeal currently before the Board, the appellant’s initial pleading simply alleged, “refusal to take action non communication.” Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-21-0103-I-1 (0103 appeal), Initial Appeal File (0103 IAF), Tab 1 at 3. The administrative judge issued a show cause order. 0103 IAF, Tab 4. Among other things, he explained that it was unclear what the appellant was challenging, whether it involved matters already litigated in one of the appellant’s prior Board appeals, and whether it fell within the Board’s limited jurisdiction. Id. at 2. As the appellant responded to the administrative judge’s show cause order, the appellant indicated that he spoke with agency officials in December 2020 about his continued status, off-duty. 0103 IAF, Tab 5 at 4. He alleged that his situation gave rise to multiple potential claims, such as a constructive suspension.2 Id. at 4-7. With this pleading, the appellant attached paystubs showing that he was on leave without pay. Id. at 9-11. The agency also responded to the show cause order, arguing that the instant appeal should be dismissed. 0103 IAF, Tab 6. Among other things, the agency explained that the appellant had been off work since 2014 due to a compensable injury. Id. at 4-5. The agency also described the burden for establishing jurisdiction over a restoration appeal and argued that the appellant had not met that burden in this appeal. Id. at 6-8. The administrative judge dismissed the instant appeal based on collateral estoppel or, in the alternative, lack of jurisdiction. 0103 IAF, Tab 7, Initial Decision (0103 ID) (referencing Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-20-0424-I-1 (0424 appeal)). The appellant has filed a petition for review. Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-21-0103-I-1, Petition for Review (0103 PFR) File, Tab 1 at 5-7, with agency policies pertaining to reasonable accommodation attached, id. at 8-102. The agency has filed a response. 0103 PFR File, Tab 3. Again, the appellant’s initial filing in the instant appeal did not clearly indicate what he intended to challenge. 0103 IAF, Tab 1. As a result, the administrative judge issued a show cause order, which resulted in the appellant indicating that he contacted the agency in December 2020 about “how much longer” he will “be held out of the workplace.” 0103 IAF, Tab 5 at 4. The appellant did not allege that the agency had denied a request for restoration at that time, but he did argue that his continued status off work amounted to a constructive suspension, it violated his right to due process, and it constituted harmful error. Id. To the extent that the appellant was attempting to present a constructive suspension appeal stemming from the absence caused by his compensable injury, the administrative judge was correct to note that his rights and remedies are subsumed by the restoration appeal process. ID at 7; see, e.g., Bohannon v. U.S.3 Postal Service, 115 M.S.P.R. 629, ¶¶ 11-12 (2011); Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473, ¶¶ 16-22 (2010). The appellant has presented no argument to the contrary on review. 0103 PFR File, Tab 1 at 5-7. To the extent that the appellant was attempting to present a claim that the agency has once again denied him restoration, the administrative judge correctly found that he failed to meet the corresponding jurisdictional burden . ID at 3-4, 7. In particular, the appellant failed to present nonfrivolous allegations that he recovered sufficiently to return to duty; that the agency denied his request for restoration; or that such a denial was arbitrary and capricious. ID at 7; see Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 12 (describing these as among the elements required for an appellant to establish jurisdiction over a restoration appeal as a partially recovered employee). Again, the appellant has presented no substantive argument to the contrary on review. 0103 PFR File, Tab 1 at 5-7. Although the appellant’s petition does not challenge the administrative judge’s findings, it does contain an explanation for his petition for review. Id. at 5-6. The appellant seems to assert that he believed his initial filings would suffice for purposes of getting a hearing, where he intended to identify and document “all the violations” by the agency. Id. at 6. The Board has routinely recognized that pro se filings are to be construed liberally. E.g., Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 7 (2010). Even so, we find no basis for reaching a conclusion different than the administrative judge as to the appellant failing to establish jurisdiction over the instant appeal. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have jurisdiction over all matters involving a Federal employee that are allegedly unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995).4 Here, the appellant’s instant appeal indicates that he contacted the agency in December 2020, and he remains in an off-duty status, not being paid. However, despite repeated notice of his jurisdictional burden for a restoration appeal, in this appeal and in those he has filed previously, the appellant presented nothing below or on review to meet that burden for this appeal. He has also failed to present any other reason why the Board would have jurisdiction in this appeal, where he has presented little more than bare assertions that he remains off work. For these reasons, we agree with the administrative judge’s dismissal for lack of jurisdiction .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 2 As previously noted, the administrative judge also cited collateral estoppel as a basis for dismissing the instant appeal. 0103 ID at 5-6 (referencing Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-20-0424-I-1). At the time, the appellant had an appeal pending before the U.S. District Court for the Western District of Tennessee, where it appears as if the appellant may have been attempting to challenge the decision from the earlier appeal. Id. Because of this, and because dismissal for lack of jurisdiction was an appropriate disposition in the instant appeal, we vacate the administrative judge’s finding regarding collateral estoppel as a basis for dismissal. We need not decide whether collateral estoppel applies to the circumstances at hand. See Hooker v. Department of Veterans Affairs , 122 M.S.P.R. 551, ¶¶ 4, 12 (2015) (modifying a dismissal based on collateral estoppel to instead dismiss based on res judicata and, therefore, finding no reason to determine whether collateral estoppel applies); compare Davis v. U.S. Postal Service , 119 M.S.P.R. 22, ¶ 16 (2012) (finding that collateral estoppel did not apply where a petition for review was pending before the Board in an initial appeal at the time of a second appeal about the same issue), overruled on other grounds by Cronin , 2022 MSPB 13, with Cataulin v. U.S. Postal Service, 41 M.S.P.R. 681, 683 (1989) (finding that collateral estoppel did apply to a district court’s guilty verdict for criminal charges, despite the employee’s pending appeal, because that appeal was not subject to de novo review). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Turner_GregoryAT-0353-21-0103-I-1__Final_Order.pdf	2024-04-16	GREGORY TURNER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-21-0103-I-1, April 16, 2024	AT-0353-21-0103-I-1	NP
1,774	https://www.mspb.gov/decisions/nonprecedential/Marsh_Claudia_L_SF-0353-22-0200-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAUDIA L. MARSH, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0353-22-0200-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 G uillermo Mojarro , Corpus Christi, Texas, for the appellant. Michael R. Tita , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her restoration appeal for lack of jurisdiction. On petition for review, the appellant generally argues that the administrative judge failed to properly review the record and reasserts that the agency has improperly failed to provide her work within her medical restrictions. 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). 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	Marsh_Claudia_L_SF-0353-22-0200-I-1_Final_Order.pdf	2024-04-16	CLAUDIA L. MARSH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-22-0200-I-1, April 16, 2024	SF-0353-22-0200-I-1	NP
1,775	https://www.mspb.gov/decisions/nonprecedential/Marsh_Claudia_L_SF-0353-21-0393-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLAUDIA L. MARSH, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0353-21-0393-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 G uillermo Mojarro , Corpus Christi, Texas, for the appellant. Michael R. Tita , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her restoration appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant is employed by the agency as a Clerk at the Hemet Post Office in Hemet, California. Initial Appeal File (IAF), Tab 1 at 1. She suffered injuries to her right shoulder on December 21, 2007, and September 12, 2012, for which the Office of Workers’ Compensation Programs (OWCP) accepted her claims. Id. at 8. In September 2014, the appellant’s treating physician indicated that she could return to work with permanent and stationary restrictions of “[n]o repetitive overhead reaching/lifting and [n]o lifting [greater than] 10lbs.” IAF, Tab 5 at 7. In January 2016, the appellant accepted an offer of modified assignment (OMA) as a Sales and Service Associate (SSA). Id. at 5-6. The SSA position incorporated her permanent restrictions and included the following duties: “Passport/Window/ECC; Nixies Room/ [illegible] Left Shelves/Returns; 2nd Notice and General Delivery; and Acct Cart/Clear Carriers/Throw Parcels within Restrictions.” Id. The appellant worked as an SSA until May 14, 2021, when she was assigned to work as a retail clerk at the front window. IAF, Tab 1 at 6, Tab 6 at 4-6, 13. She worked as a retail clerk until May 19, 2021, when she submitted a request for leave under the Family and Medical Leave Act (FMLA)2 2 In support of the request for FMLA leave, the appellant’s physician certified that she is unable to perform her job functions citing “inability to concentrate, easily distracted,2 and has remained off work since May 20, 2021. IAF, Tab 7 at 5, 12-15. The appellant thereafter filed the instant restoration appeal and requested a hearing. IAF, Tab 1. In her initial appeal, the appellant argued that her 2016 OMA was a restoration denial because the agency should have provided her with a rehabilitation position rather than allowing her to accept the OMA. IAF, Tab 1 at 6, Tab 6 at 4-6. The appellant also argued that her subsequent May 14, 2021 “retail clerk” assignment was improper because it violated her medical restrictions and that she was not provided advance notice of the assignment or appeal rights. IAF, Tab 6 at 4-6, 13. The administrative judge issued an order apprising the appellant of her burden of proving jurisdiction over a restoration appeal and instructed her to file evidence and argument on the issue. IAF, Tab 2 at 2-8. The appellant responded to the show cause order. IAF, Tabs 4, 6. The agency filed a motion to dismiss for lack of jurisdiction. IAF, Tab 7. Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that she failed to make a nonfrivolous allegation that the agency denied her request for restoration following a compensable injury. IAF, Tab 11, Initial Decision (ID) at 1, 11. Specifically, he concluded that the agency had provided the appellant with a modified assignment with restrictions and that she failed to set forth sufficient evidence and argument that the agency’s restoration was so unreasonable as to amount to a denial of restoration within the Board’s jurisdiction. ID at 10. Thus, the administrative judge found that she failed to make a nonfrivolous allegation that the agency denied her restoration or that the agency’s actions were arbitrary and capricious. ID at 10-11. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 2. The agency has filed a response, PFR File, Tab 8, to which the and tearful.” Id. at 13. 3 appellant has responded, PFR File, Tab 9. The appellant also filed a motion for leave to submit additional evidence. PFR File, Tab 6. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s motion for leave to file additional evidence is denied. In the appellant’s motion, she is seeking leave to submit “[an] OWCP approval letter, a declaration created by [her] on February 5, 2022 related to her OWCP case . . . [,] and a pleading which she has submitted to the Board in a different appeal.” PFR File, Tab 6 at 3. According to the appellant, the instant appeal relates to her 2007 and 2012 OWCP claims for shoulder injuries. IAF, Tab 1 at 6, 8, Tab 6 at 12-13. She specifies in her motion that the OWCP approval letter and the declaration she wishes to submit is related to a foot injury that occurred on May 22, 2021. 3 Id. Although the availability of the evidence she seeks to submit may postdate the close of the record and therefore may be considered new, the appellant has failed to explain how this evidence is related or material to the 2007 and 2012 OWCP claims at issue here. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). She also failed to explain how this evidence would warrant an outcome different from that of the initial decision. See Russo, 3 M.S.P.R. 345, 349. Accordingly, the appellant’s motion for leave to submit additional evidence is denied. The appellant has failed to nonfrivolously allege the Board’s jurisdiction over her restoration claim. The Federal Employees’ Compensation Act and the implementing regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353 3 The appellant has another appeal pending before the Board challenging the agency’s alleged failure to restore her following the May 22, 2021 injury. Marsh v. U.S. Postal Service, MSPB Docket No. SF-0353-22-0200-I-1, Appeal File (0200 AF), Tab 2. The evidence that she wishes to submit is part of the record in that appeal. 0200 AF, Tab 7 at 16-19, 38-39. On July 21, 2022, the administrative judge issued an initial decision dismissing that appeal for lack of jurisdiction. 0200 AF, Tab 19. The appellant has filed a petition for review of that decision.4 provide, amongst other things, employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Under OPM’s regulations, such employees have different substantive rights based on whether they have fully recovered, partially recovered, or are physically disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees are those who, “though not ready to resume the full range” of duties, have “recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.102. OPM’s regulations require that agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.301(d). The Board has jurisdiction to review whether an agency’s denial of restoration to a partially recovered employee was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c). To establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make nonfrivolous allegations that: (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of her; (3) the agency denied her request for restoration; and (4) the agency’s denial was “arbitrary and capricious.” Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 12 (2016); 5 C.F.R. § 1201.57(a)(4), (b) . Once an appellant establishes jurisdiction, she is entitled to a hearing at which she must prove the merits of her restoration appeal by a preponderance of the evidence. Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). As the administrative5 judge correctly found, it is undisputed that the appellant satisfies the first two criteria.4 ID at 7. On review, the appellant challenges the administrative judge’s determination that the Board lacks jurisdiction over her appeal. PFR File, Tab 2 at 5-6. Specifically, she argues that the agency violated her restoration rights by “not properly reinstat[ing] [her] into a position within her medical restrictions.” Id. at 5. We are not persuaded. A partially recovered employee may not appeal the details or circumstances of her restoration; she may appeal to the Board only for a determination of whether the agency acted arbitrarily and capriciously in denying restoration. Kingsley, 123 M.S.P.R. 365, ¶ 13. Nevertheless, under certain circumstances, a restoration may be deemed so unreasonable as to amount to a denial of restoration within the Board’s jurisdiction. For example, a claim that restoration effectively was denied may involve allegations that a partially recovered appellant is incapable of performing the job duties of the position to which she was restored. Id. Here, the appellant accepted a modified assignment as an SSA in 2016. IAF, Tab 1 at 6, Tab 5 at 5-6, Tab 6 at 13. The administrative judge found that the appellant offered no evidence or argument to establish that this job offer was not in compliance with her physical limitations. ID at 9-10. The appellant also conceded below that in the SSA position “[she] had been working safely, on a desk in an office for about the last five years, and, were [sic] [she] could perform her assigned duties within her medical restriction.” IAF, Tab 4 at 4. Thus, we agree with the administrative judge’s finding that the appellant failed to nonfrivolously allege that the offer was so unreasonable as to amount to a denial of restoration within the Board’s jurisdiction. ID at 8. 4 The administrative judge found that the appellant suffered compensable injuries in 2007 and 2012. ID at 7. He further found it undisputed that “the appellant recovered sufficiently to return to duty . . . and accepted the 2016 [SSA position] with restrictions effective January 30, 2016, and continued to perform the [SSA] duties from a desk until May 14, 2021.” ID at 7; IAF, Tab 5 at 5-6, Tab 6 at 13, 25, Tab 7 at 4-5. 6 The appellant also appears to allege on review that the agency has not allowed her to return to work after improperly reassigning her to a retail clerk position in May 2021. PFR File, Tab 2 at 5-6. The Board has found that an agency’s rescission of a previously provided restoration or the discontinuation of a limited duty position may constitute an appealable denial of restoration. See Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345, ¶ 11 (2010). The administrative judge found unavailing the appellant’s argument that performing her tasks at the window, rather than at a desk inside an office, constituted a denial of restoration. ID at 9. He also found little evidence that her absence that started in May 2021 was related to an OWCP compensable injury. ID at 10. We agree. A compensable injury is defined as one that is accepted by OWCP as job-related and for which medical or monetary benefits are payable from the Employees’ Compensation Fund. Frye v. U.S. Postal Service, 102 M.S.P.R. 695, ¶ 9 (2006). The determination of whether an individual suffers from a compensable medical condition is within the exclusive purview of OWCP. Simonton v. U.S. Postal Service , 85 M.S.P.R. 189, ¶ 11 (2000). The record below is devoid of evidence that the appellant’s absence beginning in May 2021 was related to her right shoulder injuries. IAF, Tab 6. Instead, the record reflects that she submitted an FMLA request to the agency with supporting documentation from her medical providers detailing mental and physical restrictions which appear to be unrelated to her compensable injuries. IAF, Tab 6 at 24, 26-31, Tab 7 at 11-15. As the agency argued below, the medical evidence supports a finding that the appellant’s absence is related to her FMLA request. IAF, Tab 6 at 24, 26-31, Tab 7 at 5, 11-15. Lastly, the appellant asserts that the administrative judge erred in denying her motion to compel discovery responses because “[he] was mistaken as the [a]gency’s response to the propounded discovery was due by July 27, 2021 and not by not [sic] July 21, 2021.” PFR File, Tab 2 at 5-6. However, she fails to identify any specific items that she was unable to obtain in discovery or how7 those items would have enabled her to meet her jurisdictional burden of proof. Id.; see 5 C.F.R. § 1201.72(a). The Board will not find reversible error in an administrative judge’s discovery rulings absent an abuse of discretion that prejudiced the appellant’s substantive rights. Jones v. Department of Health and Human Services , 119 M.S.P.R. 355, ¶ 18, aff’d per curiam , 544 F. App’x 976 (Fed. Cir, 2013). Consequently, the appellant has failed to establish that the administrative judge abused his discretion in denying her discovery motion. Accordingly, we find that the administrative judge correctly found that the appellant was not entitled to a hearing and properly dismissed the appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you9 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Marsh_Claudia_L_SF-0353-21-0393-I-1_Final_Order.pdf	2024-04-16	CLAUDIA L. MARSH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-21-0393-I-1, April 16, 2024	SF-0353-21-0393-I-1	NP
1,776	https://www.mspb.gov/decisions/nonprecedential/Alford_WadeDE-4324-20-0132-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WADE ALFORD, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DE-4324-20-0132-I-1 DATE: April 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 J.R. Pritchett , McCammon, Idaho, for the appellant. Kirk C. Lusty , 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 denied his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application 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). of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 preference eligible veteran, was a City Carrier for the agency. Initial Appeal File (IAF), Tab 18 at 34, 70. On December 11, 2019, a coworker knocked over a pile of mail that the appellant was preparing to load into his vehicle. Hearing Transcript (HT) at 7-10 (testimony of the appellant). The next morning, the appellant confronted this coworker about the incident, which led to a heated verbal altercation that almost turned physical before some other employees intervened. HT at 10-16 (testimony of the appellant). The appellant’s supervisor, who witnessed the incident, promptly placed the appellant on paid emergency leave, citing “threatening behavior.” IAF, Tab 18 at 21; HT at 48-50 (testimony of the supervisor). He declined to put the appellant’s coworker, a2 nonveteran, on emergency placement.2 HT at 65, 67-68 (testimony of the supervisor). The appellant was still on paid emergency leave when, on January 13, 2020, he filed the instant USERRA appeal. IAF, Tab 1. He contested the placement on leave and the attendant loss of overtime opportunities, alleging that these actions were based on his uniformed service.3 IAF, Tab 32 at 5. After a hearing, the administrative judge issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 46, Initial Decision (ID). He found that the appellant failed to prove that his uniformed service was a substantial or motivating factor in the agency’s actions. ID at 4-8. The appellant has filed a petition for review, disputing the administrative judge’s findings of fact and credibility determinations, particularly with regard to 2 The agency eventually removed the appellant over this incident. The appellant appealed the removal action, which is the subject of Alford v. U.S. Postal Service , MSPB Docket Nos. DE-0752-20-0208-I-1 and DE-0752-20-0208-I-2. During the pendency of the removal appeal, the agency rescinded the initial removal action and issued a new decision removing the appellant, which is the subject of Alford v. U.S. Postal Service, MSPB Docket No. DE-0752-21-0103-I-1. After the record closed on petition for review, the appellant sought to raise an additional argument that the administrative judge abused his discretion in denying his motion to amend the instant appeal to include the first removal action. PFR File, Tab 13 at 3; IAF, Tab 28 at 1-2. The administrative judge has broad authority to control the proceedings before him, including the authority to rule on motions. 5 C.F.R. § 1201.41(b)(8). Not only is the appellant’s objection to the administrative judge’s ruling untimely, but we find no abuse of discretion in that ruling because the appellant filed his motion at an advanced stage of the proceedings below and he had already filed a separate appeal of his removal at the time he filed his motion. IAF, Tab 28 at 1-2. Nor has the appellant shown that the administrative judge’s ruling prejudiced his substantive rights. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (holding 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). 3 Apart from his uniformed service, the appellant alleged that the agency retaliated against him for his prior participation in USERRA proceedings on behalf of another employee. IAF, Tab 11 at 4. The administrative judge found that the appellant failed to make a nonfrivolous allegation in this regard, and the appellant has not challenged the administrative judge’s finding. IAF, Tab 16 at 3 n.2. The appellant also raised claims related to two nonselections in 2014, but he withdrew these claims prior to the hearing. IAF, Tab 42 at 4.3 what happened during the December 12, 2019 altercation. Petition for Review (PFR) File, Tab 3.4 The agency has filed a response.5 PFR File, Tab 8. ANALYSIS Under 38 U.S.C. § 4311(a), a person who has performed service in a uniformed service shall not be denied employment or any benefit of employment by an employer on the basis of that performance of service. An employer is considered to have engaged in an action prohibited by 38 U.S.C. § 4311(a) if the person’s service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such service. 38 U.S.C. § 4311(c)(1). 4 The appellant initially filed his petition for review electronically before following up during the petition for review filing period with a substantially similar submission via facsimile. PFR File, Tabs 1, 3. The appellant subsequently faxed another two “replacement pages,” both of which appear to be identical to page 5 of the first fax. PFR File, Tab 3 at 5, Tab 4 at 2-3. In addressing the appellant’s arguments on review, we will cite to the petition for review found at Tab 3 of the petition for review file because this petition appears to encompass all the content of the other two submissions. 5 After the close of the record on review, the appellant filed a motion for leave to submit additional evidence. PFR File, Tab 10. Specifically, he alleges that, during the course of proceedings in a subsequent Board appeal, he came into possession of “information/affidavits” in a related equal employment opportunity (EEO) case that support his version of events. Id. at 3. He has amended his motion to include a request to submit hearing testimony from his appeals of his first and second removals, which he offers to prove inconsistencies in the testimony of an agency witness. PFR File, Tab 13. However, it is well settled that, 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 appellant has not explained why he was unable to timely obtain the information set forth in the affidavits from his EEO case. We recognize that the hearing in his removal appeals was held after the initial decision was issued in this case. Alford v. U.S. Postal Service , MSPB Docket No. DE-0752-20-0208-I-2, Initial Appeal File, Tabs 27-29. Nonetheless when, as here, evidence is offered merely to impeach the credibility of a witness, it is generally not considered new evidence warranting the granting of a petition for review. De Le Gal v. Department of Justice , 79 M.S.P.R. 396, 400 (1998), aff’d per curiam, 194 F.3d 1336 (Fed. Cir. 1999) (Table). Therefore, we deny the appellant’s motion and amended motion.4 In a USERRA appeal, an appellant initially must show by preponderant evidence that his military status was at least a substantial or motivating factor in the agency’s action, upon which the agency must prove, also by preponderant evidence, that the same action would have been taken for a valid reason despite the appellant’s protected status. Sheehan v. Department of the Navy , 240 F.3d 1009, 1013-15 (Fed. Cir. 2001). Military service is a motivating factor for an employment action if the agency “relied on, took into account, considered, or conditioned its decision” on the appellant’s military status. Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368 (Fed. Cir. 2009). Discriminatory motivation under USERRA may be reasonably inferred from a variety of factors, including proximity in time between the appellant’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the agency, the agency’s expressed hostility towards members protected by the statute together with knowledge of the appellant’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.” Sheehan, 240 F.3d at 1014. In determining whether an appellant has proven that his protected status or activity was part of the motivation for the agency’s conduct, all record evidence may be considered, including the agency’s explanation for the actions taken. Id. In this case, the administrative judge summarized the appellant’s arguments as that the appellant, a veteran, was treated differently than his coworker, a nonveteran, that his coworker and supervisor were afraid of him because he was a veteran, and that the first question a Postal Inspector asked him during the investigation was about his veteran status. ID at 4-5. However, the administrative judge found that the Postal Inspector, also a veteran, asked the appellant this question at the beginning of the interview in an attempt to build rapport with him. He found no indication that the question, in this context, suggested any bias by the Postal Inspector. ID at 5-6. The administrative judge also found no evidence to support the appellant’s allegation that his coworker and5 his supervisor were afraid of him because of his veteran status, and that it was not clear that the coworker even knew that the appellant was a veteran. ID at 5. The administrative judge also credited the supervisor’s explanation that he treated the appellant and the coworker differently because he perceived the appellant as the aggressor in the December 11, 2019 altercation. ID at 6-8. On petition for review, the appellant’s arguments are chiefly directed toward the administrative judge’s findings of fact and credibility determinations about what happened during the December 11, 2019 altercation, and hence whether the supervisor sincerely believed that the appellant was the aggressor.6 In this case, the administrative judge’s credibility determinations were grounded explicitly in witness demeanor after a video hearing. ID at 6. Hence, the Board owes these credibility determinations deference, and it may overturn them only if it has “sufficiently sound” reasons to do so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find that the appellant’s arguments do not provide us with sufficiently sound reasons to part from the administrative judge’s conclusions. The appellant points out several alleged inconsistencies in his supervisor’s and coworker’s testimonies. Regarding his coworker, the appellant alleges that his hearing testimony was inconsistent with his written statement of December 12, 2019, concerning how the two men bumped chests during this incident. PFR File, Tab 3 at 8-9. The coworker wrote in his December 12, 2019 statement in relevant part that, after the initial confrontation, “As I started to walk to the time clock he cut me off and got very aggressively in my face to the point 6 The appellant asserts that the administrative judge’s credibility determinations are indicative of bias. PFR File, Tab 3 at 3. A party claiming bias or prejudgment by an administrative judge must overcome the presumption of honesty and integrity that accompanies administrative adjudicators; mere conclusory statements do not provide a sufficient basis to establish bias. Higgins v. U.S. Postal Service , 43 M.S.P.R. 66, 68 (1989). We find that the appellant’s allegation that the administrative judge was biased merely demonstrates his disagreement with the administrative judge’s credibility determinations. See Ignacio v. Department of the Air Force , 12 M.S.P.R. 648, 251-52 (1982).6 his chest bumped my chest.” IAF, Tab 32 at 14. In his hearing testimony, the coworker stated, “As I turned to walk away, he got literally -- well, he bumped me with his chest,” and “as I turned to start walking away, he kind of cut me off and bumped me with his chest.” HT at 92-93 (testimony of the coworker). There is nothing inconsistent about these two accounts. Regarding the supervisor, the appellant argues that his testimony about the chest bump was inconsistent with the coworker’s testimony. PFR File, Tab 3 at 8. The supervisor testified in relevant part that, after the coworker started walking towards the time clock, the appellant “made contact with shoulder and chest area right here to forcibly turn him back around 180 degrees to be face-to-face.” HT at 8 (testimony of the supervisor). Although the supervisor’s account is somewhat different in its description of this event, we do not find it to be inconsistent. The appellant also argues that his supervisor contradicted himself by testifying in one place that the appellant got closer to his coworker, and in another place that both men got closer to each other. PFR File, Tab 3 at 3-4. However, we have reviewed the portion of the transcript that the appellant cites, and we do not conclude that the supervisor contradicted himself. HT at 55 (testimony of the supervisor). Although the phrase “they got even closer” could be interpreted to mean that both men approached each other, it could also be interpreted to mean that one man approached the other. The appellant points to another alleged contradiction, when his supervisor testified that he gave the appellant the option of either going home or staying at work calmly, but then decided to place the appellant on emergency leave. PFR File, Tab 3 at 5. We see no contradiction in the testimony. As the supervisor explained it, he initially informed the appellant that he could continue on his shift, but shortly thereafter he decided that the appellant needed to go home. HT at 49-50 (testimony of the supervisor). The supervisor may have changed his mind, but he did not contradict himself. 7 The appellant also argues that the supervisor contradicted himself on the matter of whether he felt threatened by the appellant. PFR File, Tab 3 at 9. The supervisor testified that he did not feel threatened or intimidated by the appellant until December 13, 2019, the day after the altercation, when the appellant wanted to return to work and discuss the situation. HT at 60 (testimony of the supervisor). In light of this, the appellant argues that the supervisor lied to the Postal Inspectors when he told them that he feared or felt intimidated by him. PFR File, Tab 3 at 9, HT at 61 (testimony of the supervisor). We disagree. Although the record shows that the Postal Inspectors conducted initial interviews, including an interview with the appellant’s supervisor, on December 12, 2019, IAF, Tab 38 at 12, the record does not establish that the supervisor told them that he was fearful or intimidated on that date rather than some time later, after the appellant requested to return to work. We do not have a sufficient basis to find a contradiction in the supervisor’s actions or testimony, much less one of sufficient concern for us to disturb the administrative judge’s demeanor-based credibility determination. The appellant also argues that the administrative judge either failed to consider or misinterpreted several facts related to the December 12, 2019 altercation. First, he disputes the administrative judge’s finding that he arrived at work earlier than normal on the day in question. PFR File, Tab 3 at 4, 9; ID at 6. However, not only has the appellant failed to provide any contrary evidence, in response to a notice of proposed adverse action, he stated himself that he “came into the office a little earlier than usual” that day to confront his coworker. IAF, Tab 33 at 7. The appellant also disputes the significance of him calling his coworker by his formal name rather than his nickname when he confronted him, pointing out that the administrative judge called the coworker by his formal name. PFR File, Tab 4 at 4; ID at 6. We are not persuaded by this argument because, unlike the appellant, the administrative judge is not a colleague and acquaintance of the coworker who customarily calls him by his nickname. The8 appellant also disputes the significance of his locking eyes with his coworker, arguing that he was standing at the military position of attention in order to get his supervisor’s attention. ID at 7-8. We do not accept the appellant’s explanation that he was standing at attention to help diffuse the situation or the inference that standing at attention involves staring down a coworker. The appellant further argues that the evidence shows that his coworker was at least as much at fault as he was for the altercation, and that his coworker should have been placed on emergency leave as well. Again, he argues that his supervisor’s testimony shows that he and his coworker moved closer to each other during the confrontation. PFR File, Tab 3 at 2-3. As explained above, however, the supervisor’s testimony does not support this conclusion. The appellant also argues that an employee statement gathered at the time of the incident reveals that both the appellant and the coworker were exchanging insults. PFR File, Tab 3 at 4-5; IAF, Tab 18 at 20. If we were to credit the uncorroborated information in this unsworn written statement, it would tend to show that the coworker was not entirely passive during this confrontation, but it would do little to undermine the consensus of the percipient witnesses that the appellant was, in fact, the aggressor. IAF, Tab 18 at 18-20; HT at 64 (testimony of the supervisor), 80-81 (testimony of a coworker witness), 94 (testimony of the coworker). The appellant further argues that the administrative judge overlooked the testimony of one witness who testified that the coworker was practically daring the appellant to hit him and only backed away when he saw other employees coming to intervene. PFR File, Tab 3 at 3; HT at 79, 81 (testimony of the coworker witness). However, the witness testified that the coworker told the appellant to “[g]o ahead and do it, then, because you know you won’t,” only after the appellant physically barred the coworker from leaving the confrontation. HT at 48-49 (testimony of the supervisor), 93-94 (testimony of the coworker). For this reason, we are not persuaded by the appellant’s argument that both he and his coworker engaged in unprofessional behavior and deserved similar treatment9 under the zero tolerance policy. PFR File, Tab 3 at 6 -8. Although the coworker could perhaps have handled the situation better, it appears that the appellant allowed him little alternative but to engage in the conflict. The appellant further argues that the administrative judge failed to consider that the municipal court dismissed the “erroneous injunctions” against workplace harassment filed by his supervisor and coworker. PFR File, Tab 3 at 7. The record shows that, on December 16, 2019, the appellant’s coworker petitioned for an injunctive order against the appellant, and that the court dismissed the petition 7 days later. IAF, Tab 38 at 10-11, 15; HT at 69 (testimony of the supervisor). However, the record does not reveal the basis for the dismissal, and so we are unable to draw any conclusions from this dismissal about the credibility of the appellant’s coworker or the veracity of his claims. Furthermore, contrary to the appellant’s assertion on review, the supervisor testified that the municipal court granted his petition for an injunction. HT at 68-69 (testimony of the supervisor). The appellant has not identified any evidence to contradict his supervisor’s testimony. The appellant appears to argue that the agency committed an unfair labor practice (ULP). PFR File, Tab 3 at 4-6. However, even if this is true, the Board lacks jurisdiction to decide ULP claims, Clarry v. Department of Transportation , 18 M.S.P.R. 147, 153 (1983) aff’d, 795 F.2d 1016 (Fed. Cir. 1986) (Table), and the appellant has not explained how this ULP relates to his claim of uniformed service discrimination. The appellant further argues that the agency’s actions violated the due process provision of the applicable collective bargaining agreement, that his emergency placement prevented him from speaking to the Postal Inspectors when they arrived shortly after he was sent home, and that the supervisor put him on emergency placement at the behest of higher management. PFR File, Tab 1 at 6 -7. However, the appellant likewise has not explained the relevancy of these matters to his claim of uniformed service discrimination. We further note that there is no evidence to contradict the supervisor’s testimony that10 putting the appellant on emergency placement was his own idea, HT at 50 (testimony of the supervisor), and in any event, the appellant has not advanced any theory of antimilitary animus with respect to this unidentified higher management official. Finally, the appellant argues that U.S. Marines are perceived as violent and dangerous and that the supervisor’s expression of fear is proof of antimilitary animus. PFR File, Tab 3 at 6, 8. However, we decline to accept the appellant’s unsupported assertion that Marines are perceived as violent and dangerous, and we further decline to impute the supervisor’s expression of fear to the appellant’s military service rather than to his physically aggressive and hostile actions in the workplace. For the reasons explained in the initial decision, we affirm the administrative judge’s conclusion that the appellant failed to show that his uniformed service was a substantial or motivating factor in his supervisor’s decision to place him on paid emergency leave. NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 12 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 13 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Alford_WadeDE-4324-20-0132-I-1__Final_Order.pdf	2024-04-16	WADE ALFORD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-4324-20-0132-I-1, April 16, 2024	DE-4324-20-0132-I-1	NP
1,777	https://www.mspb.gov/decisions/nonprecedential/Lawrence_PatriciaNY-3443-21-0009-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PATRICIA LAWRENCE, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER NY-3443-21-0009-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Patricia Lawrence , Brooklyn, New York, pro se. 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 dismissed her appeal from a denial of “separation retirement” for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND The appellant, who identified herself below as a current employee, is or was employed by the agency as a Mail Carrier. Initial Appeal File (IAF), Tab 1 at 1, 4. She filed a Board appeal challenging the denial of her “request for separation retirement” under the Federal Employees’ Retirement System (FERS). Id. at 4. The administrative judge informed the appellant that the Board may not have jurisdiction over her appeal and ordered her to submit evidence and argument to establish why the appeal should not be dismissed for lack of jurisdiction. IAF, Tabs 3, 5. The appellant did not respond. In an initial decision, the administrative judge dismissed the appeal without holding the requested hearing, finding that the appellant failed to make a nonfrivolous allegation of Board jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1, 3. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has not filed a response to the appellant’s petition for review.2 DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant clarifies for the first time that she is disputing the denial of her disability retirement application by the Office of Personnel Management (OPM). PFR File, Tab 1 at 1. Generally, the Board will not consider arguments raised for the first time in a petition for review absent a showing that they are based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, when, as here, the administrative judge did not provide the appellant with sufficient notice of what she must do to meet her jurisdictional burden of proof, the Board has considered such newly raised arguments on the basis that they were previously unavailable. Newman v. U.S. Postal Service , 79 M.S.P.R. 64, 66-67 (1998). The administrative judge correctly determined that the appellant failed to establish jurisdiction over her appeal. 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 appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641 (Fed. Cir. 1985); Butler v. Office of Personnel Management , 46 M.S.P.R. 288, 290, 293-94 (1990) (remanding an appeal of an OPM reconsideration decision for a new jurisdictional determination because the administrative judge’s order on jurisdiction did not provide the appellant with information reasonably calculated to apprise him of his burden of proving Board jurisdiction). The jurisdictional orders issued by the administrative judge generally advised the appellant of her burden of establishing the Board’s jurisdiction, including the threshold requirement for receiving a hearing on jurisdiction. IAF, Tabs 3, 5. However, the orders did not explicitly inform the appellant of what is required to establish jurisdiction over a separation from postal employment. See, e.g., Campbell v. U.S. Postal Service , 88 M.S.P.R.3 546, ¶¶ 2, 4, 7-10 (explaining how a postal employee can establish Board jurisdiction over her separation under chapter 75). Nonetheless, considering the confusing nature of the appellant’s allegations below and the clarification of those allegations on review, a more specific order on how to establish Board jurisdiction over what appeared to be an appeal of a chapter 75 adverse action would not have provided her with the requisite information regarding proof of jurisdiction over what appears on review to be an appeal of a decision by OPM regarding her entitlement to a disability retirement annuity. Thus, even though the show-cause orders here were general, the appellant’s rights were not prejudiced. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding the administrative judge’s procedural error is of no legal consequence unless it is shown that it has adversely affected a party’s substantive rights). The appellant may wish to file a new appeal regarding the denial of her application for a disability retirement annuity. To the extent the appellant wishes to appeal a determination by OPM on the denial of a disability retirement annuity, she may wish to file a new appeal. The appellant has the burden of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). She is entitled to a jurisdictional hearing only when she makes a nonfrivolous allegation that the Board has jurisdiction over her appeal. Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1332 (Fed. Cir. 2006); see Butler, 46 M.S.P.R. at 293-94 (explaining that an appellant is entitled to a jurisdictional hearing in an appeal from a determination concerning retirement benefits by OPM if he alleges facts sufficient to support a prima facie case of Board jurisdiction). Under 5 U.S.C. § 8461(e), the Board has jurisdiction to review “[a]n administrative action or order affecting the rights or interests of an individual” under FERS. The Board generally lacks jurisdiction to hear an appeal of a retirement matter when OPM has not issued a reconsideration decision on the matter. DeGrant v. Office of Personnel Management , 107 M.S.P.R. 414, ¶ 9 (2007). The Board has recognized4 three situations in which OPM is deemed to have issued such a decision. Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014). Two of those situations are prescribed by OPM’s regulations: OPM may either (1) issue a reconsideration decision under 5 C.F.R. § 841.306(e) or (2) issue an initial decision without reconsideration rights under 5 C.F.R. § 841.307. Okello, 120 M.S.P.R. 498, ¶ 14. Either type of decision is final and appealable to the Board under 5 C.F.R. § 841.308. Okello, 120 M.S.P.R. 498, ¶ 14. The third situation, which derives from Board case law, is that the Board will take jurisdiction over an appeal concerning a retirement matter in which OPM has refused or improperly failed to issue a final decision. Id. Here, the record is unclear as to whether OPM has issued a reconsideration decision regarding the appellant’s application for a disability retirement annuity. She alleges that “[she is] appealing an OPM decision which denial [sic] [her] application [sic] for disability retirement.” PFR File, Tab 1 at 1. However, she does not claim that she requested or received a reconsideration decision from OPM and such a decision is not included in the record. Nor has she alleged that OPM has refused or improperly failed to issue a reconsideration decision, or that it issued an initial decision without appeal rights. In the absence of additional information that might clarify the nature of the appellant’s claim, and in light of the fact that it was raised for the first time on review, we decline to adjudicate it here. To the extent she still wishes to appeal OPM’s alleged denial of her disability retirement application, she may file a new appeal to the Board naming OPM as the responding agency and providing evidence and argument that she has received, or effectively received, a reconsideration decision from OPM. Accordingly, we affirm the initial decision, dismissing the appeal for lack of jurisdiction.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 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.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.10	Lawrence_PatriciaNY-3443-21-0009-I-1__Final_Order.pdf	2024-04-15	PATRICIA LAWRENCE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-3443-21-0009-I-1, April 15, 2024	NY-3443-21-0009-I-1	NP
1,778	https://www.mspb.gov/decisions/nonprecedential/Boyd_Kenderick_L_CH-3443-18-0279-I-1_Final_Lack_of_Quorum_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENDERICK L. BOYD, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-3443-18-0279-I-1 DATE: April 15, 2024 Kenderick L. Boyd , Fort Wayne, Indiana, pro se. Maryl Rosen , St. Louis, Missouri, for the agency. BEFORE Raymond A. Limon, Vice Chairman ORDER The appellant has filed a petition for review of the initial decision, which dismissed the appeal for lack of jurisdiction. Chairman Harris has recused herself from consideration of this case. Because there is no quorum to alter the administrative judge’s initial decision, the initial decision now becomes the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(d). NOTICE OF APPEAL RIGHTS1 You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of the final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this order. 5 U.S.C. § 7703(b) (1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 1 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of the final decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this order. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this order before you do, then you must file with the district court no later than 30 calendar days after your representative receives this order. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of3 any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this order. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this order before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this order. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s4 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.2 The court of appeals must receive your petition for review within 60 days of the date of issuance of this order. 5 U.S.C. § 7703(b)(1) (B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 2 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Boyd_Kenderick_L_CH-3443-18-0279-I-1_Final_Lack_of_Quorum_Order.pdf	2024-04-15	KENDERICK L. BOYD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-18-0279-I-1, April 15, 2024	CH-3443-18-0279-I-1	NP
1,779	https://www.mspb.gov/decisions/nonprecedential/Medina_DavidCH-0831-19-0125-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID MEDINA, JR., Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0831-19-0125-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 John C. Kreamer , Esquire, Naperville, Illinois, for the appellant. Shaquita Stockes and Heather Dowie , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction because the Office of Personnel Management (OPM) rescinded its reconsideration decision in this matter. On petition for review, the appellant argues the merits of OPM’s decisions denying his application for continued Federal Employee Health Benefits insurance 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). coverage and dependent child survivor annuity benefits, but he does not address the jurisdictional issue. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 When, as here, OPM completely rescinds a reconsideration decision, the Board no longer has jurisdiction over the appeal in which that reconsideration decision is at issue, and the appeal must be dismissed. See, e.g., Richardson v. Office of Personnel Management, 101 M.S.P.R. 128, ¶ 3 (2006). OPM has indicated that it will “remand the case file to the appropriate office” for additional development and review. Initial Appeal File (IAF), Tab 8 at 4. As the administrative judge noted in the initial decision, OPM must now act “diligently and expeditiously, within a reasonable period of time, to forward the case file to the appropriate office as indicated.” IAF, Tab 9, Initial Decision at 2. Further, we note that the appellant may file an appeal of OPM’s new reconsideration decision, once it is issued, if he is dissatisfied with it. See 5 C.F.R. § 831.110. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b) (1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Medina_DavidCH-0831-19-0125-I-1__Final_Order.pdf	2024-04-15	null	CH-0831-19-0125-I-1	NP
1,780	https://www.mspb.gov/decisions/nonprecedential/Class_ElizabethAT-0841-19-0355-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ELIZABETH CLASS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0841-19-0355-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Elizabeth Class , Orlando, Florida, pro se. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision issued by the Office of Personnel Management (OPM) denying her request to revoke her survivor annuity election as untimely. On petition for review, the appellant reiterates her argument that OPM did not give her correct information concerning the deadline for revoking a survivor annuity election and argues for the first time on review that health issues 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). kept her from timely canceling her survivor annuity election.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 1 The appellant argued before OPM that she needed the funds withheld to provide for her spouse’s survivor annuity to pay medical bills. Initial Appeal File, Tab 6 at 7, 9. By contrast, she argues for the first time in her petition for review that her medical condition prevented her from requesting cancellation of her spouse’s survivor annuity benefits in a timely manner. Petition for Review File, Tab 1 at 4. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). The appellant makes no such showing, so we have not considered her argument on review. Nevertheless, even if she could establish the truth of her assertion, her alleged difficulty making a timely filing due to her medical condition would not satisfy any of the three bases for waiving a statutory or regulatory filing deadline. See Perez Peraza v. Office of Personnel Management , 114 M.S.P.R. 457, ¶ 7 (2010) (observing that the Board has identified three bases for waiving a statutory or regulatory filing deadline: (1) the statute or regulation may provide for a waiver under specified circumstances; (2) an agency’s affirmative misconduct may preclude enforcement of the deadline under the doctrine of equitable estoppel; and (3) an agency’s failure to provide a notice of rights and the applicable filing deadline, where such notice is required by statute or regulation, may warrant a waiver of the deadline). Specifically, there is no statutory or regulatory provision for waiver of the deadline to revoke a survivor annuity election and there is also no requirement that OPM notify annuitants of the deadline to revoke a survivor annuity election. Finally, there is no basis to find that OPM should be equitably estopped from denying the appellant’s revocation request. Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000)); see Perez Peraza , 114 M.S.P.R. 457, ¶ 9 (observing that, an appellant must establish both affirmative misconduct by the agency and their reasonable reliance on that misconduct to prove a claim of equitable estoppel).2 the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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	Class_ElizabethAT-0841-19-0355-I-1__Final_Order.pdf	2024-04-15	ELIZABETH CLASS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0841-19-0355-I-1, April 15, 2024	AT-0841-19-0355-I-1	NP
1,781	https://www.mspb.gov/decisions/nonprecedential/Moseley_DartagonAT-1221-18-0722-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DARTAGON MOSELEY, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-18-0722-W-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dartagon Moseley , Hoover, Alabama, pro se. Edith W. Lewis , Columbia, South Carolina, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action appeal for lack of jurisdiction. On petition for review, the appellant argues that he nonfrivolously alleged that the agency retaliated against him for his protected activity by significantly changing his duties, responsibilities, and working conditions, failing to accommodate his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). disability, and failing to promote him. Generally, we grant petitions such as 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	Moseley_DartagonAT-1221-18-0722-W-1__Final_Order.pdf	2024-04-15	DARTAGON MOSELEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0722-W-1, April 15, 2024	AT-1221-18-0722-W-1	NP
1,782	https://www.mspb.gov/decisions/nonprecedential/Doyle_Jocelyn_L_PH-1221-18-0012-X-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOCELYN LISA DOYLE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-1221-18-0012-X-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jocelyn Lisa Doyle , Boonsboro, Maryland, pro se. Timothy O’Boyle , Hampton, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER In a May 31, 2022 compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board’s final decision in the underlying appeal to the extent the agency failed to prove that it removed all references to the retaliatory reassignments from the appellant’s Official Personnel 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). File (OPF). Doyle v. Department of Veterans Affairs , MSPB Docket No. PH-1221-18-0012-C-1, Compliance File (CF), Tab 6, Compliance Initial Decision (CID). 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 December 14, 2021, the administrative judge issued a remand initial decision in the appellant’s individual right of action appeal finding that the agency retaliated against her for protected whistleblowing when it (1) convened an Administrative Investigation Board (AIB) to investigate the appellant’s conduct; (2) temporarily reassigned her during the AIB from her GS-6 Dental Assistant position to the mailroom (Logistics Service) effective February 7, 2017, and to the library (Employee Learning Resources Service) effective April 4, 2017; and (3) permanently reassigned her to the Advanced Medical Support Assistant position effective September 3, 2017. Doyle v. Department of Veterans Affairs, MSPB Docket No. PH-1221-18-0012-M-1, Remand File, Tab 18, Remand Initial Decision (RID). Accordingly, he granted in part her request for corrective action and ordered the agency to cancel the reassignments, expunge any documentation regarding the reassignments and AIB from the appellant’s OPF and other agency records systems, and pay the appellant any monies or other awards owed as a result of the retaliatory actions. RID at 6. The remand initial decision became the final decision of the Board on January 18, 2022, after neither party filed an administrative petition for review. RID at 8. On March 19, 2022, the appellant filed a petition for enforcement of the December 14, 2021 remand initial decision, requesting a “clean record” and a change to her performance appraisal. CF, Tab 1. In the May 31, 2022 compliance initial decision, the administrative judge found that the appellant’s request to expunge records from her OPF that were unrelated to the retaliatory reassignments and to change to her performance evaluation were outside the2 scope of this compliance matter. CID at 6. However, he found the agency in partial noncompliance to the extent it had not shown that all references to the retaliatory reassignments had been removed from the appellant’s OPF, including references contained in the “Additional Comments/Information” section of her fiscal year (FY) 2017 performance appraisal. CID at 6-7. Thus, the administrative judge granted the appellant’s petition for enforcement in part and ordered the agency to (1) submit evidence showing that it had removed all references to the retaliatory reassignments from the appellant’s OPF and/or other personnel files; and (2) submit evidence showing that it had placed an FY 2017 performance appraisal in the appellant’s OPF, or other applicable personnel file, that did not include any reference to the reassignments or any attachments that reference the reassignments.2 CID at 8. On June 27, 2022, the agency submitted its first statement of compliance to the Board. Doyle v. Department of Veterans Affairs , MSPB Docket No. PH -1221- 18-0012-X-1, Compliance Referral File (CRF), Tab 1. As evidence of compliance, the agency provided a declaration signed under penalty of perjury from a Supervisory Human Resources Specialist (HR Specialist) attesting that she had reviewed the appellant’s electronic OPF (eOPF) and confirmed that it did not contain any Standard Form 50 (SF-50) reflecting the appellant’s temporary reassignment to Logistics Service or to any other reassignment made during the AIB. Id. at 7-8. She also attested that the appellant’s eOPF did not contain the 2 In the compliance initial decision, the administrative judge informed the agency that, if it decided to take the actions required by the decision, it must submit to the 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 8-9; see 5 C.F.R. § 1201.183(a)(6)(i). He also informed the parties of their option to request Board review of the compliance initial decision by filing a petition for review by August 28, 2017, the date on which the findings of noncompliance would become final unless a petition for review was filed. Id.; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party filed an administrative petition for review of the compliance initial decision.3 FY 2017 performance appraisal because performance appraisals were only maintained for 4 years under the agency’s document retention policy. Id. In response, the appellant argued that the agency had not adequately shown that all references to investigations and all performance reviews or letters written by two specified individuals had been removed from her personnel files and questioned whether the Office of Personnel Management (OPM) might have copies of these documents. CRF, Tab 3 at 4-5. The appellant also argued that she was “still concerned” about her performance ratings for 2017 and 2018 and that she wanted them to be restored to “excellent.” Id. at 4. In a supplemental compliance submission, the agency provided a second declaration under penalty of perjury from the HR Specialist in which she attested that she had removed from the appellant’s eOPF the SF-50 dated September 3, 2017, documenting her reassignment to the Advanced Medical Support Assistant position. CRF, Tab 4. The HR Specialist attached to the declaration screenshots showing the contents of the eOPF before and after removal of the reassignment SF-50. Id. at 8. The HR Specialist also attested and provided evidence showing that she corrected the appellant’s FY 2017 performance appraisal so that it did not contain any reference to the Advanced Medical Support Assistant reassignment or any other reassignment that occurred during that rating period. Id. at 7, 10-14. Finally, she stated that she did not upload the corrected FY 2017 performance appraisal to the appellant’s eOPF because, pursuant to the agency’s document retention policy, such documents are only maintained for 4 years. Id. at 7. In response to the agency’s supplemental compliance submission, the appellant argued, in relevant part, that the agency had not adequately shown that it had removed all references to the retaliatory reassignments from her personnel file and from any records maintained by OPM. CRF, Tab 5 at 4-9. She also argued that the agency needed to delete the September 3, 2018 SF-50 documenting her removal from her OPF, provide her copies of all the SF-50s in4 her OPF from 2015 through 2018, and correct her performance rating. Id. at 7-10. The agency replied to the appellant’s response, arguing that her challenges to her removal and performance rating were outside the scope of this compliance matter. CRF, Tab 6. In addition, the agency submitted a second supplemental compliance submission reflecting that it had removed two more references to the Advanced Medical Support Assistant position from the appellant’s eOPF. CRF, Tab 7. Specifically, the agency provided a third sworn declaration from the HR Specialist stating that she removed from the appellant’s eOPF a January 5, 2018 SF-50 documenting a general pay adjustment while she held the Advanced Medical Support Assistant position and replaced it with an SF-50 showing that the pay adjustment occurred while the appellant occupied the Dental Assistant position. Id. at 6-7. She also stated that she removed from the appellant’s eOPF the September 20, 2018 SF-50 documenting her removal while in the position of Advanced Medical Support Assistant and replaced it with one showing that she occupied the Dental Assistant position at the time of her removal. Id. at 7. The agency provided copies of the original and replacement SF -50s. Id. at 8-11. The HR Specialist confirmed that there were no further references to the Advanced Medical Support Assistant reassignment in the appellant’s eOPF. Id. at 7. Lastly, regarding the appellant’s allegations that OPM may have copies of documents referencing her reassignments, the agency submitted a fourth sworn declaration from the HR Specialist attesting that the agency has maintained custody of the appellant’s OPF since her 2018 removal due to the pending employment-related appeals. CRF, Tab 8 at 4-5. The appellant has not responded to the agency’s three most recent submissions. 5 ANALYSIS When the Board finds a personnel action unwarranted, the aim is to place the appellant, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board’s order by a preponderance of the evidence.3 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of compliance by making specific, nonconclusory, and supported assertions of continued noncompliance. Id. As described above, in the compliance initial decision, the administrative judge found that the agency was not in compliance with the Board’s final order to the extent it failed to show that it removed all references to the three retaliatory reassignments from the appellant’s OPF and other personnel files, including her 2017 performance appraisal. CID at 8. The agency has now submitted evidence showing that it has removed the SF-50 documenting the appellant’s reassignment to the Advanced Medical Support Assistant position and has replaced all SF-50s postdating that reassignment to reflect she held the Dental Assistant position at the time of the agency action. CRF, Tabs 4, 7. In addition, the agency has provided evidence showing that it corrected the appellant’s FY 2017 performance appraisal to remove all references to the Advanced Medical Support Assistant position, although it has not placed it in the appellant’s OPF pursuant to the agency’s 4-year document retention policy. CRF, Tab 4. Finally, the HR Specialist attested in statements under penalty of perjury that there are no 3 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).6 references to the temporary reassignments made during the AIB in the appellant’s personnel files. CRF, Tab 1. The appellant has not rebutted this evidence with any specific, nonconclusory, and supported allegations of continued noncompliance. CRF, Tabs 3, 5. Accordingly, we find that the agency has established that it is in compliance with its outstanding obligation to remove all references to the three reassignments found to be retaliatory from the appellant’s OPF and other personnel files. As noted above, the appellant has expressed concern that OPM may be in possession of documents referencing, as relevant to this compliance matter, the three reassignments and has argued that the agency must prove otherwise. CRF, Tabs 3, 5. Under the circumstances here, we assume without deciding that the agency’s obligation to remove references to the reassignments from the appellant’s OPF and/or other personnel records includes the obligation to remove those documents from records maintained by OPM. See King v. Department of the Navy, 130 F.3d 1031 (Fed. Cir. 1997) (interpreting a settlement agreement containing the phrase “remove all reference to the removal action from her Official Personnel File” as requiring the Navy to purge documents referencing the removal from any official Government personnel files that might be available to a future employer, including those held in personnel files by OPM and the Defense Finance and Accounting Service). However, the appellant has not made any specific, nonconclusory, or supported allegations that OPM actually has any documents referencing the reassignments, nor even explained the basis of her belief that OPM may have them.4 CRF, Tabs 3, 5. Accordingly, the appellant’s 4 We acknowledge that, by regulation, the employing agency maintains custody of an employee’s OPF or eOPF during her tenure and until it is “transferred to and accepted by the [National Personnel Records Center (NPRC)],” at which time OPM becomes the custodian of the OPF or eOPF. 5 C.F.R. § 293.303(c)-(d)(1). Although the appellant separated from the agency in 2018, the HR Specialist attested that the agency has maintained custody of the appellant’s OPF since her removal due to the appellant’s employment-related appeals. CRF, Tab 8. In addition, the agency’s recent amendments to the documents in the appellant’s eOPF demonstrate that the agency, not OPM, has custody of the appellant’s eOPF. Once the appellant’s eOPF is transferred to NPRC,7 conjecture that OPM may be in possession of such documents is insufficient to rebut the agency’s evidence of compliance. Vaughan, 116 M.S.P.R. 319, ¶ 5. In addition, as the appellant did not respond to the agency’s three most recent compliance submissions, we assume that she is satisfied. See Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009). Should the appellant discover in the future that OPM indeed has documents referencing her reassignments, she may file another petition for enforcement at that time. We have considered the appellant’s other challenges to the agency’s compliance, including that she is entitled to an “excellent” performance rating, but find that they are outside the scope of this compliance appeal. In light of the foregoing, we find the agency in compliance with its outstanding compliance obligation and dismiss the appellant’s 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 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 she may request a copy of it. See National Archives and Records Administration, Official Personnel Folders, Federal (non-archival) Holdings and Access, https://www.archives.gov/personnel-records-center/civilian-non-archival (last accessed Apr. 15, 2024). 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Doyle_Jocelyn_L_PH-1221-18-0012-X-1__Final_Order.pdf	2024-04-15	JOCELYN LISA DOYLE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-18-0012-X-1, April 15, 2024	PH-1221-18-0012-X-1	NP
1,783	https://www.mspb.gov/decisions/nonprecedential/Poole_Dallas_C_DC-0752-18-0514-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DALLAS C. POOLE, SR., Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DC-0752-18-0514-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dallas C. Poole, Sr. , Havelock, North Carolina, pro se. Denise Gillis , Esquire, and Evan Gordon , Quantico, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s 20-day suspension action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify and supplement the administrative judge’s analysis of the charge of failure to follow gift acceptance rules , we AFFIRM the initial decision. On petition for review, the appellant challenges the administrative judge’s findings regarding the agency’s charges of misconduct, the existence of nexus, and the reasonableness of the imposed penalty. Petition for Review (PFR) File, Tab 3. Further, he argues that the agency and the administrative judge erroneously mixed up his case with that of the Command Advisor and that the former Command Judge Advocate (CJA) Captain (Capt.) S.A. should not have been allowed to testify as a witness. Id. at 6, 11. After considering the appellant’s arguments on the merits of the appeal, we find that they fail to provide a reason to disturb the initial decision. Initial Appeal File (IAF), Tab 24, Initial Decision (ID) at 3-32. Specifically, we find that the appellant has not provided a sufficiently sound reason to overturn the administrative judge’s demeanor-based credibility determinations because they are consistent with the record. ID at 11-12; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing) .2 We modify the initial decision, however, to clarify and supplement the administrative judge’s analysis of the charge of failure to follow gift acceptance rules, as follows. The administrative judge found that the agency proved the overall charge without specifying which specifications she was sustaining. ID at 13. Based on her analysis and factual findings, we interpret the initial decision as implicitly finding that the agency proved specifications 1-2. ID at 4-13. Further, the administrative judge did not address whether the appellant violated gift acceptance rules by instructing donors to make checks out to a Marine Corps Community Services (MCCS) account, as alleged in part of specification 1. IAF, Tab 6, Subtab 4d at 1. SECNAV Instruction 4001.2J provides that donors should make checks payable to the “Department of the Navy.” IAF, Tab 5 at 22. This directive was communicated in a January 23, 2015 ethics training by the former CJA Major (Maj.) M.E. IAF, Tab 6, Subtab 4e, Enclosure (Encl.) 16 at 1, 17. In a December 13, 2016 signed statement, the appellant asserted that “supporters desiring to send donations to the battalion are instructed to make donations to [MCCS]” and that “[a]ll other donations that are not properly written to MCCS will be returned to donor.” Id., Encl. 45 at 1. Therefore, we find that the agency proved by preponderant evidence that the appellant instructed donors to make checks out to “MCCS.” Because we agree with the administrative judge’s finding that the agency proved the remaining allegations of specification 1, we find that she properly sustained specification 1. ID at 13; IAF, Tab 6, Subtab 4d at 1. Further, we find that the appellant’s allegations of errors involving the Command Advisor and his objection to Capt. S.A. as a witness do not provide a basis for review. Specifically, the appellant asserts the following errors: the agency uploaded the Agency File for the Command Advisor’s appeal in his appeal; the deciding official stated in his Douglas factors2 worksheet that specification 2 of charge 1 is proved because the Command Advisor facilitated 2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board articulated a nonexhaustive list of twelve factors that are relevant in assessing the appropriateness of an agency-imposed penalty for an employee’s misconduct.3 the acceptance of checks over $1,500; the initial decision described part of his position title as “Command Advisor”; and the initial decision discussed Maj. M.E.’s reference to the Command Advisor in a written statement. PFR File, Tab 3 at 6; ID at 1-2, 8; IAF, Tab 6, Subtab 4e, Encl. 59 at 1-2, Tab 7, Tab 13 at 9, Tab 14 at 16. The appellant does not allege, and the record does not indicate, that these alleged errors have harmed his substantive rights or affected the outcome of the case. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). In particular, the record shows that the agency filed a corrected Agency File 1 month after he filed the initial appeal. IAF, Tabs 1, 5-6. Moreover, we find that the administrative judge did not abuse her discretion in approving Capt. S.A. as a witness whose testimony would be relevant, material, and nonrepetitious. IAF, Tab 20 at 3; see Fritz v. Department of Health and Human Services , 87 M.S.P.R. 287, ¶ 15 (2000) (observing that administrative judges have broad discretion in regulating the proceedings before them); see also 5 C.F.R. § 1201.41(b)(8), (10) . Accordingly, we affirm the 20-day suspension action. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule 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 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file6 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Poole_Dallas_C_DC-0752-18-0514-I-1__Final_Order.pdf	2024-04-15	null	DC-0752-18-0514-I-1	NP
1,784	https://www.mspb.gov/decisions/nonprecedential/Johnson_EugenePH-0752-19-0206-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD EUGENE JOHNSON, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER PH-0752-19-0206-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Clark D. Browne , Clinton, Maryland, for the appellant. Andrew D. Linenberg , Esquire, and Brian J. Sheppard , Esquire, Washington, D.C., for the agency. Darian Pinkston-Clark and Roburt C. Yale , Washington Navy Yard, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his reduction in grade. On petition for review, the appellant argues that the agency failed to prove the failure to follow reporting instructions charge 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). one of the specifications of the unacceptable performance charge. Petition for Review (PFR) File, Tab 1 at 3. He also reasserts that the agency improperly failed to place him on a performance improvement plan, failed to send him to “Supervisory School,” and reduced his grade in reprisal for his prior equal employment opportunity (EEO) activity. Id. 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 provide the appropriate standard for EEO reprisal claims, we AFFIRM the initial decision. The administrative judge correctly sustained the failure to follow reporting instructions charge. Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 3-4. In sustaining the unacceptable performance charge, she sustained 13 of the 16 specifications. ID at 4-12. Although we agree with her decision to sustain 11 of those 13 specifications, it is not clear to us that the record supports her decision to sustain specifications P and R, which concern the appellant’s failure to respond to emails from his supervisor regarding his subordinates’ failure to attend training and to refuel vehicles. ID at 11-12; IAF, Tab 10 at 11. In the initial decision, the administrative judge considered the emails to which the agency claims the appellant failed to respond, the proposal notice, and the2 appellant’s failure to dispute these specifications. ID at 11-12; IAF, Tab 12 at 30, 32. However, because the specifications allege that the appellant failed to respond to the emails, the emails themselves cannot prove that the appellant failed to respond. IAF, Tab 12 at 30, 32. Regardless, proof of one or more, but not all, of the supporting specifications is sufficient to sustain a charge. Alvarado v. Department of the Air Force , 103 M.S.P.R. 1, ¶ 16 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012). Accordingly, because the administrative judge appropriately sustained 11 other specifications, we agree with her decision to sustain the unacceptable performance charge. In concluding that the appellant failed to establish his claim of reprisal due to his filing an EEO complaint based on his race and age, the administrative judge found that “there was nothing to support finding a genuine nexus between the alleged retaliation and the demotion action.” ID at 17. On review, the appellant reasserts this claim. PFR File, Tab 1 at 2. Although we agree with the administrative judge’s ultimate conclusion that the appellant failed to establish this affirmative defense, we clarify here the proper standard for EEO reprisal claims based on race and age. An appellant may prove an affirmative defense of retaliation for Title VII activity by showing that his protected activity was at least a motivating factor, i.e., played any part in the agency’s action. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22. The appellant may meet this burden by submitting any combination of direct or indirect evidence, including evidence of pretext, comparator evidence, and evidence of suspicious timing or other actions or statements that, taken alone or together, could raise an inference of retaliation. Id., ¶ 22. Here, it does not appear that the EEO complaint is included in the record, and therefore, it is not clear when the appellant filed it. Regarding the deciding official, the appellant has neither alleged nor proven that he was aware of the appellant’s EEO complaint. IAF, Tab 9 at 3, Tab 16 at 1; PFR File, Tab 1 at 2.3 Further, although the proposing official stated in an affidavit that he was aware of the EEO complaint, he nonetheless did not state when he became aware of it.2 IAF, Tab 16 at 30. Additionally, the appellant’s supervisor, who could have had influence over the proposal action given that many of the specifications of the unacceptable performance charge concerned the appellant’s performance of duties under his supervision, stated that he was not aware of the EEO complaint until after the agency proposed the appellant’s reduction in grade. Id. at 15. Thus, we find that the appellant has failed to prove that any agency official responsible for his grade reduction had knowledge of the EEO complaint at issue. Accordingly, we find that the appellant failed to establish that his EEO complaint was a motivating factor in his reduction in grade, and we modify the initial decision in that regard. Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33. 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 2 The date of the proposing official’s declaration is January 28, 2019. IAF, Tab 16 at 31. Thus, we cannot conclude that, just because he stated that he was aware of the EEO complete on that date, he also was aware of the EEO complaint prior to the issuance of the proposed agency action on September 17, 2018. IAF, Tab 10 at 7. 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 provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at5 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,6 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,7 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	Johnson_EugenePH-0752-19-0206-I-1__Final_Order.pdf	2024-04-15	EUGENE JOHNSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0206-I-1, April 15, 2024	PH-0752-19-0206-I-1	NP
1,785	https://www.mspb.gov/decisions/nonprecedential/Abresch_Richard_J_DC-1221-21-0639-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICHARD JAMES ABRESCH, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DC-1221-21-0639-W-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard James Abresch , FPO, APO/FPO Europe, pro se. Michael Steven Causey , Washington, D.C., for the agency. Tracy W. Lin , Arlington, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the IRA exhaustion requirement and to explicitly find that the appellant exhausted his claims with the Office of Special Counsel (OSC), we AFFIRM the initial decision. BACKGROUND At all times relevant to this appeal, the appellant was an employee of the agency’s Commander Navy Regional Maintenance Center in Norfolk, Virginia. Initial Appeal File (IAF), Tab 1 at 5, Tab 10 at 18-19. On September 14, 2021, he filed the instant IRA appeal alleging that he had been subjected to several personnel actions in retaliation for his protected whistleblowing disclosures and requesting a hearing on his appeal. IAF, Tab 1 at 1-5. With his initial appeal, the appellant provided a copy of a close-out letter from OSC dated July 21, 2021. Id. at 8. The administrative judge issued a jurisdictional order in which he apprised the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered him to submit evidence and argument establishing Board jurisdiction. IAF, Tab 3 at 1-9. He also issued a supplemental order instructing the agency to file a response addressing its defense that the doctrine of laches bars the appellant’s claims. IAF, Tab 15 at 1-3.2 After the parties submitted their jurisdictional pleadings, IAF, Tabs 8-10, 18-19, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, IAF, Tab 20, Initial Decision (ID) at 1, 2. Specifically, the administrative judge acknowledged the appellant’s allegations that he made disclosures between 2011-2012 and the agency subjected him to a reassignment in 2013 and nonselections between 2019-2021. ID at 5-8. However, he observed the appellant did not file his OSC complaint until 8 years after the alleged first personnel action. ID at 6. Noting the significant length of the delay and crediting the agency’s argument that it was prejudiced by the appellant’s delay in seeking corrective action, the administrative judge concluded that the appellant’s purported retaliatory reassignment in 2013 was barred by the equitable doctrine of laches. ID at 7. The administrative judge also found that the appellant failed to make a nonfrivolous allegation that his protected disclosures were a contributing factor in the agency’s decision to take personnel actions against him. ID at 8-11. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition for review. PFR File, Tab 5. The appellant has filed a reply. PFR File, Tab 8. DISCUSSION OF ARGUMENTS ON REVIEW The appellant argues on review that the administrative judge erred in concluding that his 2013 reassignment was barred by the doctrine of laches. PFR File, Tab 1 at 5, 10-13; ID at 7. He also argues that he nonfrivolously alleged that his protected disclosures were a contributing factor in the personnel actions imposed by the agency in 2018, 2020, and 2021. PFR File, Tab 1 at 14-19. For the following reasons, we agree with the administrative judge.3 The administrative judge correctly determined that the appellant’s 2013 reassignment is barred by the equitable doctrine of laches. The equitable defense of laches bars an action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. Johnson v. U.S. Postal Service , 121 M.S.P.R. 101, ¶ 6 (2014). The Board has acknowledged that laches may apply as a defense in an IRA appeal and may be applied before reaching the merits of the appeal. Brown v. Department of the Air Force, 88 M.S.P.R. 22, ¶¶ 3, 7-10 (2001). The party asserting laches must prove both unreasonable delay and prejudice. Johnson, 121 M.S.P.R. 101, ¶ 6. Under laches, the mere fact that time has elapsed from the date a cause of action first accrued is not sufficient to bar suit; rather, the delay must be unreasonable and unexcused. Cornetta v. United States , 851 F.2d 1372, 1377-78 (Fed. Cir. 1988). Two types of prejudice may stem from a delay in filing suit. Id. at 1378. The first type, defense prejudice, concerns the Government’s ability to mount a defense due to the loss of records, destruction of evidence, fading memories, or unavailability of witnesses. Id. The second type, economic prejudice, centers on consequences, primarily monetary, to the Government should the appellant prevail. Id. The appellant argues on review, amongst other things, that the administrative judge failed to consider the facts to determine the reasonableness of his delay because the agency caused the delay when it “denied [him] the knowledge of facts necessary to submit a nonfrivolous appeal in 2013.” PFR File, Tab 1 at 11. In the initial decision, the administrative judge found the appellant’s delay in challenging his 2013 reassignment unreasonable, reasoning that the appellant failed to “file a complaint with OSC until after [he] had informed [the appellant that] the Board likely lacked jurisdiction over his first Board appeal challenging the non-selections because, inter alia, he had not filed such a complaint.” ID at 6 (emphasis in original). We agree.4 Here, as set forth above, the appellant’s reassignment occurred 8 years before the appellant filed his request for corrective action with OSC in July 2021. IAF, Tab 1 at 4, 8, Tab 10 at 18. The Board and the U.S. Court of Appeals for the Federal Circuit have regularly found shorter delays to be unreasonable and applied laches to bar such claims. See Pepper v. United States , 794 F.2d 1571, 1573-74 (1986) (stating that a 6-year delay was inexcusable in concluding that the claim was barred by laches); Brown, 88 M.S.P.R. 22, ¶¶ 3, 8 -10 (2001) (finding a 6-year delay to be unreasonable and applying the doctrine of laches to bar an IRA appeal). We find unavailing the appellant’s claims that laches should not apply because the agency’s failure to provide him with the necessary information reasonably delayed him in challenging his reassignment. PFR File, Tab 1 at 11. Specifically, the appellant claimed that the agency failed to inform him of any issues or its attempt to remove him until July 2021 and he learned of the reason for his reassignment in February 2022. Id. However, he averred below that he perceived whistleblower animus after his 2013 reassignment but failed to “submit a complaint on the initial incident, thinking the animus would pass.” IAF, Tab 10 at 9. Thus, he could have raised the issue when he first suspected but failed to do so. Therefore, as the administrative judge correctly concluded, his 8-year delay is unreasonable because he “took no steps to pursue his rights in 2013 or anytime immediately thereafter.” ID at 6; see Johnson, 121 M.S.P.R. 101, ¶ 7 (finding an appellant’s delay unreasonable when he failed to diligently investigate and pursue his rights in a timely manner). The appellant also challenges the administrative judge’s conclusion that his unreasonable delay in seeking corrective action prejudiced the agency. PFR File, Tab 1 at 12-13; ID at 5-7. Specifically, he appears to argue that the administrative judge erred in finding prejudice based solely on the “[deciding official’s] claim[] [that] he has limited memory of his decision to reassign the appellant and of allegations lodged against the appellant” and not considering that5 the agency may have documents to supplement the deciding official’s limited recollection. PFR File, Tab 1 at 12-13. We discern no basis to reverse this finding. The administrative judge credited the agency’s argument that it was prejudiced by the appellant’s unreasonable delay when the appellant’s disclosure and reassignment occurred 8-10 years prior and the deciding official submitted a sworn declaration indicating that he is unable to recall many of the details and circumstances of the appellant’s protected disclosures and his 2013 reassignment. ID at 5-7; IAF, Tab 18 at 7-10. The record is also devoid of evidence that the agency possesses documents to refresh the deciding official’s memory.2 Notwithstanding, we agree with the administrative judge that the appellant’s delay in seeking corrective action would negatively impact the agency’s ability to defend against his claim. As the administrative judge noted, the agency would have to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures and given the deciding official’s limited recollection of the details surrounding the appellant’s disclosures and reassignment, the agency would be disadvantaged to meet such a high standard. ID at 7. The appellant also asserts on review that the agency’s argument that it would be prejudiced due to the limited memory of the deciding official is insufficient because other witnesses are available. PFR File, Tab 1 at 12-13. To support his assertion, the appellant cites Nuss v. Office of Personnel Management , 974 F.2d 1316, 1318 (Fed. Cir. 1992), to seemingly argue that even if the agency established that the deciding official’s lack of memory prejudiced its ability to defend against the appellant’s claim, the agency is not actually prejudiced because “there would be a number of witnesses available to assist the [deciding official] to recall details” and he proved that other witnesses are available. 2 The agency counsel asserted below that documents related to the appellant’s claim created before 2019 were not retained. IAF, Tab 9 at 5 n.2. However, the statements of a party’s representative in a pleading do not constitute evidence. Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995).6 PFR File, Tab 1 at 12-13. The appellant’s reliance on Nuss is misplaced. In Nuss, the court found that the unavailability of a personnel officer familiar with the appellant’s position description did not prejudice the agency because other witnesses testified or submitted affidavits attesting to his actual duties when it was his actual duties, rather than his position description, that was relevant to his claim. 974 F.2d at 13, 18-19. In this case, the deciding official is a witness with knowledge of the facts relevant to the appellant’s claim and the agency’s defense. However, the appellant’s proffered witnesses, like the personnel officer in Nuss, both lack the knowledge relevant to the appellant’s claim that the deciding official considered his protected disclosures in his 2013 reassignment. IAF, Tab 10 at 15-17. Therefore, we agree with the administrative judge that the agency has produced sufficient evidence to demonstrate that it would be unreasonably prejudiced by the appellant’s significant unexplained delay in seeking corrective action related to his 2013 reassignment. Accordingly, we find the appellant’s 2013 reassignment barred by the doctrine of laches. The administrative judge correctly concluded that the Board lacks jurisdiction over his nonselection and return rights claims. The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14; see Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1367 (Fed. Cir. 2020). The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a7 nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim, which he must prove by preponderant evidence. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015). The appellant exhausted his administrative remedies before OSC. The Board may only consider those disclosures and personnel actions that an appellant raised before OSC. 5 U.S.C. § 1214(a)(3); Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 8 (2010). The administrative judge appears to have found implicitly that the appellant exhausted his administrative remedies before OSC. ID at 2. Because the administrative judge did not make specific findings as to which disclosures and personnel actions the appellant exhausted, we do so here. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Chambers, 2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s initial OSC complaint, evidence the original complaint was amended (including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations), and the appellant’s written responses to OSC referencing the amended allegations. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, 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 his appeal. Chambers, 2022 MSPB 8, ¶ 11. Here, the appellant submitted a closure letter from OSC dated July 21, 2021, which provided that “[he] disclosed financial fraud by the Comptroller and mismanagement of the manpower and staffing of [his]8 organization.” IAF, Tab 1 at 8. The letter also refers to the appellant’s allegations that the agency took multiple actions against him, including reassigning him, impeding his return rights, and not selecting him for multiple positions, in retaliation for his disclosures. Id. at 8. In addition, the appellant submitted a letter dated July 19, 2021, which he purports to be a response to OSC. IAF, Tab 10 at 12. Therefore, we explicitly find that the appellant’s response to OSC and OSC’s closure letter are sufficient to establish exhaustion. The administrative judge correctly concluded that the appellant failed to nonfrivolously allege that his protected disclosures were a contributing factor in the agency’s decision to take personnel actions against him in 2018, 2019, and 2021. On review, the appellant seemingly argues that his protected disclosures were a contributing factor in the agency’s decisions to take personnel actions against him because the agency officials involved in the personnel actions were influenced to retaliate against him. PFR File, Tab 1 at 13-20. We are not persuaded. To satisfy the contributing factor criterion at the jurisdictional stage, an appellant need only raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the 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. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1). If an appellant fails to satisfy the knowledge/timing test, the Board 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 the9 proposing or deciding official, and whether those individuals had a desire or motive to retaliate against the appellant. The appellant’s alleged disclosures occurred in 2011-2012, which is at least 6 years before the agency allegedly impeded his return rights in 2018 and 7 years before it failed to select him for positions in 2019 and 2021, respectively. IAF, Tab 8 at 4-6. Therefore, we agree with the administrative judge that such a gap in time is too remote to satisfy the knowledge/timing test. ID at 9-10; see Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a disclosure made 2 1/2 to 3 years before the relevant personnel actions was too remote for a reasonable person to conclude the disclosure was a contributing factor to the actions). Regarding the denial of his return rights, the record reflects that the appellant’s disclosures were not personally directed at the agency officials that he indicated were responsible for denying his rights. IAF, Tab 8 at 4, 9. The record is also devoid of evidence tending to show that the agency officials involved in effecting his return rights had a strong motivate to retaliate against him. Thus, we agree with the administrative judge that the appellant failed to nonfrivolously allege that his disclosures in 2011-2012 contributed to the agency’s decisions concerning his return rights in 2018. The appellant’s disclosures also were not personally directed at the agency officials that he indicated were involved in the agency’s nonselection decisions. Id. at 5-6, 9-10. However, he indicated, below and on review, that two of the agency officials involved in his nonselections had direct knowledge of his alleged whistleblowing activity. PFR File, Tab 1 at 7; IAF, Tab 8 at 4-5. Nonetheless, other than his own conclusory assertions, the appellant identifies no specific evidence or argument that, if true, could show that the agency officials that were aware of his disclosures had any motive to retaliate against him. Id. Therefore, we find that the appellant failed to raise nonfrivolous allegations that he made10 protected disclosures that were contributing factors in the denial of his return rights or the agency’s nonselection decisions. Accordingly, we dismiss the appeal for lack of jurisdiction. NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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.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.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. 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	Abresch_Richard_J_DC-1221-21-0639-W-1__Final_Order.pdf	2024-04-15	RICHARD JAMES ABRESCH v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-21-0639-W-1, April 15, 2024	DC-1221-21-0639-W-1	NP
1,786	https://www.mspb.gov/decisions/nonprecedential/Riccio_Mark_A_DC-3443-18-0550-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARK A. RICCIO, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-3443-18-0550-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mark A. Riccio , Yorktown, Virginia, pro se. Stephen O. Barlow , Ft. Eustis, 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 nonselection appeal as withdrawn with prejudice to refiling. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision dismissing the appeal as withdrawn, and DISMISS the appeal for lack of jurisdiction. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant is employed by the agency as an Operations and Training Officer, GS-0301-14. Initial Appeal File (IAF), Tab 5 at 11. He applied for a Senior Military Analyst position, GS-1301-15, under vacancy announcement number SCER171833321588. IAF, Tab 5 at 10. On November 3, 2017, the agency notified the appellant that it declined to select him for the position. Id. The appellant filed an appeal of his nonselection. IAF, Tab 1 at 2. The administrative judge issued a comprehensive jurisdictional order, notifying the appellant that, generally, the Board lacks jurisdiction over nonselections, with the exception of six circumstances. IAF, Tab 3 at 1-5. She ordered the appellant to submit a response explaining why the Board had jurisdiction over his appeal. Id. at 5-6. Instead, the appellant requested to “withdraw [his] appeal reserving the right to re-file at a later date.” IAF, Tab 6. The administrative judge informed the appellant that his voluntary withdrawal would be with prejudice, in that he would relinquish his right to refile his appeal. IAF, Tab 7 at 1-2. She ordered the appellant to indicate whether he still intended to withdraw his appeal and notified him that she would dismiss the appeal with prejudice to refiling if he did not respond to her order. Id. After the appellant failed to respond, the administrative judge issued an initial decision dismissing the appeal as withdrawn with prejudice. IAF, Tab 8, Initial Decision (ID) at 1-2. The appellant has filed a petition for review, essentially arguing that he was unable to proceed below for medical reasons and contesting the merits of his nonselection for a promotion. Petition for Review (PFR) File, Tab 1 at 1-2.2 2 The appellant submits several documents on review. PFR File, Tab 1 at 3-5, Tab 5 at 5-28. 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). Additionally, such evidence must be material, i.e., the party filing the petition for review must show that it is of sufficient weight to warrant an outcome different from that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The letters from his physician and prospective counsel and the “Army Campaign Plan 2019+” are dated prior to the initial2 The agency has filed a response to the appellant’s petition for review, to which the appellant has filed a reply. PFR File, Tabs 3, 5. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred in dismissing the appeal as withdrawn. An appellant’s withdrawal of an appeal is an act of finality that 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. In dismissing the appeal as withdrawn with prejudice, the administrative judge reasoned that, based on the appellant’s withdrawal request and his failure to respond to her order, he manifested a clear and unequivocal intent to withdraw his appeal. ID at 2. We disagree. The appellant’s withdrawal request was predicated on the belief that he could refile his appeal, showing that he did not understand that withdrawal was an act of finality. IAF, Tab 6 at 1; see Rose v. U.S. Postal Service, 106 M.S.P.R. 611, ¶ 12 (2007) (finding that the appellant’s request to withdraw was not unequivocal when he based his withdrawal on certain conditions). Further, the appellant took no affirmative action indicating his intent to withdraw his appeal with prejudice. Under these circumstances, and considering the appellant’s pro se status, we find that the appellant’s failure to respond to a single order is not the kind of clear, unequivocal, and decisive action necessary to effectuate the withdrawal of an appeal. See Ramos v. Office of Personnel Management , 82 M.S.P.R. 65, ¶ 7 (1999) (finding that the appellant’s decision’s issuance. PFR File, Tab 1 at 3-5; ID at 1. The appellant has not explained why he was unable to submit them below; therefore, we do not consider them. As to the Equal Employment Opportunity (EEO) declaration that he submitted in support of a coworker’s EEO complaint and July and August 2018 versions of the Army strategic plan, those are dated after the issuance of the initial decision, but are not material to the outstanding jurisdictional issue. PFR File, Tab 5 at 5-10, 27-28; see Russo, 3 M.S.P.R. at 349. Finally, regarding the letters from October 2017 to March 2018, the appellant submitted them into the record below, and they are not new. IAF, Tab 1 at 19-34; PFR File, Tab 5 at 11-26; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the record is not new).3 mere acquiescence to statements made by the administrative judge were not the kind of clear and unequivocal statement necessary to effect a withdrawal). Accordingly, we find that the administrative judge erred in dismissing the appeal as withdrawn with prejudice to refiling and vacate the initial decision.3 The appeal is dismissed for lack of jurisdiction. The Board generally lacks jurisdiction over an employee’s nonselection for a position. Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327, ¶ 5 (2007). Despite the general lack of jurisdiction, however, an employee may appeal his nonselection by other statutory means, such as under the Veterans Employment Opportunities Act, under the Uniformed Services Employment and Reemployment Rights Act, through an individual right of action appeal if he claims retaliation for whistleblowing; or regulatory means, such as by raising an employment practices or a negative suitability determination claim. See id., ¶¶ 5-6, 9, 12; 5 C.F.R. § 300.104(a) (providing Board jurisdiction over employment practice claims); 5 C.F.R. § 731.501(a) (providing Board jurisdiction over negative suitability determinations). The administrative judge informed the appellant that the Board may not have jurisdiction over his appeal and apprised him of the burdens of proving jurisdiction over a nonselection action. IAF, Tab 3 at 1-5. The appellant has not alleged, in his pleadings submitted below or on review, that his nonselection fell under any of the aforementioned exceptions. PFR File, Tab 1 at 1-2, Tab 5 at 2-4; IAF, Tab 1 at 2, Tab 6. Rather, his arguments focus on the merits of his nonselection and his displeasure with the agency’s investigation into the selection process, allegations over which the Board lacks jurisdiction. PFR File, Tab 1 at 1-2, Tab 5 at 2-4; IAF, Tab 1 at 2, Tab 6; see Becker, 107 M.S.P.R. 327, ¶ 5. Accordingly, we dismiss the appeal for lack of jurisdiction. 3 Based on the above finding, we do not consider the appellant’s remaining arguments challenging the administrative judge’s decision to dismiss his appeal as withdrawn. PFR File, Tab 1 at 1-2.4 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 you wish to challenge the Board’s rulings on your whistleblower claims7 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	Riccio_Mark_A_DC-3443-18-0550-I-1__Final_Order.pdf	2024-04-15	MARK A. RICCIO v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-18-0550-I-1, April 15, 2024	DC-3443-18-0550-I-1	NP
1,787	https://www.mspb.gov/decisions/nonprecedential/Schmeckpeper_JasonDE-0752-20-0395-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JASON SCHMECKPEPER, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-20-0395-I-1 DATE: April 15, 2024 THIS ORDER IS NONPRECEDENTIAL* Jason Schmeckpeper , Sahuarita, Arizona, pro se. Steven G. Clark , Esquire, Phoenix, Arizona, for the agency. Travis K. Ausland , Esquire, Tucson, Arizona, 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. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Denver Field Office for further adjudication in accordance with this Remand Order. ** A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 following facts are undisputed. The appellant was a WG-11 Aircraft Electrician for the agency. Initial Appeal File (IAF), Tab 11 at 4. He was also a Technical Sergeant for the Arizona Air National Guard. Id. at 9, 21. The appellant was a dual status military technician, which is defined in 10 U.S.C. § 10216(a)(1)(B) and (C) as “a Federal civilian employee who – is assigned to a civilian position as a technician” and “is required as a condition of [his] employment to maintain membership in the Selected Reserve.” IAF, Tab 11 at 113; see 32 U.S.C. § 709. On May 8, 2020, the agency proposed the appellant’s removal from his civilian Aircraft Electrician position for misconduct under 5 U.S.C. chapter 75. IAF, Tab 11 at 29-31. After the appellant responded, the agency issued a decision to remove him effective June 19, 2020. Id. at 11-13. However, due to an administrative error, the appellant’s removal was not processed. Id. at 5. Therefore, on August 6, 2020, the agency issued a new decision to remove the appellant effective August 10, 2020, and it retroactively placed him in a paid administrative leave status for the intervening period. Id. at 5-8. The appellant’s removal became effective on August 10, 2020. Id. at 4. Meanwhile, the Arizona National Guard instituted proceedings to discharge the appellant from his reservist position based on the same conduct underlying his removal from his civilian position. The appellant waived a hearing before the administrative discharge board in exchange for a discharge Under Honorable Conditions. Id. at 21-25. The appellant was discharged from military service effective June 19, 2020. Id. at 9. The appellant filed a Board appeal of his removal and requested a hearing. IAF, Tab 1 at 2-3, 5. The agency moved to dismiss the appeal on the basis that the appellant was no longer eligible to occupy his former WG-11 Aircraft Electrician position because he was no longer a member of the National Guard. IAF, Tab 10 at 5-6. The administrative judge then issued an initial decision2 dismissing the appeal as moot. IAF, Tab 20, Initial Decision (ID). He found that, because the appellant no longer had the military reserve status required as a condition of his dual status employment, the Board would be unable to restore him to his former civilian position, and there was no further relief available to him. ID at 2. The administrative judge further found that the appellant did not raise any affirmative defenses which would prevent dismissal as moot due to the potential for compensatory damages. ID at 2-3. The appellant has filed a petition for review, arguing that the Standard Form 50 (SF-50) documenting his removal still reflects a removal for misconduct, and that he should have the opportunity to have the SF-50 amended to reflect a more favorable basis for separation. Petition for Review (PFR) File, Tab 1 at 3-5. The agency has filed a response. PFR File, Tab 3. ANALYSIS Before turning to the issue of mootness, we first address the basic issue of the Board’s jurisdiction over this appeal under 5 U.S.C. chapter 75. Removals from service are among the adverse actions covered under 5 U.S.C. chapter 75, subchapter II. 5 U.S.C. § 7512(1). Under 5 U.S.C. § 7513(d), an employee against whom an adverse action is taken under that subchapter is entitled to appeal to the Board. Dual status technicians like the appellant are generally considered “employees” for purposes of chapter 75, except as limited by 32 U.S.C. § 709(f). Dyer v. Department of the Air Force , 971 F.3d 1377, 1382 (Fed. Cir. 2020). Specifically, 32 U.S.C. § 709(f) excludes a dual status technician from title 5’s definition of “employee,” and thus precludes a Board jurisdiction, when the adverse action at issue (1) “concerns activity occurring while the member is in a military pay status” or (2) “concerns fitness for duty in the reserve components.” 32 U.S.C. § 709(f)(4). “‘[F]itness for duty in the reserve components’ refers only to military-unique service requirements that3 attend to military service generally, including service in the reserve components or service on active duty.” 32 U.S.C. § 709(j). In this case, the agency does not allege, and there appears to be no indication in the record, that the conduct underlying the appellant’s removal occurred while he was in military pay status. In addition, the documentary evidence is clear that the reason for the appellant’s removal was his alleged misconduct and not his fitness for duty in the reserve components. IAF, Tab 11 at 3-8, 29-31. Therefore, even if the appellant’s alleged conduct might have a bearing on his fitness for duty in the reserve components, the appeal itself does not concern such fitness for duty. The instant appeal is distinguishable from Dyer, in which the court held that a dual status technician’s removal based on his separation from the National Guard concerned his fitness for duty in the reserve components, and that his Board appeal rights were therefore precluded under 32 U.S.C. § 709(f)(4). 971 F.3d at 1382-83. Because the appellant in this case was removed based on allegations of misconduct rather than on military -unique service requirements, we find that 32 U.S.C. § 709(f)(4) does not apply, and that the appellant has the right to appeal his removal to the Board pursuant to 32 U.S.C. § 709(f)(5) and 5 U.S.C. § 7513(d). We now address the issue of whether this appeal is moot. Mootness can arise at any stage of litigation, and an appeal will be dismissed as moot if the appellant has obtained all of the relief he could have obtained had he prevailed before the Board, or if there is no further relief that the Board can grant. Calhoon v. Department of the Treasury , 90 M.S.P.R. 375, ¶ 9 (2001); Uhlig v. Department of Justice, 83 M.S.P.R. 29, ¶ 7 (1999). To render an appeal moot, the situation must be such that the Board cannot grant effective relief. Stringer-Earnest v. Department of the Navy , 57 M.S.P.R. 533, 536 (1993). In this case, we agree with the administrative judge that it is not possible to restore the appellant to his former position because he no longer meets the statutory requirement of membership in the reserve components. ID at 2. Nor is4 it possible to award the appellant back pay covering the period between his actual removal and his statutorily-mandated removal date because his loss of reserve component membership preceded his actual removal by nearly 2 months. We also agree with the administrative judge that the appellant did not raise any affirmative defenses that would prevent this appeal from becoming moot based on the possibility of damages. ID at 2-3; see Alleman v. Department of the Army , 79 M.S.P.R. 233, 240 n.2 (1998) (explaining that an outstanding, viable claim for consequential or compensatory damages prevents an appeal from being moot). Even if proven, the appellant’s due process claim would not carry the potential for a damages award. See 5 C.F.R. §§ 1201.201(c)-(d), .202(b)-(c) (listing the situations in which and authorities under which the Board may award consequential and compensatory damages). Nevertheless, we agree with the appellant that the appeal is not moot because the Board may still grant effective relief by ordering all references to the removal, including the SF-50, the notice of proposed removal, and the two decision letters, expunged from his personnel file. PFR File, Tab 1 at 3-5; see Price v. U.S. Postal Service , 118 M.S.P.R. 222, ¶ 13 (2012); Newcastle v. Department of the Treasury , 94 M.S.P.R. 242, ¶ 11 (2003); Gonzales v. U.S. Postal Service, 44 M.S.P.R. 517, 519 (1990) (providing that when an agency is ordered to cancel an action, all references to such action must be removed from the appellant’s personnel record). Because there is no indication that the agency has thus amended the appellant’s personnel record, we find that the Board can grant further effectual relief and the appeal is not moot. See Veal v. Department of the Army, 52 M.S.P.R. 66, 68 (1991) (finding that the appeal was not moot because the agency had not removed all references to the challenged action from the appellant’s personnel record); cf. Cooper v. Department of the Navy , 108 F.3d 324, 326 (Fed. Cir. 1997) (holding that cancellation of the removal and expungement of all references to the removal from the appellant’s personnel file rendered the Board appeal moot).5 We acknowledge that, even if the removal action at issue in this appeal were completely rescinded, the appellant would have been removed anyway based on his discharge from military service, and that the Board would lack jurisdiction over such a removal. See Dyer, 971 F.3d at 1384. Nevertheless, we agree with the appellant that the difference between a removal for misconduct and a removal pursuant to a discharge Under Honorable Conditions is tangible relief, particularly when it comes to his future employment prospects. PFR File, Tab 1 at 4. In the analogous context of so-called “clean record” settlement agreements, the Board has held that the expungement of documents referencing the action under appeal is a material term of such agreements. See Mullins v. Department of the Air Force, 79 M.S.P.R. 206, ¶¶ 10-11 (1998) (determining that a provision of a settlement agreement, which would mean that anyone looking at the appellant’s personnel file would be unaware of the agency’s removal action against him, was clearly of great importance to his future). Like appellants in such cases, we find that the appellant in this case has a legally cognizable interest in the replacement of personnel documents reflecting removal for misconduct with ones reflecting removal due to honorable military discharge. ORDER For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Schmeckpeper_JasonDE-0752-20-0395-I-1__Remand_Order.pdf	2024-04-15	JASON SCHMECKPEPER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-20-0395-I-1, April 15, 2024	DE-0752-20-0395-I-1	NP
1,788	https://www.mspb.gov/decisions/nonprecedential/Allen_AnthonyDC-0752-17-0276-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY ALLEN, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Agency.DOCKET NUMBER DC-0752-17-0276-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony Allen , Suitland, Maryland, pro se. Elan Cameron , Washington, D.C., for the agency. Robert C. Kusnir , 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. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown, and his request to reopen the appeal is DENIED. 5 C.F.R. §§ 1201.114(e), (g), 1201.118. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 In January 2017, the appellant, formerly employed as a Financial Systems Analyst in the agency’s Office of the Chief Financial Officer, timely filed a Board appeal challenging his removal for unacceptable conduct. Initial Appeal File (IAF), Tab 1, Tab 9 at 40-44. The appellant withdrew his request for a hearing during the proceedings below, and the administrative judge relied upon the written record in issuing an initial decision sustaining the removal. IAF, Tab 26 at 4, Tab 51, Initial Decision (ID). Specifically, the administrative judge found that the agency proved its three specifications of unacceptable conduct and that the appellant failed to prove his affirmative defenses of harmful procedural error, laches, and disability discrimination. ID at 7-15. In particular, the administrative judge considered the appellant’s argument that the agency had committed harmful procedural error by removing him in breach of an August 2014 settlement agreement resolving his complaint before the Equal Employment Opportunity Commission (EEOC). ID at 10-12. The agreement, in relevant part, required the agency to “[d]elete language in the March 10, 2014 Notice of Placement on Administrative Leave that refers to threatening and/or disturbing behavior[.]” IAF, Tab 11 at 12-16. The administrative judge concluded that the appellant could not raise a breach of the agreement before the Board and that, to the extent that the settlement agreement created a “procedure” the agency was required to follow, the agency did not breach the terms of the agreement because it did not require the agency to rescind the March 10, 2014 notice or prevent the agency from taking disciplinary action based on the emails giving rise to the March 10, 2014 notice. ID at 11-12. Finally, the administrative judge found that the agency proved a nexus between the charged conduct and the efficiency of the service, and that the penalty of removal fell within tolerable limits of reasonableness. ID at 15-19. The initial decision became final on June 21, 2017, when neither the appellant nor the agency filed a petition for review. ID at 20.2 On March 23, 2018, the appellant filed a petition for review requesting that the Board reopen his appeal because the EEOC ruled in a December 27, 2017 decision that the agency breached the August 2014 settlement agreement and wrongfully removed him. Petition for Review (PFR) File, Tab 1. The agency has filed a response opposing the petition. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The appellant has not shown good cause to waive the deadline for filing a petition for review. The Board treats a request to reopen an initial decision that became final when neither party petitioned for review as an untimely filed petition for review. Shannon v. Department of Veterans Affairs , 110 M.S.P.R. 365, ¶ 5 (2009). Therefore, we will initially treat the appellant’s submission as an untimely filed petition for review. A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the appellant shows that he received the initial decision more than 5 days after it was issued, within 30 days after his receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this time limit only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(g). To establish good cause for the untimely filing of a petition, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Shannon, 110 M.S.P.R. 365, ¶ 6. To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Id. 3 Here, the appellant has not alleged that he received the initial decision more than 5 days after the date of its issuance. He filed the petition for review 9 months after the initial decision became final. ID at 20, PFR File, Tab 1. A delay of 9 months is significant.2 See, e.g., Summerset v. Department of the Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (observing that a filing delay of 33 days is significant); Greenberg v. Department of Justice , 91 M.S.P.R. 42, ¶ 6 (2002) (stating that a filing delay of over 6 months is significant). The Office of the Clerk of the Board informed the appellant that his petition for review was untimely because it was not filed on or before June 21, 2017, and that the Board’s regulations require an untimely filed petition to be accompanied by a motion to accept the petition as timely filed and/or to waive the filing time limit for good cause and an affidavit or sworn statement setting forth good cause for the delay in filing. PFR File, Tab 2 at 1-2. The appellant did not file a response. Upon review of the appellant’s petition, we find that the appellant has not shown that he exercised due diligence in filing the petition. Although the appellant has pursued his Board appeal pro se, he has not explained why he failed to file a timely petition for review challenging the initial decision and has not presented circumstances beyond his control that prevented him from promptly requesting review of the initial decision when it was first issued. Additionally, the appellant’s pursuit of enforcement of the settlement agreement before the EEOC does not constitute good cause to waive the time limit. Cf. Shannon, 2 Prior to filing the instant petition for review, on January 20, 2018, the appellant filed a pleading with the regional office alleging that the EEOC’s December 27, 2017 decision ruling that the agency breached the settlement agreement warranted reversal of his removal. Allen v. Department of Housing and Urban Development , MSPB Docket No. DC-0752-18-0270-I-1, Initial Appeal File, Tab 1. The pleading was docketed as a new appeal, but the assigned administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction and directing the appellant to file a request to reopen with the full Board. Allen v. Department of Housing and Urban Development , MSPB Docket No. DC-0752-18-0270-I-1, Initial Decision (Feb. 18, 2018). Even if we assess the timeliness of the appellant’s request for review of the 2017 initial decision from his January 2018 filing with the regional office, the delay of 7 months in seeking review of the initial decision is still significant.4 110 M.S.P.R. 365, ¶ 8 (stating that the withdrawal of an appeal to pursue the claims in another forum does not establish good cause for an untimely filed petition for review). Accordingly, the appellant has not established good cause to waive the time limit for filing a petition for review, and we dismiss the petition as untimely filed. The appellant has not shown that unusual or extraordinary circumstances exist that warrant reopening his appeal. Further, we find no basis to reopen the appeal pursuant to 5 C.F.R. § 1201.118. In deciding whether to reopen a closed appeal, the Board will balance the desirability of finality against the public interest in reaching the correct result. Jennings v. Social Security Administration , 123 M.S.P.R. 577, ¶ 17 (2016). Thus, the Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances, such as an intervening event that directly bears on the result or the discovery of misrepresentation or fraud after the issuance of the initial decision, and generally within a short period of time after the decision becomes final. Id.; 5 C.F.R. § 1201.118. Such a short period of time is usually measured in weeks, not years. Jennings, 123 M.S.P.R. 577, ¶ 17. The appellant asserts that the EEOC’s December 27, 2017 decision found that the agency breached the August 2014 settlement agreement and wrongfully removed him, warranting reversal of the initial decision. PFR File, Tab 1 at 1-2. We do not find, however, that the EEOC’s decision requires an outcome different from that of the initial decision. In its December 27, 2017 decision, the EEOC clarified its August 10, 2017 finding that the agency breached the provision of the August 2014 settlement agreement requiring the agency to delete language in the March 10, 2014 notice placing the appellant on administrative leave referring to “threatening and/or disturbing behavior.” Victor S v. Department of Housing and Urban Development , EEOC Petition No. 0420170029, 2017 WL 6941004, at 3 (Dec. 27, 2017); PFR File, Tab 1 at 7-8; see Victor S v. Department of Housing and Urban Development , EEOC Appeal No. 0120171259, 2017 WL 3712729,5 at 3 (Aug. 10, 2017). The EEOC ordered the agency to ensure that references to “threatening and/or disturbing behavior” were removed from the March 10, 2014 notice and opined that such references should not be the basis for subsequent adverse actions. Victor S, EEOC Petition No. 0420170029, at 3; PFR File, Tab 1 at 8. In its decision, the EEOC specifically addressed a November 2, 2015 letter to the appellant, which it considered to have improperly contained such a reference. Victor S, EEOC Petition No. 0420170029, at 3; PFR File, Tab 1 at 7. Despite acknowledging that the appellant argued that the agency had improperly removed him based on a claim of threatening behavior and that the record contained a copy of the agency’s decision to remove the appellant, the EEOC did not address the removal and did not order the agency to rescind the removal in its decision. Victor S, EEOC Petition No. 0420170029, at *1; PFR File, Tab 1 at 6. Thus, the EEOC’s decision did not require reversal of the removal. Moreover, for the reasons set forth in the initial decision, we do not find that the relevant provision of the settlement agreement requires reversal of the removal. As discussed by the administrative judge, the settlement agreement only required the agency to remove language from the March 10, 2014 notice referencing “threatening and/or disturbing behavior.” ID at 11. The relevant provision of the agreement did not require the agency to rescind the notice or refrain from taking action based on the underlying emails that were referenced in the March 10, 2014 notice. ID at 11-12. The provision agreed to by the appellant, who was represented by counsel at the time of the agreement’s execution, is not ambiguous. IAF, Tab 11 at 12-16. Accordingly, the administrative judge properly found that the agreement did not prevent the agency from taking action for the conduct underlying the March 10, 2014 notice, and that the agency did not commit harmful procedural error in effecting the removal action. ID at 11-12. As such, we conclude that the appellant has not presented unusual or extraordinary circumstances that warrant reopening his appeal.6 Accordingly, this is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the removal appeal. NOTICE OF APPEAL 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	Allen_AnthonyDC-0752-17-0276-I-1__Final_Order.pdf	2024-04-15	ANTHONY ALLEN v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DC-0752-17-0276-I-1, April 15, 2024	DC-0752-17-0276-I-1	NP
1,789	https://www.mspb.gov/decisions/nonprecedential/Root_Jeffrey_L_SF-0752-19-0413-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JEFFREY L. ROOT, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-0752-19-0413-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey L. Root , Las Vegas, Nevada, pro se. Michael L. Gurnee , Esquire, Centennial, 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 affirmed his removal based on the charges of unauthorized access to an immigration system of records and lack of candor. Generally, we grant petitions such as 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 analyze the appellant’s retaliation claim under the standard set forth in Pridgen v. Office of Management and Budget , 2022 MSPB 31, we AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). In his initial decision, the administrative judge considered the appellant’s retaliation claim under the standards applicable to retaliation claims arising under 42 U.S.C. § 2000e-16. Initial Appeal File (IAF), Tab 18, Initial Decision (ID) at 16-19. When considering such claims, the Board will find a violation of the statute if the appellant shows by a preponderance of the evidence that his protected activity was a motivating factor in the contested action, even if it was not the only reason. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 41 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. If the appellant makes that showing, the burden shifts to the agency to prove that it would have taken the same action in the absence of the retaliatory motive. Id., ¶ 51. If the agency succeeds, then its violation of 42 U.S.C. § 2000e-16 will not require reversal of the action. Id. Applying this framework, the administrative judge found that the appellant failed to meet his initial burden of showing that his protected activity was a motivating factor in the agency’s decision to remove him. ID at 20-21. 2 However, because the appellant alleged retaliation for requesting reasonable accommodation for his disability, his claim is not covered by 42 U.S.C. § 2000e-16, but instead falls within the scope of the Rehabilitation Act of 1973. The Rehabilitation Act incorporates by reference the standards of the Americans with Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities Amendments Act of 2008, and the Board applies those standards to determine whether there has been a Rehabilitation Act violation. See 29 U.S.C. § 791(f); Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 n.3 (2014). A request for reasonable accommodation is protected activity under the antiretaliation provision of the ADA. 42 U.S.C. § 12203(a); see Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 21 (2013), overruled on other grounds by Pridgen , 2022 MSPB 31, ¶ 47. In determining whether an agency has violated the antiretaliation provision of the ADA, the Board applies a more stringent “but for” standard of causation. Pridgen, 2022 MSPB 31, ¶¶ 44-46. In other words, to show a violation, the appellant must show not merely that his protected activity was a motivating factor in the contested action, but that the agency would not have taken the action in the absence of his protected activity. Under this standard, unlike the framework for retaliation claims under 42 U.S.C. § 2000e-16, the burden of proof does not shift to the agency. See id., ¶ 47. While the administrative judge did not have the benefit of Pridgen, this does not affect the outcome of the case, because the appellant failed to show that his protected activity was a factor at all in his removal, much less the “but for” cause of it. On review, the appellant contends that he suffered a hostile work environment as a result of his accommodation request, and that his supervisors “avoided” him, “made [him] feel like not part of the team,” and assigned him a greater workload than other employees. Petition for Review File, Tab 1 at 7 -8. However, the appellant has provided little or no evidence that his request for reasonable accommodation played a role in the agency’s decision to remove him3 for his admitted misconduct.2 Accordingly, we affirm as modified to incorporate this analysis in support of the administrative judge’s ultimate conclusion that the appellant did not establish his retaliation claim. 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. 2 The appellant’s newly submitted evidence, which indicates that his request for accommodation was granted, does not warrant a different result. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding 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 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 6 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Root_Jeffrey_L_SF-0752-19-0413-I-1__Final_Order.pdf	2024-04-15	JEFFREY L. ROOT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0413-I-1, April 15, 2024	SF-0752-19-0413-I-1	NP
1,790	https://www.mspb.gov/decisions/nonprecedential/Perez_Melbert_J_AT-1221-18-0211-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MELBERT J. PEREZ, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER AT-1221-18-0211-W-1 DATE: April 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Melbert J. Perez , Carolina, Puerto Rico, pro se. Diana M. Espinosa , Esquire, San Juan, Puerto Rico, 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 as withdrawn. For the reasons discussed below, we GRANT the appellant’s petition for review and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 BACKGROUND The appellant is a GS-12 Customs and Border Protection Officer for the agency. Initial Appeal File (IAF), Tab 8 at 36. On January 3, 2018, the appellant filed an IRA appeal, alleging that the agency had retaliated against him for a protected disclosure. IAF, Tab 1. The parties engaged in settlement discussions, agreeing that the appellant would withdraw his appeal in exchange for the agency allowing him to attend a 2-week training course known as the Immigration Advisory Program/Joint Security Program/Police Liaison Program Pre-Deployment Briefing (IAP Briefing).2 Petition for Review (PFR) File, Tab 6 at 4, Tab 8 at 4-6. It appears that the purpose of the IAP Briefing is to prepare employees for overseas deployments, and that it is a prerequisite for foreign deployments under the IAP. PFR File, Tab 6 at 6. The appellant attended the IAP Briefing from April 9-19, 2018. Id. at 10. On April 26, 2018, the administrative judge held a status conference during which the parties notified her of the settlement and that the appellant intended to withdraw his appeal. IAF, Tab 6 at 4, Tab 8 at 6. On May 1, 2018, the appellant filed a motion to withdraw his appeal with prejudice. IAF, Tab 14. The administrative judge issued an initial decision dismissing the appeal as withdrawn. IAF, Tab 15. After receiving two extensions of time, on July 9, 2018, the appellant filed a petition for review, asking the Board to remand his appeal for an adjudication of the merits on the basis that the agency had not yet selected him for overseas deployment. PFR File, Tab 6. He alleges that 24 other employees attended the same IAP Briefing, and that of the 22 whom he was able to reach, all of them had received offers of foreign deployment. Id. at 15. The agency has filed a response, arguing that it satisfied its part of the agreement by sending the appellant to the IAP Briefing, and that no more was required of it. The agency 2 The agreement itself was off the record. It is not clear whether the parties reduced it to writing. 3 asserts that the appellant knew at the time that he withdrew the appeal that a foreign deployment was not guaranteed. PFR File, Tab 8 at 6-7. ANALYSIS The agency argues that, under Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486 (2010), the Board should treat the appellant’s petition for review as a request to reopen. PFR File, Tab 8 at 5. We find that the agency’s argument is based on an incomplete reading of Lincoln. Specifically, the Board in that case considered the appellant’s petition for review as a request to reopen her withdrawn appeal under 5 C.F.R. § 1201.118 only after determining that the petition did not meet the review criteria of 5 C.F.R. § 1201.115. Lincoln, 113 M.S.P.R. 486, ¶¶ 1, 7-9. Because we are granting the timely petition for review in this appeal, we do not reach the issue of whether the Board should exercise its discretion to reopen under 5 C.F.R. § 1201.118. 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); Rose v. U.S. Postal Service , 106 M.S.P.R. 611, ¶ 7 (2007). However, a relinquishment of one’s right to appeal to the Board must be by clear, unequivocal, and decisive action. Rose, 106 M.S.P.R. 611, ¶ 7. Further, the Board may relieve an appellant of the consequences of his decision to withdraw an appeal when the decision was based on misleading or incorrect information provided by the Board or the agency. Id. As explained above, it appears to be undisputed that agency induced the appellant to withdraw his appeal with the promise of allowing him to attend the IAP Briefing. Supra, ¶ 2. Although the agency asserts that that did not guarantee the appellant a foreign deployment, the appellant asserts that the agency misled 4 him as it never intended to consider him for foreign deployment. PFR File, Tab 9 at 3. Based on the current record, it appears to us that the only reason that someone would attend an IAP Briefing is to become qualified for a foreign deployment, and the agency knew full well that the prospect of a foreign deployment was the only reason that the appellant agreed to withdraw his appeal. PFR File, Tab 8 at 9, 16. Thus, it would appear that the agency led the appellant to believe that it was offering him, if not a guarantee, at least a genuine chance at a foreign deployment. However, if what the appellant alleges on petition for review is true,3 this strongly suggests that the agency has not given the appellant a genuine chance at foreign deployment and that it knew all along that allowing him to attend the IAP Briefing was an empty gesture with no real value. PFR File, Tab 6 at 15. It is possible that, by mere chance, the appellant was the only 1 of the 25 IAP Briefing attendees (with the possible exception of the 2 whom the appellant could not reach) who did not receive an offer of foreign deployment within 3 months. However, as purely a statistical matter, this is highly unlikely. These circumstances are all the more questionable in light of the appellant’s claim that his second-line supervisor was the IAP Program Manager, and that she was aware of his whistleblower appeal and the circumstances that led to his attendance at the IAP Briefing. PFR File, Tab 6 at 5, Tab 9 at 3-4. Based on the specific facts alleged by the appellant, which are supported in part by the record and are not in any way contradicted by it, we find that there is a substantial factual question as to whether the appellant withdrew his appeal because the agency misled him into believing that he would have a fair chance at a foreign deployment. See James v. U.S. Postal Service , 25 M.S.P.R. 647, 649 (1985). This issue is best addressed by the administrative judge in the first instance. See id. For the reasons set forth above, we grant the petition for review and remand this appeal for the administrative judge to determine whether the 3 The agency has not denied the appellant’s allegations. 5 appellant’s withdrawal was based on misleading information about the possibility that he could obtain a foreign deployment. To resolve this issue, it will likely be important for the administrative judge to know whether the appellant still has not been offered a foreign deployment, whether the appellant’s allegation that all or nearly all of the other IAP Briefing attendees were offered foreign deployment is true, how selections for foreign deployments are made, and whether the IAP Program Manager has any role in the selection process. If the administrative judge finds that the appellant’s withdrawal was based on misleading information, she shall adjudicate the appeal on the merits. 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.	Perez_Melbert_J_AT-1221-18-0211-W-1__Remand_Order.pdf	2024-04-15	MELBERT J. PEREZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-1221-18-0211-W-1, April 15, 2024	AT-1221-18-0211-W-1	NP
1,791	https://www.mspb.gov/decisions/nonprecedential/Mitchell_Dawn_M_DC-0752-19-0642-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAWN M. MITCHELL, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0752-19-0642-I-1 DATE: April 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Marschell B. Saadon , Killeen, Texas, for the appellant. Maxwell Selz , APO, AE, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed her removal. On petition for review, the appellant argues that the administrative judge improperly denied her request to reopen discovery and refused to hear evidence concerning her placement on administrative leave following the incident at issue in her appeal. She also challenges the merits of the agency’s adverse action, as well as its findings concerning the notoriety 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). incident and the agency’s subsequent lack of trust in her. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 2 After the issuance of the initial decision in this appeal, the Board addressed the proper analytical framework for status-based discrimination claims in Pridgen v. Office of Management and Budget , 2022 MSPB 31 ¶¶ 21-25. 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 decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation3 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Mitchell_Dawn_M_DC-0752-19-0642-I-1__Final_Order.pdf	2024-04-15	DAWN M. MITCHELL v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-19-0642-I-1, April 15, 2024	DC-0752-19-0642-I-1	NP
1,792	https://www.mspb.gov/decisions/nonprecedential/Ault_Addison_D_DC-0752-20-0610-I-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADDISON DAVID AULT, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0752-20-0610-I-1 DATE: April 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Addison David Ault , Pennington, New Jersey, pro se. Chieko Clarke , Esquire, and William Horrigan , Esquire, Alexandria, 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 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 Washington Regional Office for further adjudication consistent 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 with Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND The appellant was a GS-14 Patent Examiner for the agency’s Patent and Trademark Office. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 22. The primary function of this position is to review patent applications and, based on the result of that review, draft an “office action” with respect to each application. IAF, Tab 28, Hearing Transcript (Tr.), Vol. 1 at 18-19 (testimony of a Quality Assurance Specialist). An office action is a written decision on an application and comes in three basic forms—final allowance, final rejection, and non -final notice and opportunity for the applicant to respond by modifying or supplementing an application that might otherwise be rejected. Id. at 19, 23-24 (testimony of the Quality Assurance Specialist). Each draft office action must be signed by an authorized official before it is issued to the applicant. Id. at 21 (testimony of the Quality Assurance Specialist). As a GS-14 Patent Examiner, the appellant had full signatory authority and was thus able to issue office actions independently and without any higher level of review. Id. at 21-24 (testimony of the Quality Assurance Specialist). It is expected that a GS-14 Patent Examiner be highly proficient at his job. Id. at 25 (testimony of the Quality Assurance Specialist). The Patent Examiner performance plan contains three critical elements— Production, Quality, and Docket Management—as well as one non-critical element—Stakeholder Interaction. IAF, Tab 4 at 62-63, 73-83. Performance in each of these elements is rated on a five-tier scale, from Outstanding, to Commendable, to Fully Successful, to Marginal, to Unacceptable. Id. at 62-63. The appellant’s performance year ran from October 1 through September 30 of each year. Id. at 45, 66. 3 The critical element of Quality is the only performance element at issue in this appeal. Quality is evaluated based on the rate at which the Patent Examiner’s office actions contain errors—the lower the error rate, the higher the rating in this element. Id. at 77. Depending on its nature, the rate of error can fall into one of the following three categories: Category 1, Category 2, or Category 3.2 Id. at 476-78. At issue in this appeal are alleged Category 3 errors, which pertain to a Patent Examiner’s failure to “[p]roperly reject[] all rejectable claims in a final rejection; [or] properly allow[] all claims in an allowance.” Id. at 478. An error rate of 7.5% or greater in any category will result in a Quality rating of Unacceptable. Id. at 77. As a GS-14 Patent Examiner, the appellant’s first-level supervisor was a Supervisory Patent Examiner (SPE).3 Tr., Vol. 1 at 16 (testimony of SPE 1). SPEs are the officials primarily tasked with detecting errors in a Patent Examiner’s work. Id. at 131-32 (testimony of SPE 2). Their review is typically done on a quarterly basis, during which period the SPE must thoroughly review at least one office action for each Patent Examiner under her supervision and check it for errors. IAF, Tab 4 at 446. In practice, the appellant’s supervisors would review one or two random office actions per Patent Examiner per quarter, and if they found any errors in that initial sample, then and only then would they expand 2 Generally, only one error will be charged per office action, even if the action contains multiple errors. However, both a Category 1 and Category 2 or 3 error may be charged in a single office action if the two errors are unrelated. In addition, Category 1 errors will not be charged unless the same error is repeated and training and mentoring have failed to correct the problem. IAF, Tab 4 at 77. 3 During the time period at issue in this appeal, the appellant’s former supervisor took another position at the agency and a new SPE replaced her in the appellant’s chain of command. Tr., Vol. 1 at 15-16, 66-67 (testimony of SPE 1), 128, 130 (testimony of SPE 2). We refer to these individuals as SPE 1 and SPE 2, respectively. 4 their review to additional office actions.4 Tr. Vol 1 at 27-28, 77-78 (testimony of SPE 1), 160, 199 (testimony of SPE 2). If a Patent Examiner disagrees with his SPE’s error determination, he has the right to rebut that determination orally or in writing. IAF, Tab 1 at 476. If, after receiving the Patent Examiner’s rebuttal, the SPE maintains that the error was properly assigned, the Patent Examiner may appeal the issue to the Technology Center Director.5 Id. In any case, only “clear error” may be charged against a Patent Examiner’s work. Id. at 77. A clear error is one that (1) does not reasonably comply with the standards identified by the agency, (2) could not have been permitted at the time and under the circumstances that the action was taken, and (3) is not an honest and legitimate difference of opinion as to what action should have been taken. Id. As long as the action taken by the Patent Examiner is reasonable, it is free of clear error, even if his supervisor would have preferred a different approach. Id. For fiscal year 2018, the appellant earned a summary rating of Commendable, including a rating of Commendable in the Quality element. Id. at 63-64. Nevertheless, SPE 1, who was also the appellant’s rating official, observed that the quality of his work had declined in the fourth quarter. She determined that, out of the 26 office actions that the appellant submitted, 4 of them contained Category 3 errors, for an error rate of 15.38%, which was well in excess of Unacceptable. Id. at 154. Accordingly, on October 10, 2018, she issued the appellant an “oral warning,” notifying him that if his performance in 4 To give a rough idea of the total number of office actions that a GS-14 Patent Examiner could be expected to take in a given quarter, we note that the appellant in this case issued 26 office actions in the fourth quarter of fiscal year 2018, and 25 office actions in the first quarter of fiscal year 2019. IAF, Tab 4 at 154, 293. 5 A technology center is a division of the United States Patent and Trademark Office that processes patent applications falling under a particular field of science or engineering. The technology center in which the appellant worked processed biotechnology patent applications. Tr., Vol. 1 at 127-28 (testimony of SPE 2). 5 the Quality element was not at least Marginal for the period between October 28, 2018, and February 2, 2019, then he would be issued a “written warning.”6 During the oral warning period, SPE 2 became the appellant’s new supervisor, and at the close of the oral warning period, she determined that 4 of the 25 office actions that the appellant submitted contained Category 3 errors, for an error rate of 16%. IAF, Tab 4 at 293-300; Tr., Vol. 1 at 156, 158 (testimony of SPE 2). Finding that the appellant failed to demonstrate at least Marginal performance in the Quality element, she issued him a written warning, effective March 17, 2017. IAF, Tab 4 at 293-301. The written warning period constituted an “opportunity to demonstrate acceptable performance” under 5 C.F.R. § 432.103(d), commonly known as a performance improvement period, and ran until June 22, 2017. Id. The appellant completed the written warning period successfully, with an error rate of 4.16%, which was within the Outstanding performance range. Id. at 77, 343. On July 17, 2019, SPE 2 notified the appellant of his successful completion of the written warning period, but she cautioned him of the need to maintain acceptable performance in the Quality element going forward. Id. at 343. Specifically, she notified him that his performance would continue to be monitored over 3 successive 12-week periods, ending March 14, 2020, and that if his performance in the Quality element fell below the Marginal level during any one of those periods, he could face reduction in grade or removal. Id. at 343-45. The first 12-week evaluation period ran from July 21 through October 12, 2019, and the agency determined that, out of the 23 office actions that the appellant submitted during that time, 3 of them contained Category 3 errors, for an error rate of 13.03%, which was Unacceptable. Id. at 36-40. The agency proposed the appellant’s removal for unacceptable performance under 5 U.S.C. chapter 43. Id. at 34-42. After the appellant responded, the agency issued a 6 To account for approved leave that the appellant took during this time period, the agency subsequently extended the oral warning evaluation period to February 16, 2019. IAF, Tab 4 at 158, 160. 6 decision sustaining the charge and removing him effective April 16, 2020. Id. at 22-27. The appellant filed a Board appeal, contesting the merits of the agency’s action and raising affirmative defenses of whistleblower reprisal, retaliation for union activity, and violations of the First Amendment, the Fair Labor Standards Act (FLSA), and the Administrative Procedure Act (APA). IAF, Tab 1, Tab 14 at 2-3. After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 36, Initial Decision (ID). She found that the agency established all the elements of its case, and that the appellant failed to prove any of his affirmative defenses. ID at 9-38. The appellant has filed a petition for review, contesting the validity of his performance standards and disputing the administrative judge’s analysis of his affirmative defenses. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS The appeal must be remanded for further adjudication of the agency’s case in chief. At the time the initial decision was issued, the Board’s case law stated that, in a performance-based action under 5 U.S.C. chapter 43, an agency must show by substantial evidence that (1) the Office of Personnel Management (OPM) approved its performance appraisal system; (2) the agency communicated to the appellant the performance standards and critical elements of his position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his performance during the appraisal period and gave him a reasonable opportunity to improve; and (5) the appellant’s performance remained unacceptable in at least one critical element. White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013). Further, even if the employee successfully completes the appraisal period, he may still be removed for unacceptable performance under chapter 43 if (1) the instances of 7 unacceptable performance are in the same critical elements involved in the appraisal period, and (2) the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the appraisal period. Muff v. Department of Commerce , 117 M.S.P.R. 291, ¶ 5 (2012). In this case, the administrative judge found that the agency established by substantial evidence elements 1 through 4 of the White standard, and although the appellant successfully completed the appraisal period, the agency also showed by substantial evidence that his performance in the Quality element fell below the acceptable level shortly thereafter. ID at 10-20. On petition for review, the appellant does not dispute that OPM approved the agency’s performance appraisal system or that the agency communicated his standards to him. Nor does he appear to dispute that the agency gave him a reasonable opportunity to demonstrate acceptable performance, or that shortly after he successfully completed the written warning period, his performance in the Quality element once again fell below the Marginal level . For the reasons explained in the initial decision, we agree with the administrative judge that the agency proved these elements of its case by substantial evidence . ID at 10, 16-20. The appellant disputes the administrative judge’s finding that his performance standards were valid. PFR File, Tab 1 at 5-6. 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 (2013). On petition for review, the appellant argues that he had no way of knowing how many errors per quarter he was allowed to make and still have acceptable performance. PFR File, Tab 1 at 6-7. He argues that the agency gave him conflicting information, and he questions why he was previously promoted with 6 errors over a 26-week period but was removed after making only 2 errors over a 12-week period. Id. 8 Performance standards should be specific enough to provide an employee with a firm benchmark towards which to aim his performance and must be sufficiently precise so as to invoke a general consensus as to their meaning and intent. Towne, 120 M.S.P.R. 239, ¶ 21. We are not persuaded by the appellant’s argument. Under the Quality standard, as written and as communicated to the appellant on multiple occasions, performance is expressed as a percentage of office actions that contain clear errors, not as a raw number of errors allowed during a given period of time. IAF, Tab 4 at 53-56, 75-78, 157-58, 293, 300. As we believe the appellant understands, it would not work to write the standard in terms of allowable errors per year or per quarter or per other period of time because the number of allowable errors would vary depending on the number of office actions the Patent Examiner submitted during that time period. As for the appellant receiving a promotion despite committing six errors during the preceding 6 months, we do not know what his Quality rating during that time period was or should have been; there is no evidence to show the number of office actions that the appellant submitted during that period, what category those six errors were under, or whether the agency chose to address any of those errors through training or mentoring rather than charge them against the appellant’s performance, which it might well decide to do, especially for a Patent Examiner who has not yet achieved full career ladder promotion.7 IAF, Tab 4 at 77. For the reasons explained in the initial decision, we agree with the administrative judge that the appellant was clearly notified in writing of the Quality performance standard that he was required to meet. ID at 10-11. Not only did the appellant receive detailed notice of the standard, the method under which his performance would be assessed, and the maximum percentage of errors allowed, but the agency also notified him at the beginning of the oral warning 7 GS-14 is the full-performance level for a nonsupervisory Patent Examiner. Tr., Vol. 2 at 165 (testimony of the appellant’s union representative). 9 period, at the beginning of the written warning period, and immediately after the written warning period of the precise timeframes under which his performance in this element would be assessed. IAF, Tab 4 at 157, 300, 343-45. Therefore, we agree with the administrative judge that the agency proved by substantial evidence that it clearly communicated to the appellant this performance standard . In her initial decision, the administrative judge also concluded that the appellant’s performance standards under the Quality element were sufficiently objective. ID at 12-13. She found that, although the criteria of this element had elements of subjectivity, the agency reasonably addressed this matter through its “clear error” standard, and whatever subjectivity remained did not render the Quality standard invalid. ID at 13-14; see Neal v. Defense Logistics Agency , 72 M.S.P.R. 158, 162 (1996) (“[T]he fact that performance standards may call for a certain amount of subjective judgment on the part of the employee’s supervisor does not automatically render them invalid, especially where, as here, the appellant’s position involves the type of professional judgment which is not susceptible to a mechanical rating system.”). The administrative judge also considered the appellant’s argument that SPEs arbitrarily called errors on examiners without a consistent basis for doing so and that SPEs used secret standards and abused the vagueness of the clear error definition to target employees they did not like. However, she found that the record did not support the existence of any such abuses. ID at 14-16. On petition for review, the appellant renews his allegation that the agency applied its Quality standard inconsistently, but he has not identified any evidence in the record to support this allegation. PFR File, Tab 1 at 5-7. He appears to concede this lack of evidence but attributes it to the administrative judge’s denial of his motion to compel. Id. at 7. For the reasons explained below, we find no abuse of discretion in the administrative judge’s ruling. In any event, even if the agency had applied its Quality standard inconsistently or unfairly, this would not support a finding that the performance standard is invalid. In a chapter 43 appeal, 10 evidence of disparate or unequal application of a performance standard in practice may be relevant to an appellant’s affirmative defense of prohibited discrimination or another prohibited personnel practice, but it does not undermine the validity of the standard itself.8 Rutz v. Department of Labor , 28 M.S.P.R. 677, 680 (1985). The appellant does not directly dispute the administrative judge’s finding that his performance in the Quality element fell to the Unacceptable level within 1 year of the beginning of the written warning period. ID at 17-20. Nevertheless, we observe that the appellant has taken issue with how the agency evaluates performance in the Quality element, and we find that this warrants some discussion. As explained above, SPEs do not evaluate the entire body of a Patent Examiner’s work but instead review one or two random samples of that work every quarter to determine whether further scrutiny is warranted. The Board has held that, when an agency charges an employee with failing to meet a performance standard that sets a percentage requirement, it is not required to provide an accounting of every assignment. Addison v. Department of Health and Human Services , 46 M.S.P.R. 261, 269 (1990), aff’d, 945 F.2d 1184 (Fed. Cir. 1991). At a minimum, however, the agency must establish some methodology for selecting the examples of alleged unacceptable performance so that a reasonable 8 Evidence of disparate or uneven application of performance standards to the appellant as compared to non-whistleblowers may be relevant to his whistleblower reprisal affirmative defense, which is discussed further below. See Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (discussing the factors relevant to an agency’s affirmative defense to a claim of whistleblower reprisal, which include any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated). Although the appellant originally raised a claim of sex discrimination, he withdrew that claim, and has not raised a claim of discrimination on review. IAF, Tab 14 at 6-7. In a chapter 75 appeal, inconsistent penalties are a factor for the agency and the administrative judge to consider in determining a reasonable penalty. See McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 11 (2014) (observing, in an appeal of a removal under chapter 75, that among those factors the Board will review in determining the reasonableness of the penalty is its consistency with those imposed upon other employees for the same or similar offenses). However, because the agency took its action here under chapter 43, the Board may not review the penalty. Stein-Verbit v. Department of Commerce , 72 M.S.P.R. 332, 340 (1996). 11 person could conclude that the appellant’s performance fell below the position’s requirements. Id. For the following reasons, we find that the random sample methodology used to review the work quality of Patent Examiners satisfies those criteria. In Player v. Veterans Administration , 32 M.S.P.R. 448, 450 (1987), an agency took a chapter 43 adverse action against the appellant based on her alleged unacceptable performance in the critical elements of “accuracy” and “productivity.” Based on samples of the appellant’s work, the agency found that more than 20% of the documents that she created needed to be returned for correction, and she failed to meet deadlines 85% of the time, both of which exceeded the maximum threshold for acceptable performance. Id. The Board reversed because the agency failed to show either that it evaluated the entirety of appellant’s work product or that the samples it evaluated were selected in an objective, systematic fashion such that the errors in, and the untimeliness of, those samples could be extrapolated to the appellant’s work product as a whole. Id. at 450-52. In Bowling v. Department of the Army , 47 M.S.P.R. 379, 382-84 (1991), the Board reached a similar conclusion in an appeal of a performance-based action under 5 U.S.C. chapter 75. Among other things, the Board found that the agency failed to show that its sampling of the appellant’s work product was objective and systematic such that the errors it identified in the samples could fairly be generalized to the entire body of her work. Id. The agency’s methodology in the instant appeal does not suffer from the same defects, principally because it does not rely on extrapolation from the samples reviewed; nowhere does the agency assume, based on errors found in the office actions that it actually reviewed, that errors existed in any office actions that it did not review. In other words, the agency only charged the appellant with errors that it actually found. The agency’s method of sampling could lead to errors being undercounted, but it could never lead to errors being overcounted. We acknowledge that the agency’s method of random sampling could result in 12 Patent Examiners with similar error rates being treated differently; even if a Patent Examiner’s office actions in a given quarter contain many errors, these would likely be overlooked if the first office action that the SPE selects for review that quarter happens to be error-free. Nevertheless, such, nondiscriminatory, non-retaliatory disparate treatment is immaterial to the issues in a chapter 43 appeal. Although the appellant has not demonstrated any error in the administrative judge’s analysis of the agency’s case in chief, we find that this appeal must be remanded for further adjudication. Shortly after the initial decision was issued, the U.S. Court of Appeals for the Federal Circuit held in Santos, 990 F.3d at 1360-61, that in addition to the elements of the agency’s case set forth above, the agency must also justify the institution of a performance improvement plan by proving by substantial evidence that the employee’s performance was unacceptable prior to that time. 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. Although the record in this appeal already contains evidence suggesting that the appellant’s performance over the 6 months leading up to the written warning period was indeed Unacceptable, IAF, Tab 4 at 88-301; Tr., Vol. 1 at 39-95 (testimony of SPE 1), 139-56 (testimony of SPE 2), 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 written warning was unacceptable in one or more critical elements, see Lee, 2022 MSPB 11, ¶¶ 15-17. The appeal must be remanded for further adjudication of the appellant’s whistleblower defense. To prove an affirmative defense of retaliation for protected whistleblowing, an appellant must prove by preponderant evidence that he engaged in activity protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that the activity was a contributing factor in the contested personnel action. 5 U.S.C. 13 § 1221(e)(1); Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 13 (2015). If an appellant meets this burden, the burden of persuasion shifts to the agency to establish by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(2); Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 24 (2014). In her initial decision, the administrative judge found that the appellant was claiming four written protected disclosures and an unspecified number of oral disclosures. ID at 22. The first written disclosure occurred in or around January 2016, when the appellant disputed errors charged him during the signatory review process, i.e., the review process by which the agency determines whether a Patent Examiner will be granted signatory authority. IAF, Tab 1 at 5. The administrative judge found that this disclosure was protected, but the appellant failed to show that it was a contributing factor in his removal. ID at 22-23, 25-28. The second written disclosure was a February 4, 2016 memorandum to the union in which the appellant requested that the union initiate negotiations about the agency’s performance appraisal program. IAF, Tab 1 at 5, 12-16. The administrative judge found that this disclosure was not protected. ID at 23-24. The third written disclosure was an October 23, 2018 letter that the appellant wrote to the Department of Labor, objecting to the results of recent union elections and criticizing the agency’s prohibition on discussing union matters over its telecommunication systems. IAF, Tab 1 at 5, 18-20. The administrative judge found that even if this letter were considered a protected disclosure, the appellant failed to show that it was a contributing factor in his removal. ID at 24. The fourth written disclosure was a January 19, 2019 email that the appellant sent to the Technology Center Director, protesting his assignment to patent applications left by a former Patent Examiner and complaining of error calls in his work on those applications. IAF, Tab 1 at 5-6. The administrative judge found that this disclosure was not protected. ID at 24-25. 14 The appellant characterized his oral disclosures more generally, stating that he had made “many verbal protected disclosures,” “early and often in [his] career.” IAF, Tab 1 at 6-7. The administrative judge found that the appellant failed to identify any of his alleged oral disclosures with reasonable specificity and therefore failed to show that any of his oral disclosures were protected. ID at 25. The administrative judge then conducted an alternative analysis, finding that even if the appellant had shown that one of his disclosures was protected and was a contributing factor in his removal, the agency proved by clear and convincing evidence that it would have taken the same action regardless. ID at 28-30. On petition for review, the appellant disputes the administrative judge’s finding that disclosure 1 was not a contributing factor in his removal. He appears to criticize the administrative judge’s application of the knowledge/timing test of 5 U.S.C. § 1221(e)(1), under which contributing factor may be inferred if the relevant agency officials knew of the protected disclosure and 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. PFR File, Tab 1 at 9. However, we agree with the administrative judge that contributing factor with respect to disclosure 1 cannot be established through the knowledge/timing test. ID at 25-26. A space of 2 years is generally considered the outer limit for establishing contributing factor under this method, and the time between the appellant’s January 2016 disclosure and the October 10, 2018 oral warning was well in excess of that limit. Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 21 (2013); see Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a lapse of more than 2 years was too great to satisfy the knowledge/timing test). Even if the knowledge/timing test is not satisfied, an appellant can still prove contributing factor by alternative means. In that case, the Board will consider other evidence, such as that pertaining to the strength or weakness of the 15 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. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). The administrative judge considered such evidence in this case and found that the appellant still failed to establish that disclosure 1 was a contributing factor in his removal. ID at 25-28. Specifically, she found that the agency presented strong evidence in support of its removal action, “well in excess of its substantial evidence burden,” that there was no evidence that the appellant’s work was scrutinized more closely than the work of other Patent Examiners, and that none of the relevant agency officials would have had a significant retaliatory motive because disclosure 1 was merely a generalized complaint about the signatory review process and the unidentified officials involved therein. ID at 26-28. The administrative judge further found that SPE 1 was the only official who had been shown to have actual knowledge of disclosure 1, and that her actions prior to leaving the appellant’s chain of command during the oral warning period were inconsistent with retaliatory motive. ID at 27-28. On petition for review, the appellant argues that the administrative judge improperly considered this disclosure in isolation of his many subsequent disclosures about the agency’s quality management practices, and considering these disclosures in the aggregate would yield a finding that disclosure 1 was a contributing factor in his removal. PFR File, Tab 1 at 9-10. However, the appellant’s suggested approach of conducting a single contributing factor analysis for multiple discreet disclosures, some of which are not protected under the Whistleblower Protection Enhancement Act, is not consistent with precedent. See Shannon, 121 M.S.P.R. 221, ¶ 32 (“For each disclosure that she finds protected, the administrative judge shall then determine whether the disclosure was a contributing factor to the appellant’s removal.”). Although the Board has found that a protected disclosure can be linked to a distant performance-based personnel 16 action through an intervening continuum of related performance-based actions, Agoranos, 119 M.S.P.R. 498, ¶ 23, it has never held that such a link can be established through an intervening continuum of related disclosures. We therefore decline to impute a finding of contributing factor to disclosure 1 based on the facts and circumstances surrounding the appellant’s other disclosures. The appellant also argues that his removal under the very quality management practices of which he was complaining offers circumstantial evidence of contributing factor. PFR File, Tab 1 at 10-11. We have considered the appellant’s argument, but we are not persuaded that the relationship between the charge underlying his removal and his disclosure about the signatory review practice several years earlier constitutes evidence, circumstantial or otherwise, that his disclosure was a contributing factor in the action. For the reasons explained in the initial decision, we agree with the administrative judge that the appellant did not prove that disclosure 1 was a contributing factor in the removal. ID at 26-28. Regarding disclosure 2, the appellant argues that the administrative judge should have found that it was protected because it pertained to the same subject matter as disclosure 1. PFR File, Tab 1 at 7. We disagree. In disclosure 1, the appellant accused agency officials of intentionally misapplying the clear error standard to increase the number of errors charged against Patent Examiners’ work. IAF, Tab 1 at 5. As the administrative judge correctly found, this was an allegation of abuse of authority. ID at 22-23. The Board has historically defined an abuse of authority as an arbitrary and capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to herself or to other preferred persons. Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 22 (2013). However, in Smolinski v. Merit Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir. 2022) , the Federal Circuit defined an abuse of authority more broadly as an arbitrary and capricious exercise of authority that is contrary to the 17 agency’s mission. In any event, whichever standard is applied to this case, the result is the same. Disclosure 2 concerned roughly the same subject matter as disclosure 1 (quality management), but it did not contain any similar allegation of wrongdoing. IAF, Tab 1 at 12-16. Instead, it is a request for the appellant’s union to get more involved in negotiating quality management. Id. While the appellant stated in general terms his opinion that the agency’s quality management practices were outdated, frustrating, confusing, and discredited, IAF, Tab 5 at 12, we agree with the administrative judge that disclosure 2 amounted to a policy dispute not covered under the Whistleblower Protection Enhancement Act, ID at 23; see Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶¶ 9-10 & n.3 (2015). Even if the appellant’s allegations were true, they would not represent the kind of danger or wrongdoing described in 5 U.S.C. § 2302(b)(8). Regarding disclosure 3, the administrative judge found that the appellant failed to allege that any responsible management official was aware of this disclosure. ID at 24. Therefore, the administrative judge determined that the appellant did not prove the knowledge element of the knowledge/timing test. Id. On petition for review, the appellant disputes the administrative judge’s analysis, arguing that the knowledge/timing test is not the only way to prove contributing factor and that he established this element of his case by other means. PFR File, Tab 1 at 8. We agree with the appellant that the administrative judge’s contributing factor analysis should not have stopped with the appellant’s failure to satisfy the knowledge/timing test. See Dorney, 117 M.S.P.R. 480, ¶¶ 14-15. However, we find that this error did not prejudice the appellant’s substantive rights because disclosure 3 was not protected. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis to reverse an initial decision). As stated above, disclosure 3 was a letter that the appellant sent to the Department of Labor shortly after a union election. IAF, Tab 1 at 18-20. In this 18 letter, the appellant explained that the agency generally prohibited employees from using the agency email and telephone systems to conduct union business. This prohibition, he argued, made it difficult for full-time telework Patent Examiners to participate in union governance, and during union elections, this policy also had the effect of favoring incumbent candidates and those who worked in the office. Id. However, even if all this is true, we do not find that the appellant had a reasonable belief that his letter evinced any category of danger or wrongdoing listed in 5 U.S.C. § 2302(b)(8). The appellant testified that he believed that the agency’s restrictions on the use of its telecommunication systems violated his or the union’s First Amendment rights. Tr., Vol. 2 at 25-26 (testimony of the appellant). Although the First Amendment generally prohibits the Government from regulating speech based on content, it does not prohibit the Government from “mak[ing] content-based distinctions when it subsidizes speech.” Davenport v. Washington Education Association, 551 U.S. 177, 188-89 (2007); see also Ysursa v. Pocatello Education Association, 555 U.S. 353, 355, 358 (2009) (determining that a state did not violate the First Amendment by prohibiting public employees from making payroll deductions to fund a union’s political action committee, reasoning that “the government . . . is not required to assist others in funding the expression of particular ideas, including political ones”). We find that the appellant in this case was essentially seeking Government subsidization of union elections through the use of agency telecommunications equipment. It is well settled that a union does not have a right to use agency equipment and resources for internal business such as elections, and to the extent that a union’s use of agency resources is not prohibited by law, it is subject to bargaining. See National Oceanic and Atmospheric Administration and National Weather Service Employees Organization, 20 F.S.I.P. 021, 2020 WL 3960982, *27-28 (2020); National Treasury Employees Union and Internal Revenue Service , 38 F.L.R.A. 615, 618-20 (1990). We believe that the appellant understood this at the time he made 19 disclosure 3 because his proposed solution was for the agency and the union to come to an agreement on the matter. IAF, Tab 1 at 20. We find that the appellant lacked a reasonable belief that the agency’s policy on using its telework equipment for internal union business implicated any category of wrongdoing under 5 U.S.C. § 2302(b)(8). Regarding disclosure 4, the administrative judge found that the appellant’s email to the Technology Center Director was not protected because it addressed the appellant’s individual grievance regarding his work assignments and what he regarded as unfair treatment between him and another examiner. ID at 24-25. She further found that the disclosure was conclusory and lacking in specifics about the alleged unequal treatment. Id. The appellant disputes this finding on review, arguing that this disclosure was protected because it included allegations that his supervisor was not doing her job. PFR File, Tab 1 at 8-9. He also argues that the disclosure was sufficiently specific because, in context, the Technology Center Director knew who the appellant was talking about and what his complaints were. Id. at 8. We agree with the appellant. Unfair and inequitable treatment was certainly the gravamen of the appellant’s complaint, but he specifically stated that he was being required to reopen another Patent Examiner’s cases because this individual had “evidently [been] working for years without even cursory oversight.” IAF, Tab 1 at 5-6. Given that one of an SPE’s major duties is to review her subordinate Patent Examiners’ work for quality, and given that the appellant was reworking multiple office actions by a former Patent Examiner whose repeated failure to meet those quality standards had long escaped the SPEs’ attention, we find that the appellant had a reasonable belief that one or more SPEs had not been doing their job. IAF, Tab 1 at 5-6; Tr., Vol. 1 at 26-27 (testimony of SPE 1). We therefore find that the appellant has shown that he reasonably believed that disclosure 4 evidenced gross mismanagement, and thus was protected under 5 U.S.C. § 2302(b)(8). See White v. Department of the Air 20 Force, 63 M.S.P.R. 90, 95 (1994) (defining gross mismanagement as a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission). In so finding, we observe that, to the extent that the appellant was motivated to make this disclosure by his own dissatisfaction with his work assignments, this is not relevant to whether his disclosure was protected. The fact that an appellant’s motivation in making his disclosure may have been personal does not prevent the disclosure from being protected whistleblowing. 5 U.S.C. § 2302(f)(1)(C); Wojcicki v. Department of the Air Force , 72 M.S.P.R. 628, 634-35 (1996). We also find that the appellant has proven, under the knowledge/timing test, that disclosure 4 was a contributing factor in his removal. It is undisputed that the Technology Center Director was aware of this disclosure and that he proposed the appellant’s removal less than a year later. IAF, Tab 1 at 6-7, Tab 4 at 34-42. As noted above, the administrative judge conducted an alternative analysis, finding that if the appellant had made a protected disclosure that was a contributing factor in his removal, the agency proved by clear and convincing evidence that it would have removed him anyway. ID at 28-30. However, such an alternative analysis is not permitted under the law. Under 5 U.S.C. § 1221(e) (2), the Board may not proceed to the clear and convincing evidence test unless it has first made a finding that the appellant established his prima facie case. 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).9 On remand, the administrative judge should conduct a new clear and convincing evidence analysis with respect to disclosure 4. In conducting this analysis, the 9 Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit Systems Protection Board , 880 F.3d 913, 923-25 (7th Cir.), as amended on denial of reh’g and reh’g en banc (7th Cir. 2018). Thus, its disagreement does not implicate the basis for which we cite Clarke here. 21 administrative judge should bear in mind the heightened clear and convincing burden of persuasion for the agency’s rebuttal case.10 See generally Whitmore v. Department of Labor , 680 F.3d 1353, 1367-68 (Fed. Cir. 2012); see Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 28 (2011) (finding that “clear and convincing” is an intentionally high standard of proof). The appellant has not demonstrated error in the administrative judge’s analysis of his claim of retaliation for protected union activity. To establish an affirmative defense of reprisal for union activity that could be the subject of neither an equal employment opportunity complaint nor an individual right of action appeal, the appellant must prove by a preponderance of the evidence that he engaged in protected activity, the accused official knew of the protected activity, the adverse employment action under review could, under the circumstances, have been retaliation, and there was a genuine nexus between the retaliation and the adverse action. Warren v. Department of the Army , 804 F.2d 654 (Fed. Cir. 1986) ; Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016). In her initial decision, the administrative judge found that the specific union activity for which the appellant was claiming reprisal was his February 4, 2016 memorandum requesting that the union initiate negotiations about the agency’s performance appraisal program (the same memorandum at issue in the appellant’s second claimed whistleblower disclosure, discussed above). ID at 30-31. She found that, even assuming that this constituted protected union activity, the appellant failed to establish a genuine nexus between this activity and his removal. ID at 31-32. On petition for review, the appellant argues that the administrative judge used the wrong standard. He states that the administrative judge simply dismissed his claim on the basis that SPE 1 was the only individual with demonstrable knowledge of his February 4, 2016 memorandum, “but it is not 10 Because we are remanding this appeal for the administrative judge to conduct a new analysis of the agency’s affirmative defense, we do not reach the appellant’s argument on review that the initial analysis of the issue was incorrect. PFR File, Tab 1 at 9 -12. 22 necessary for each and every individual to know about a given disclosure or activity in order for that activity to make a contribution to an adverse personnel action.” PFR File, Tab 1 at 13. We agree with the appellant in principle that a genuine nexus could be established between protected activity and an adverse action even if not every official involved in the action knew about the activity. However, we disagree with his characterization of the administrative judge’s analysis. The administrative judge did not simply dismiss his claim; she carefully analyzed it, considering the passage of time between this activity and the appellant’s removal, who had knowledge of the activity, the roles that various officials played in the removal action, and any possible anti-union or retaliatory animus that these individuals might have. ID at 31-32. These were all appropriate considerations, and for the reasons explained in the initial decision, we agree with the administrative judge that the appellant did not establish a genuine nexus between the February 4, 2016 memorandum and his removal . Id.; see Warren, 804 F.2d at 658. The appellant has not demonstrated error in the administrative judge’s analysis of his First Amendment claim. The appellant argued that the agency violated his and his union’s First Amendment right to free speech by restricting their ability to discuss the Patent Examiner performance standards within the office. IAF, Tab 17 at 5-7. The administrative judge found that the appellant failed to show that the agency violated his First Amendment right to free speech, and in any event, the appellant did not establish a causal connection between this matter and his removal. ID at 34-35. On petition for review, the appellant appears to argue that the administrative judge misconstrued his claim. According to the appellant, the agency has deprived the union of a forum for debate about the Patent Examiner performance standards, which he states are not valid because the union cannot legitimately bargain about them. PFR File, Tab 1 at 13. However, even considering the appellant’s argument in this light, he has not shown that his 23 removal resulted from a violation of his First Amendment rights. There is insufficient evidence in the record to show that the agency did not discuss the standards with its employees or the union. To the extent that the appellant is alleging that the agency violated the requirements of chapter 43, we disagree. “Agencies are encouraged to involve employees in developing and implementing” their performance appraisal systems and programs, but the law does not require that they do so.11 5 C.F.R. §§ 430.204(c), .205(d). The appellant has not demonstrated error in the administrative judge’s analysis of his claim that the agency violated the FLSA. The appellant argued below that the agency violated the FLSA by requiring Patent Examiners to work in excess of 40 hours per week without additional compensation, which is prohibited by 29 U.S.C. § 207(a)(1). IAF, Tab 17 at 8. Specifically, he argued that the time involved in rebutting error charges and revising completed work often requires that Patent Examiners exceed that work-hour threshold. Id. In her initial decision, the administrative judge found that the agency did not violate the FLSA in this regard because overtime or other time was available for this purpose. ID at 35-36. She further found that the appellant failed to show that the agency’s actions prevented him from rebutting charged errors, or that the time he spent rebutting error calls negatively affected his performance in the Quality element. ID at 36-37. On petition for review, the appellant disputes the administrative judge’s findings. He argues that, although overtime or other time might technically have been available, the agency discouraged and denied his requests for it. PFR File, Tab 1 at 14. However, for the reasons explained in the initial decision, we agree with the administrative judge that the appellant has not shown a causal connection between his removal and the denial or discouragement of his requests for time . ID at 36-37. Furthermore, the record shows that, as a salaried professional, the 11 We are not suggesting that the current performance appraisal system and program were developed without employee or union input. The record does not seem to contain any evidence on this one way or the other. 24 appellant was an FLSA-exempt employee. IAF, Tab 4 at 22; see 29 C.F.R. §§ 541.300-.301 (defining the exemption for learned professionals). Therefore, it would appear that the overtime provisions of 29 U.S.C. § 207 do not apply to him. See 29 U.S.C. § 213(a)(1) (exempting professional employees from coverage under 29 U.S.C. § 207). Any entitlement that the appellant had to overtime appears to have arisen under the collective bargaining agreement or agency policy rather than the FLSA. The appellant also states that “it is not out of the question” that the agency would have removed him in retaliation for requesting such time. PFR File, Tab 1 at 14. However, this is a claim of retaliation that is not properly before the Board because the appellant did not raise it below. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Furthermore, the appellant’s speculation that his removal could have been in retaliation for these requests does not meet the preponderant evidence standard. See Fisher v. Environmental Protection Agency , 108 M.S.P.R. 296, ¶ 18 (2008). The appellant has not demonstrated error in the administrative judge’s analysis of his claim that the agency violated the APA. The appellant argued below that the agency’s “clear error” standard was nebulous and inconsistently applied, and therefore was in violation of 5 U.S.C. § 706(2)(A) as being “arbitrary and capricious.” IAF, Tab 17 at 8-11. In her initial decision, the administrative judge found that, even if the appellant’s performance standards and procedures were subject to the APA, the appellant failed to show that they were arbitrary and capricious. ID at 37. Specifically, she found that the standards were clearly stated and tied to the appellant’s work product, that error charges were subject to multiple layers of review, and that the errors charged against the appellant were appropriate. ID at 37-38. 25 On petition for review, the appellant argues that, “[j]ust because multiple layers of management go along with targeting an individual does not mean that the individual was not targeted.” PFR File, Tab 1 at 14. He asserts that agency management had reason to target him because of his protected disclosures. Id. at 14-15. This appears to us less an argument about the APA and more an argument about the appellant’s whistleblower reprisal claims, which we have already addressed above. We find that the appellant has not identified any error in the administrative judge’s analysis of this issue. Furthermore, the appellant’s challenges to his performance standards are excluded from review under the APA. The APA proscribes arbitrary and capricious “agency action.” 5 U.S.C. § 706(2). Agency actions covered include rulemaking. 5 U.S.C. § 551(4). However, the agency’s adoption of its internal performance metrics is excepted from the rulemaking procedures covered by the APA. See 5 U.S.C. § 553(a)(2) (exempting from APA rulemaking procedures “matter[s] relating to agency management or personnel”). The administrative judge did not abuse her discretion in denying the appellant’s motion to compel. Discovery is the process by which a party may obtain relevant information from another party to an appeal. 5 C.F.R. § 1201.72(a). “Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence.” Id. An administrative judge has wide discretion over matters pertaining to discovery, and the Board will not reverse her rulings on discovery matters absent an abuse of discretion. Parker v. Department of Housing and Urban Development , 106 M.S.P.R. 329, ¶ 9 (2007); see 5 C.F.R. § 1201.41(b)(4). The appellant’s theory of the case revolves largely around the agency’s alleged abuse and uneven application of the Quality standard, which he argues manifested in error calls that were either arbitrary or engineered to target specific employees. He contends that he was unable to develop the record on this issue 26 because the administrative judge improperly denied his motion to compel discovery. PFR File, Tab 1 at 4, 7, 11-13, 15. For the following reasons, we find no abuse of discretion in the administrative judge’s ruling. The appellant timely served his initial discovery requests on June 25, 2020, which was 30 days from the date of the acknowledgment order. IAF, Tab 2, Tab 6; see 5 C.F.R. § 1201.73(d)(1). In addition to several interrogatories, the appellant propounded 10 requests for production of documents. IAF, Tab 6. The agency’s responses were due 20 days later, on July 14, 2020, and it appears that the agency met that deadline, although its responses were not entirely to the appellant’s satisfaction.12 IAF, Tab 10. Under the Board’s regulations, the appellant had 10 days to serve follow-up discovery on the agency, which would have been July 24, 2020. 5 C.F.R. § 1201.73(d)(2). Further, any motion to compel would have been due by the same date. 5 C.F.R. § 1201.73(d)(3). However, the appellant did not serve follow-up discovery or file a motion to compel within that time limit. Instead, at the July 30, 2020 prehearing conference, he informed the administrative judge that he was in the process of drafting a motion to compel. IAF, Tab 14 at 2. The administrative judge notified this pro se appellant that the time for filing a motion to compel had already passed, but in the interest of justice, she extended the time limit to August 3, 2020. Id. On that date, the appellant filed a motion to compel discovery. IAF, Tab 15 at 4-8. He revised 5 of his 10 original requests for production (items 3, 4, 6, 9, and 10), propounded 3 new requests for production (items 11 through 13), and sought an order compelling discovery on all 8 of them. Id. The agency opposed the appellant’s motion on both timeliness and relevance grounds. IAF, 12 On July 15, 2020, the appellant filed a document captioned “Response to Agency Opposition,” in which he took issue with some of the agency’s discovery responses and objections. IAF, Tab 10. The appellant subsequently clarified that this was not intended as a motion to compel but was instead an attempt to resolve the discovery dispute directly with agency counsel. IAF, Tab 14 at 1-2. 27 Tab 19. The administrative judge then issued an order denying the motion to compel in its entirety, finding that the discovery requests at issue were either irrelevant, untimely, or both. IAF, Tab 20. For example, in item 3, the appellant requested the number of examiners whom the agency had removed under chapter 43 over the past 20 years, and which critical element those examiners failed to meet. IAF, Tab 15 at 5. He stated that this information would show broad patterns in the agency’s use of chapter 43. Id. The administrative judge found that this request exceeded the scope of the appeal, both in time and in subject, and that his argument that the information would establish “broad patterns” was speculative and did not identify the relevancy of this information to the issues in the appeal. IAF, Tab 20 at 2. She found that the agency responded appropriately to this request by providing the appellant information about cases similar to his. Id. We agree with this ruling because the agency’s general historic use of chapter 43 adverse action procedures is not tied to the agency’s burden of proof in this particular case or any of the appellant’s affirmative defenses. Under item 4, the appellant had originally requested information about all of the errors charged by SPEs 1 and 2 during the course of their careers. IAF, Tab 15 at 5. When the agency responded that it did not have the requested information, the appellant amended his request and sought a comparative analysis of the errors charged in several specific office actions. Id. at 5-6. The administrative judge found that this was a new request for narrative information unlike the original document request, and she denied it as untimely. IAF, Tab 20 at 2. We agree with this ruling because the appellant’s motion to compel was seeking information outside the scope of the initial discovery request and was served on the agency outside the regulatory time limit for making follow-up requests. See 5 C.F.R. § 1201.73(d)(2). Under item 6, the appellant requested that the agency provide a list of office cases in the Art Units to which SPEs 1 and 2 were assigned, and which 28 were either reopened for prosecution or had a second non-final office action issued, indicating whether errors were charged in those cases. IAF, Tab 15 at 6. In his motion to compel, the appellant revised his request and sought information regarding the raw number of errors charged to each Patent Examiner in the Art Units during the past 5 years, as well as the raw numbers of reopened cases or second non-final office actions for each Patent Examiner. Id. at 6-7. The administrative judge denied this request as not reasonably calculated to lead to the discovery of admissible evidence and as untimely because it sought different information than the initial request. IAF, Tab 20 at 3. We agree with the administrative judge’s ruling, for the reasons stated in her order. Id. Not only did the appellant’s motion to compel seek information outside the scope of the initial discovery request, but also it does not appear that the information sought could be used to show that the agency improperly identified any of the errors at issue in the instant appeal or that there existed errors in the other cases that were improperly excused. The Board remands this appeal for further proceedings consistent with this Nonprecedential Order. For the reasons set forth above, we remand this appeal for further adjudication regarding the appellant’s whistleblower defense and his performance prior to the written warning period. Regarding the appellant’s whistleblower defense, both parties were fully apprised of their respective burdens below and had a full and fair opportunity to present evidence and argument on the issue. IAF, Tab 31. Therefore, on remand, the administrative judge need not accept any further evidence or argument on the appellant’s whistleblower claim except to the extent it concerns the agency’s determination that the appellant’s performance warranted issuing the written warning. See Santos, 990 F.3d at 1364. Regarding the appellant’s performance leading up to the written warning period, because the parties were not notified below that this would be an issue before the Board, the 29 administrative judge shall accept relevant argument and evidence on remand and shall hold a supplemental hearing if appropriate. See Lee, 2022 MSPB 11, ¶ 17. The administrative judge shall then issue a new initial decision consistent with Santos. See id. If on remand the agency makes the additional showing required under Santos and proves by clear and convincing evidence that it would have removed the appellant notwithstanding disclosure 4, 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 prewritten warning 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 her legal reasoning, as well as the authorities on which that reasoning rests). ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Ault_Addison_D_DC-0752-20-0610-I-1__Remand_Order.pdf	2024-04-15	ADDISON DAVID AULT v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-20-0610-I-1, April 15, 2024	DC-0752-20-0610-I-1	NP
1,793	https://www.mspb.gov/decisions/nonprecedential/Blackstone_Elmer_K_DA-1221-18-0079-W-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ELMER K. BLACKSTONE, Appellant, v. DEPARTMENT OF ENERGY, Agency.DOCKET NUMBER DA-1221-18-0079-W-1 DATE: April 12, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew Kim , Esquire, Atlanta, Georgia, for the appellant. Adam DeDent , Esquire, Reesha Trznadel , Esquire and Sean Johnson , Esquire, Golden, 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 his request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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 as to the second Carr factor to find a slight retaliatory motive in connection with the appellant’s suspension and to supplement the administrative judge’s analysis regarding the third Carr factor, we AFFIRM the initial decision. BACKGROUND The appellant is employed as a GS-15 Program Manager at the agency’s Southwestern Power Administration (SWPA), Office of Corporate Compliance. Initial Appeal File (IAF), Tab 13 at 43. On July 19, 2017, his supervisor proposed to suspend him for 14 days based on charges of inappropriate remarks and inappropriate conduct toward a supervisor. Id. at 22-24. In support of the inappropriate remarks charge, the proposal notice alleged that, while at the airport on business travel on June 4, 2017, the appellant stated to a female coworker that he had access to her home address because he was in human resources and that he could find her phone number by going “in any men’s room around here and it will be written on the wall.” Id. at 22. The proposal notice explained that the appellant made this statement in the presence of another coworker and an airport employee and that he was wearing an SWPA logo shirt at the time. Id. In support of the inappropriate conduct toward a supervisor charge, the proposal notice set forth the following two specifications: (1) on June 6, 2017, when the appellant met with his supervisor to discuss his June 4, 2017 comments, he stated, 3 among other things, “I am either going to make your life hard, or make your life easy”; and (2) during a phone call on July 12, 2017, the appellant talked over his supervisor and stated, among other things, “you’re about to get schooled in employee relations and labor relations” and “you better hope you have your house in order because if you don’t, it’s not gonna be good for you.”2 Id. at 22-23. On July 21, 2017, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that his supervisor proposed to suspend him in retaliation for informing him that the SWPA Administrator’s request to have an attorney advisor reassigned after she conveyed her intent to file an Office Inspector General (OIG) report would constitute reprisal for whistleblowing. IAF, Tab 6 at 17-27. The appellant also alleged that the proposed suspension was taken in retaliation for informing an OIG investigator about the SWPA Administrator’s attempted reprisal against the attorney advisor. Id. at 21. In September 2017, OSC notified the appellant that it was closing its investigation into his complaint without action. IAF, Tab 1 at 92-98. The appellant timely filed the instant IRA appeal. IAF, Tab 1. Although he initially requested a hearing, he subsequently withdrew that request. IAF, Tabs 33, 35. In an initial decision based on the written record, the administrative judge found jurisdiction over the appeal but denied the appellant’s request for corrective action, finding that the agency established by clear and convincing evidence that it would have proposed his 14 -day suspension even in the absence of his protected whistleblowing disclosure. IAF, Tab 42, Initial Decision (ID). The appellant has filed a petition for review of the initial decision, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. DISCUSSION OF ARGUMENTS ON REVIEW When, as here, an appellant establishes jurisdiction over his IRA appeal, he must then establish a prima facie case of whistleblower retaliation by proving by 2 On October 13, 2017, the deciding official sustained the charges but mitigated the proposed suspension period to 5 days. IAF, Tab 13 at 19-20. 4 preponderant evidence that he made a protected disclosure that was a contributing factor in a personnel action taken against him.3 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure or activity.4 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. 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). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence. Lu, 122 M.S.P.R. 335, ¶ 7. Rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Id. In the initial decision, the administrative judge found that the appellant made a protected disclosure that he reasonably believed evidenced a violation of the Whistleblower Protection Enhancement Act (WPEA) when, on June 1 and 2, 2017, he informed his supervisor that the SWPA Administrator’s plan to reassign the attorney advisor after she stated that she intended to file an OIG report could constitute whistleblower reprisal. ID at 11-13. She also found that the appellant established that his disclosure was a contributing factor in the proposed 3 Preponderant evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than untrue. 5 C.F.R. § 1201.4(q). 4 Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). 5 suspension by showing that his supervisor knew of the disclosure and that he proposed to suspend him within a short period of time after he made the disclosure. ID at 16. Thus, she concluded that the appellant established a prima facie case of whistleblower reprisal with respect to his disclosure of a potential WPEA violation to his supervisor.5 ID at 10-16. We agree with these findings, which the parties have not challenged on review. Having concluded that the appellant established a prima facie case of whistleblower reprisal, the administrative judge proceeded to consider whether the agency demonstrated by clear and convincing evidence that it would have taken the same personnel action against the appellant in the absence of his protected disclosure. ID at 17-25. Regarding the first Carr factor, the administrative judge found that the agency’s evidence in support of the proposed 14-day suspension was strong because, even crediting the appellant’s version of the events at issue, his behavior was inappropriate. ID at 19-23, 25. She further found it significant that the appellant did not dispute, as alleged in the proposal notice, that his supervisor had counseled him on several occasions in the past about the manner in which he treated and spoke to employees. ID at 22. The appellant has not challenged these findings on review, PFR File, Tab 1, and we discern no basis to disturb them. Thus, we agree that the agency’s evidence in support of the proposed suspension was strong. Regarding the second Carr factor, the administrative judge found that the record was devoid of any evidence suggesting retaliatory motive on the part of the appellant’s supervisor in proposing the 14-day suspension.6 ID at 23-24. To 5 The administrative judge found that the appellant’s May 2017 email to his supervisor regarding the “Separation of [the Equal Employment Opportunity] Complaint Program from the Agency’s Defensive Function” did not constitute a protected disclosure and that, although he engaged in protected activity when he made the OIG report, he failed to establish contributing factor with respect to that activity. ID at 10-13, 16. The appellant does not challenge these findings on review, PFR File, Tab 1, and we discern no basis to disturb them. 6 The administrative judge found that there was no evidence that the SWPA Administrator had any involvement in the appellant’s proposed suspension. ID at 24 6 the contrary, she found that the record established that he agreed that reassigning the attorney advisor would constitute whistleblower reprisal and that he had made the same disclosure to the SWPA Administrator. Id. In so finding, she relied on a text message from the appellant’s supervisor to the appellant regarding his conversation with the SWPA Administrator, stating, in part, “Hopefully he will choose wisely.” ID at 23 (quoting IAF, Tab 1 at 67). In addition, she considered a memorandum drafted by the appellant’s supervisor reflecting that he advised the SWPA Administrator on June 2, 2017, that he should not reassign the attorney advisor because reassignment could qualify as an adverse action and retaliation for her disclosure. ID at 23-24 (citing IAF, Tab 26 at 36). Thus, she concluded that the appellant’s supervisor proposed to suspend him for 14 days because of his misconduct and not because of any retaliatory motive. ID at 23-24. On review, the appellant argues that the administrative judge erred in relying on the text message to find that his supervisor did not have a retaliatory motive because the text message does not establish that his supervisor informed the SWPA Administrator that he opposed the reassignment. PFR File, Tab 1 at 10. We agree with the administrative judge that the text message supports a finding that the appellant’s supervisor agreed with the appellant’s disclosure and did not have a hostile reaction to it. The appellant also argues that the administrative judge erred in relying on his supervisor’s memorandum because he drafted it 10 days after the meeting in question and only after he met with human resources. Id. at 10-11. We likewise find no merit to this argument. First, we note that the appellant does not argue, or provide any evidence to suggest, that his supervisor mispresented what was said at the meeting with the SWPA Administrator, and we find no basis to conclude that he did. See Fry v. Office of Personnel Management , 110 M.S.P.R. 649, ¶ 17 (2009) (observing that public officials are presumed to do their jobs properly and in good faith). Second, we n.9. The parties have not challenged this finding on review, PFR File, Tabs 1, 3, and we discern no basis to disturb it. 7 find that the unrebutted, routinely made memorandum is probative notwithstanding the fact that the appellant’s supervisor drafted it 10 days after the meeting in question and after meeting with human resources. See Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83 -87 (1981) (setting forth the relevant factors for assessing the probative value of hearsay evidence). The appellant also appears to argue on review that the administrative judge should have found retaliatory motive because his disclosure was highly critical of the agency’s conduct. PFR File, Tab 1 at 10. We agree and modify the administrative judge’s analysis on the second Carr factor accordingly. The Board has found that “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures . . . as the criticism reflects on them in their capacities as managers and employees.” Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 65 (quoting Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012)); Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 28-29 (same). Here, the appellant’s disclosure concerned potential whistleblower reprisal by the SWPA Administrator. Thus, while the appellant’s criticism of the SWPA Administrator’s planned action may not have directly implicated the appellant’s supervisor, it nonetheless cast the SWPA Administrator, and thus the agency, in a critical light. See Whitmore, 680 F.3d at 1370-71 (finding motive to retaliate because the appellant’s criticisms “cast [the agency], and, by implication all of the responsible [agency] officials, in a highly critical light by calling into question the propriety and honesty of their official conduct”).. In light of the foregoing, we modify the initial decision to find that the record reflects a slight retaliatory motive in connection with the appellant’s proposed 14-day suspension. In her consideration of the third Carr factor, the administrative judge found that the appellant’s proffered comparator—a supervisory GS-15 Program Manager with the same supervisor as the appellant who received only a reprimand for failing to take action upon learning that a subordinate had discriminated 8 against another employee—was not similarly situated. ID at 24-25; IAF, Tab 26 at 12, 111, Tab 38 at 21-22. In so finding, the administrative judge explained that, unlike the appellant, the other supervisor had not been counseled regarding similar misconduct in the past, the events in question occurred several years prior to the discipline, and he had been successful in all other aspects. Id. On review, the appellant argues that the administrative judge took an overly restrictive view of the third Carr factor and erred in finding that the other supervisor was not similarly situated. PFR File, Tab 1 at 9-10. We agree. Our reviewing court has held that, under Carr, the requirement that comparator employees be “similarly situated” does not require “virtual identity” and that “[d]ifferences in kinds and degrees of conduct between otherwise similarly situated persons within an agency can and should be accounted for.” Whitmore, 680 F.3d at 1373. Accordingly, we find that the appellant and the other GS-15 Program Manager at the SWPA, who share a supervisor and supervisory status, are similarly situated. See id. (finding two supervisors within the same branch of the same department to be “similarly situated from an employment position and responsibility perspective”). As discussed in the initial decision, however, there are differentiating factors here that explain the difference in treatment, including the nature of the misconduct and the fact that, unlike the appellant, the other supervisor was not counseled regarding similar misconduct in the past. ID at 24-25. Thus, we find that this comparator evidence does not weigh against the agency. See Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 34 (2013) (finding that the comparator employee’s deficiencies were not sufficiently similar to the reasons for the appellant’s termination to provide persuasive evidence regarding Carr factor three). As the administrative judge correctly found, there is no other evidence in the record regarding the treatment of similarly situated comparators. ID at 25. If either or both of the first two Carr factors do not support a finding that the agency would have taken the same personnel action absent the disclosure or 9 protected activity, the agency’s failure to present evidence of the third Carr factor may prevent it from carrying its overall burden. Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 26-30; see also Miller v. Department of Justice , 842 F.3d 1252, 1259-63 (Fed. Cir. 2016). Here, we are left with the firm belief that the agency would have taken the same action in the absence of the appellant’s protected disclosure based on the strength of the evidence in support of its action and the absence of a sufficient motive to retaliate against him. Accordingly, the appellant’s request for corrective action remains denied. 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 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions to provide a comprehensive summary of all available review options. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 obtain 11 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.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 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 13 for Merit Systems Protection Board appellants before the 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.	Blackstone_Elmer_K_DA-1221-18-0079-W-1__Final_Order.pdf	2024-04-12	ELMER K. BLACKSTONE v. DEPARTMENT OF ENERGY, MSPB Docket No. DA-1221-18-0079-W-1, April 12, 2024	DA-1221-18-0079-W-1	NP
1,794	https://www.mspb.gov/decisions/nonprecedential/Cassidy_PaulPH-1221-18-0223-W-1__Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAUL CASSIDY, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER PH-1221-18-0223-W-1 DATE: April 12, 2024 THIS ORDER IS NONPRECEDENTIAL1 Paul Cassidy , South Burlington, Vermont, pro se. Agatha Swick , Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which 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, AFFIRM the portion of the initial decision finding that the appellant did not make a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8), 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the ultimate finding of the initial decision that the Board lacks jurisdiction over this appeal, and REMAND the case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND On January 11, 2015, the agency appointed the appellant to the excepted service position of Transportation Security Officer with the agency’s Transportation Security Administration at the Burlington International Airport in Vermont. Initial Appeal File (IAF), Tab 6 at 14. The agency terminated his employment on April 2, 2015, before the completion of his 2-year trial period, due to failure to meet the designated certification standards of his position. Id. at 13-14, 16-18. On September 10, 2017, the appellant filed a complaint with the Office of Special Counsel (OSC) in which he disputed the agency’s stated reason for his termination. IAF, Tab 1 at 5, 8-12. In a letter dated January 10, 2018, OSC informed the appellant that it had closed its inquiry into his allegations and notified him of his right to file an IRA appeal with the Board. Id. at 8. On March 12, 2018, the appellant filed an IRA appeal with the Board in which he alleged that members of management targeted, harassed, and ultimately terminated him after he voiced his concerns regarding the assignment of an incompetent mentor and the existence of inconsistencies between the national and local standard operating procedures (SOPs). IAF, Tab 1 at 6, 13, 15-18, 31, Tab 5 at 4-5. He described that the work environment was hostile due to incidents of nepotism, corruption, and sexual harassment that he purportedly witnessed or personally experienced at the agency. IAF, Tab 1 at 13-32. The administrative judge issued an Order to Show Cause that set forth the burdens of proof for an IRA appeal and ordered the appellant to provide evidence and argument that his IRA appeal is within the Board’s jurisdiction. IAF, Tab 4. In his response, the appellant reiterated his prior claims. IAF, Tab 5. Without2 holding the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s putative disclosures did not satisfy the Board’s nonfrivolous pleading standard. IAF, Tab 7, Initial Decision (ID) at 6-9. The administrative judge explained that the appellant’s allegation of SOP discrepancies lacked the required level of specificity and that the appellant had not alleged facts sufficient from which a disinterested observer could reasonably conclude that his allegation of his mentor’s incompetence evidenced any category of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Id. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW We affirm the administrative judge’s finding that the appellant did not make a nonfrivolous allegation of a protected disclosure. Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),2 the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations3 that (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The appellant does not challenge on review, and we discern no reason to disturb, the administrative judge’s finding that, while the appellant exhausted his administrative remedies before OSC as to his putative disclosures regarding his 2 The relevant events occurred after the December 27, 2012 effective date of the WPEA. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the WPEA to this appeal. 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).3 incompetent mentor and SOP discrepancies, he failed to make a nonfrivolous allegation that these disclosures were protected under 5 U.S.C. § 2302(b)(8). ID at 5-9; PFR File, Tab 1 at 3-4; see Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980), (noting that, before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect, and identify the specific evidence in the record that demonstrates the error) . We remand the appeal to the regional office for adjudication of the appellant’s perceived whistleblower claim. Under certain circumstances, an appellant can establish jurisdiction over an IRA appeal without making a nonfrivolous allegation that he made a protected disclosure. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011). Specifically, an individual who is perceived as a whistleblower is still entitled to whistleblower protections, even if he has not made protected disclosures. Id. In such cases, the Board will focus its analysis on the agency’s perceptions, i.e., whether the agency officials involved in the personnel actions at issue believed that the appellant made or intended to make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id., ¶ 8. The issue of whether the appellant actually made protected disclosures is immaterial; the issue of whether the agency perceived the appellant as a whistleblower will essentially stand in for that portion of the Board’s analysis in both the jurisdictional and merits stages of the appeal. Id. Thus, to meet his jurisdictional burden, the appellant must show that he exhausted his remedies with OSC and make nonfrivolous allegations that the agency perceived him as a whistleblower and that such perception was a contributing factor in the decision to take or not take the personnel action at issue. Id., ¶ 9. If the appellant meets his burden of proof, the agency may still prevail if it can show by clear and convincing evidence that it would have taken4 the personnel action at issue absent its perception of the appellant as a whistleblower. Id. On review, the appellant reiterates the allegations he made below that members of management “knew [he] was about to blow the whistle and they went to great lengths to silence [him] before [he] could do so.” PFR File, Tab 1 at 3; IAF, Tab 1 at 6, 13. He observes that, after he informed his mentor that he was a writer, the news “spread like [wildfire]” and several employees, including members of management, expressed immoderate interest in his writing endeavors. IAF, Tab 1 at 31; PFR File, Tab 1 at 4. He noted that, although he “made it clear that he was a creative writer and not a journalist,” he “sensed a strange paranoia when people inquired [as to the subject matter of his] writing.” IAF, Tab 1 at 31. These allegations appeared in a 20-page narrative, which the appellant clarified in his response to the Order to Show Cause was a copy of the complaint he filed with OSC. IAF, Tab 1 at 13-32, Tab 4 at 6, Tab 5 at 4-5. Here, the appellant did not receive explicit notice of how to establish jurisdiction over an IRA appeal as a perceived whistleblower, and the defect was not corrected by the agency’s submissions or by the initial decision. IAF, Tabs 4, 6-7; see Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (stating that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue); Scott v. Department of Justice , 105 M.S.P.R. 482, ¶ 6 (2007) (explaining that an administrative judge’s failure to provide an appellant with proper notice can be cured if the agency’s pleadings or the initial decision puts the appellant on notice of what he must do to establish jurisdiction) . Although it may not be necessary for an administrative judge to provide notice in every IRA appeal of how to establish jurisdiction as a perceived whistleblower, we find that the administrative judge in this case should have afforded the appellant such notice in light of his particular allegations.5 ORDER For the reasons discussed above, we AFFIRM, in part, and VACATE, in part, the initial decision, and REMAND this case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. The administrative judge shall notify the appellant of how to establish jurisdiction over an IRA appeal as a perceived whistleblower and afford the parties the opportunity to submit evidence and argument, including a hearing, if warranted, before adjudicating the issue on remand. See Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 36 (2013). In the remand initial decision, the administrative judge may incorporate by reference the findings and determinations of the initial decision affirmed by this Remand Order. Id. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Cassidy_PaulPH-1221-18-0223-W-1__Remand_Order.pdf	2024-04-12	PAUL CASSIDY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-1221-18-0223-W-1, April 12, 2024	PH-1221-18-0223-W-1	NP
1,795	https://www.mspb.gov/decisions/nonprecedential/Ledogar_RobertNY-0752-20-0161-I-3_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROBERT LEDOGAR, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER NY-0752-20-0161-I-3 DATE: April 12, 2024 THIS ORDER IS NONPRECEDENTIAL1 H oward B. Zakai , Esquire, and Raymond R. Granger , Esquire, New York, New York, for the appellant. Cedric D. Bullock , Esquire, and Margo L. Chan , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s removal action . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 REMAND the case to the New York Field Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was a Supervisory Deputy U.S. Marshal (SDUSM), who oversaw a group of 10 to 12 U.S. Marshals Service (USMS) personnel and, at times, directed a New York-New Jersey Regional Fugitive Task Force (Task Force), which consisted of USMS personnel and local and state law enforcement officers. Ledogar v. Department of Justice , MSPB Docket No. NY-0752-20- 0161-I-3, Appeal File (I-3 AF), Tab 6 at 4; Hearing Transcript (HT) (testimony of the appellant). In 2014, Deputy U.S. Marshal (DUSM) D.M.,2 one of the appellant’s subordinates, filed complaints with the agency’s Equal Employment Opportunity (EEO) office and Office of Professional Responsibility-Internal Affairs (OPR-IA), claiming that members of the Task Force had harassed her and discriminated against her. I-3 AF, Tab 6 at 5. The appellant was interviewed during the agency’s investigation into these complaints, and he corroborated D.M.’s claims of harassment and discrimination.3 Id. at 6; HT (testimony of the appellant). Shortly after his interview, V.M., a Task Force member D.M. accused of discrimination and harassment, aggressively confronted the appellant while off-duty, and accused him of betraying the Task Force. HT (testimony of the appellant). In or around September 2015, the agency closed out its investigation, finding that D.M.’s claims were unsubstantiated. I-3 AF, Tab 6 at 6. That same month, Supervisory Inspector K.E., who oversaw the Task Force, and a Task Force contractor, F.L., contacted OPR-IA and accused the appellant of going through K.E.’s locked office and F.L.’s locked desk. Ledogar v. Department of 2 Due to the number of individuals referenced in this order, we have used initials to minimize confusion. 3 The appellant also personally confronted members of the Task Force regarding their treatment of D.M. HT (testimony of the appellant). 3 Justice, MSPB Docket No. NY-0752-20-0161-I-2, Appeal File (I-2 AF), Tab 10 at 309; HT (testimony of the appellant). OPR-IA investigated the claim (OPR-IA Case No. 15-0780), determined that there was insufficient evidence to support a finding of misconduct by the appellant, and closed out the matter without further action. I-2 AF, Tab 10 at 309. Shortly after that case closed, the appellant was subjected to a second OPR-IA investigation (OPR-IA Case No. 16-0705) after V.M. accused him of using racial slurs and owning a gym with a convicted felon, J.D. Ledogar v. Department of Justice , MSPB Docket No. NY-0752-20-0161-I-1, Initial Appeal File (IAF), Tab 18 at 4-39; I-2 AF, Tab 10 at 329. Based on these allegations, the agency proposed the appellant’s removal in March 2017. IAF, Tab 18 at 4-5. During the appellant’s oral reply to the March 2017 proposed removal, the deciding official4 notified the appellant that she had been contacted by B.E., the ex-girlfriend of the appellant’s former partner, who accused the appellant of giving her a cell phone that he had allegedly stolen from an arrestee. HT (testimony of the appellant); IAF, Tab 12 at 171-72. The appellant responded to the allegations, providing, among other things, a letter from his former partner,5 who accused B.E. of conspiring with members of the Task Force, who she had become friendly with during the course of their relationship, to make false allegations against the appellant.6 IAF, Tab 12 at 171-72; HT (testimony of the appellant). On April 26, 2017, the deciding official in the March 2017 proposed removal found that the charges against the appellant were unsupported by the 4 The deciding official in this current removal action is a different individual than the one who acted as the deciding official in the March 2017 proposed removal action. IAF, Tab 6 at 18, Tab 18 at 5. 5 Because the record does not appear to contain a copy of the letter, we rely on the appellant’s summary of the letter which was provided as part of his written reply submitted to the deciding official of the March 2017 proposed removal. IAF, Tab 12 at 171-72. 6 It was also noted that B.E., a civilian, would not have known that there was a proposed removal pending against the appellant, nor would she have known who the deciding official was or how to contact her without help. IAF, Tab 12 at 171-72. 4 record, and issued the appellant a “letter of closure” notifying him that the agency had determined that the allegations underlying OPR-IA Case No. 16-0705 were unsubstantiated and closed out the matter. IAF, Tab 18 at 4-5. In or around April 2017, OPR-IA opened up a third investigation against the appellant, OPR-IA Case No. 17-0576, based on a litany of accusations made by B.E, including stealing property and drugs from arrestees, using racial slurs, and misusing his Government vehicle.7 Id. at 40-114. On January 21, 2020, OPR-IA closed out the matter, once again finding B.E.’s accusations unsubstantiated. Id. at 115-16. During this timeframe, OPR-IA opened a fourth case against the appellant, OPR-IA Case No. 17-0183. HT (testimony of the appellant). The origins of that case, which led to the current removal action, are as follows: J.D., who was incarcerated, informed the appellant that he had information regarding a political corruption investigation of a local politician.8 I-3 AF, Tab 6 at 7. The appellant contacted the U.S. Attorney’s Office (USAO), which obtained a writ of habeas corpus authorizing J.D.’s removal from New York State custody to provide assistance with the investigation. Id. However, the New York Department of Corrections and Community Supervision (DOCCS) was not made aware of the exact circumstances surrounding J.D.’s release because of the sensitive nature of the investigation, and so it contacted the agency’s Office of the Inspector General (OIG), questioning the appellant’s role in J.D.’s release. IAF, Tab 12 at 211; HT (testimony of the appellant). In an attempt to clear up the situation, the USAO provided a letter to DOCCS regarding the circumstances of J.D.’s release, IAF, Tab 13 at 104-105, which was provided to OIG, IAF, Tab 12 at 210, and, on 7 Although B.E. made the accusations, there is some suggestion that V.M. was behind B.E.’s accusations. IAF, Tab 13 at 608-09, 613, 662-63. 8 The appellant had developed a relationship with J.D. after arresting him several times, such that J.D. would provide him with tips occasionally regarding criminal activities. HT (testimony of the appellant). 5 November 22, 2016, OIG notified OPR-IA that it considered the complaint to be a “management matter,” id. at 206. Nevertheless, OPR-IA opened an investigation into the matter, and interviewed the appellant on March 31, 2017, regarding the release of J.D. at the request of the USAO. IAF, Tab 13 at 247-95. OPR-IA did not interview the appellant again until 2019, when it interviewed him on April 17, April 18, and July 15, 2019. I-3 AF, Tab 6 at 6. The scope of these later interviews was substantially larger than the original scope of DOCCS’s complaint, i.e., J.D.’s release, and encompassed issues including photos found on the appellant’s Government-issued cell phone, the extent of his relationship with J.D., and his friendship with another individual, who was also a convicted felon. IAF, Tab 13 at 297-678. On January 9, 2020, the agency proposed the appellant’s removal based on the findings of OPR-IA Case No. 17-0183, charging him with the following: (1) conduct unbecoming a SDUSM (three specifications); (2) lack of candor (two specifications); (3) misuse of position (four specifications); (4) misuse of Government-owned vehicle (two specifications); (5) failure to follow instructions (one specification); (6) failure to follow USMS policy (two specifications); and (7) misuse of Government property-IT Device (three specifications). IAF, Tab 12 at 174-95. The deciding official removed the appellant from the Federal service, effective April 20, 2020, affirming charges 1-3 and 5-7, although she did not sustain all the specifications under charges 3, 6, and 7. IAF, Tab 6 at 8-18. The deciding official did not sustain charge 4. Id. at 12-13. The appellant filed a Board appeal, alleging in part that his removal was in retaliation for his protected EEO activity, i.e., opposing the Task Force’s discrimination and harassment of D.M. IAF, Tab 1 at 6, Tab 14 at 4-7. Specifically, the appellant accused the agency of targeting and pursuing investigations against him based on patently false allegations by Task Force members, and holding those investigations open for years “to conduct a fishing 6 expedition in hope of discovering grounds to remove [him].” IAF, Tab 14 at 15. The appellant further alleged that OPR-IA’s Senior Inspector, D.N., “had a direct and open line of communication with USMS Deputy Director [D.D.] regarding the status of [the a]ppellant’s open OPR-IA cases.” Id. Senior Inspector D.N. was one of the inspectors assigned to investigate at least two of the appellant’s cases, including the one that led to his removal. Id. During discovery, the appellant filed a motion to compel, requesting that the administrative judge compel the agency to produce five witnesses for deposition, including D.D. and D.N., explaining that they were likely to have information regarding his retaliation defense. IAF, Tab 21 at 9-12, 16. The administrative judge granted the appellant’s motion to compel in part, compelling the agency to produce the deciding official and the appellant’s supervisor for deposition, but the administrative judge denied the appellant’s request to compel the other witnesses, including D.N. and D.D., finding that their depositions were not likely to lead to the discovery of admissible evidence. IAF, Tab 28. Then, on June 5, 2021, approximately 3 months after the parties filed prehearing submissions and just over 3 weeks before the hearing, the appellant filed a motion requesting to amend his prehearing submissions to add a newly discovered witness, E.T., who was a recently retired Senior Inspector in OPR-IA.9 I-3 AF, Tab 5, Tab 7 at 7-11. The appellant explained that E.T. reached out to him in “mid-May 2021” and that, on May 26, 2021, he learned that E.T.: (1) had knowledge of communications between Senior Inspector D.N. and former Deputy Director D.D. concerning the appellant’s cases and that the investigations into the appellant were considered “hot button issues” for the agency’s executive 9 The appellant also requested that the administrative judge compel the agency to produce documentation related to “evidence of disparate penalties . . . and evidence bearing directly upon [a]gency personnel’s character for truthfulness and otherwise upon their credibility, bias, and retaliatory and other improper motive.” I-3 AF, Tab 7 at 4-5. The administrative judge denied this request, finding that discovery ended, and that the individuals cited by the appellant were not valid comparators. I-3 AF, Tab 10. The appellant does not object to this portion of the administrative judge’s ruling on review. 7 management; (2) had conversations with agency personnel, including Senior Inspector D.N., in which she learned that agency personnel were out “to get” the appellant and that Senior Inspector D.N. bragged that he “got” the appellant; and (3) believed, based on her communications and observations, that OPR-IA’s investigations were motivated, “at least in part, by retaliatory animus . . . and that such animus stemmed from [the a]ppellant’s support and defense of D.M. and [] exposing misconduct on the part of the Task Force, [Investigative Operations Division], and the USMS as a whole.” I-3 AF, Tab 7 at 7-8. The administrative judge denied the appellant’s motion in a one-page order, stating that discovery had ended and E.T.’s testimony was “not relevant to the issues before [her].”10 I-3 AF, Tab 10. After holding a hearing, the administrative judge issued an initial decision sustaining all the charges and specifications on which the agency action is based, except for charge 6, i.e., failure to follow USMS policy, and finding that the agency established nexus. I-3 AF, Tab 25, Initial Decision (ID) at 10-42. She denied the appellant’s retaliation claim, finding that he “failed to submit any credible record evidence in support of his claims of EEO retaliation” and that there “simply was no merit” to the appellant’s claim that OPR-IA’s investigations were the result of false allegations fabricated by the Task Force members to retaliate against him. ID at 42-47. Thus, after finding that the agency had considered all relevant factors and that removal was within the bounds of reasonableness, the administrative judge affirmed the agency action. ID at 47-52. The appellant has filed a petition for review, arguing, among other things, that the administrative judge abused her discretion when she denied his request to call E.T. as a witness, and when she denied his motion to compel the agency to 10 After the first day of the hearing, the appellant filed a motion in limine for leave to call E.T. as a rebuttal witness and for a subpoena for her to appear, claiming that the agency “open[ed] the door to her testimony at the hearing” and that E.T. could rebut specific claims made by the agency’s witness. I-3 AF, Tab 14. The administrative judge denied the appellant’s motion in another one-page order, citing only to “the reasons indicated in the agency’s [o]pposition.” I-3 AF, Tab 16. 8 produce Senior Inspector D.N. for a deposition.11 Petition for Review (PFR) File, Tab 3 at 30-32. The agency has responded in opposition, PFR File, Tab 5, and the appellant has replied to the agency’s opposition, reiterating the arguments made in his petition for review, PFR File, Tab 6. DISCUSSION OF ARGUMENTS ON REVIEW Although an administrative judge has wide discretion to control the processing of appeals, Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010), such discretion is not unfettered. However, to obtain a reversal of an initial decision on the grounds that the administrative judge abused her discretion on evidentiary matters, the appellant must show that relevant evidence, which could have affected the outcome, was disallowed. See id.; 5 C.F.R. § 1201.115(c). For the reasons explained below, we find that the administrative judge abused her discretion when she denied the appellant’s request to call E.T. as a witness, and when she denied the appellant’s request to compel the agency to produce Senior Inspector D.N. for a deposition. Thus, we remand this appeal for further adjudication in accordance with the instructions set forth below. The administrative judge abused her discretion by denying the appellant’s request to call E.T. as a witness at the hearing. We find that the administrative judge abused her discretion when she denied the appellant’s request to call E.T. as a witness. I-3 AF, Tab 10. In doing so, we recognize that an administrative judge has wide discretion under the Board’s regulations to exclude witnesses when it has not been shown that their testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985); see 5 C.F.R. § 1201.41(b)(10). However, the administrative judge’s reasons for denying the appellant’s request, i.e., that discovery had closed and E.T.’s testimony would not be relevant to the issues before her, are unsupported by the record. I-3 AF, Tab 10. The appellant 11 The appellant does not object to the administrative judge’s denial of the other four witnesses that he requested to depose. 9 claimed E.T. would testify that she knew that the Senior Inspector D.N. had a direct line of communication with Deputy Director D.D regarding his investigations into the appellant, that the investigations were “hot button issues” for agency executive management, that agency personnel were out to get the appellant, that Senior Inspector D.N. bragged that he “got” the appellant, and that the investigations were retaliatory. I-3 AF, Tab 7 at 7. E.T.’s testimony, on its face, is relevant to the appellant’s claim of retaliation, which the administrative judge accepted as an issue before her in the prehearing conference order. Id.; I-2 AF, Tab 11 at 1-2. Further, although the appellant requested to add E.T. as a witness after discovery had closed, he provided good cause for the delay, namely, that he only learned of E.T.’s existence in May 2021, when E.T. reached out to him. I-3 AF, Tab 7 at 4, 7. Therefore, we find that there was no basis to exclude E.T. from testifying, especially in light of the compelling nature of her expected testimony. In the initial decision, the administrative judge found that the appellant had failed to submit “credible evidence” in support of his retaliation claim. ID at 43. The administrative judge should not have excluded a witness whom the appellant indicated had relevant evidence in support of his claim of retaliation, only to then find that he failed to produce sufficient evidence to establish that claim. See Gregory v. Federal Communications Commission , 79 M.S.P.R. 563, ¶ 15 (1998) (finding that the administrative judge abused her discretion when she denied the appellant’s request for witnesses that could support her claims of harassment and difficult working conditions, only to find that she did not establish those claims). Accordingly, we find that the administrative judge abused her discretion in denying the appellant’s request to call E.T. as a witness. The administrative judge abused her discretion in denying the appellant’s motion to compel the agency to produce Senior Inspector D.N. for a deposition. In addition to excluding E.T., the appellant argues that the administrative judge abused her discretion in denying his motion to compel the agency to 10 produce Senior Inspector D.N. for a deposition. PFR File, Tab 3 at 32. We agree with the appellant. Discovery is the process by which a party may obtain relevant information from another person or party that the other person or party has not otherwise provided. Chandler v. Department of the Treasury , 120 M.S.P.R. 163, ¶ 10 (2013); 5 C.F.R. § 1201.72(a). Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. Chandler, 120 M.S.P.R. 163, ¶ 10; 5 C.F.R. § 1201.72(a). What constitutes relevant information in discovery is to be liberally interpreted, and uncertainty should be resolved in favor of the movant absent any undue delay or hardship caused by such request. Chandler, 120 M.S.P.R. 163, ¶ 10. It is well established that administrative judges have broad discretion in ruling on discovery matters and, absent a showing of abuse of discretion, the Board will not find reversible error in such rulings. Miller v. U.S. Postal Service , 85 M.S.P.R. 494, ¶ 9 (2000). Here, we find that the administrative judge abused her discretion by taking an overly narrow view of discovery, and denying the appellant’s request to compel the deposition of Senior Inspector D.N. IAF, Tab 28 at 3. From the outset of this appeal, the appellant asserted that his removal was in retaliation for his opposition to the discrimination and harassment suffered by D.M. IAF, Tab 1 at 6, Tab 14. As part of this claim, the appellant alleged that OPR-IA’s investigations into him were retaliatory, and that Senior Inspector D.N. was part of that retaliatory effort. IAF, Tab 14 at 15. Thus, contrary to the administrative judge’s ruling, the appellant’s request to depose Senior Inspector D.N. was reasonably calculated to lead to the discovery of admissible evidence and the appellant should have had the opportunity to fully explore his claim. IAF, Tab 28 at 3. As a result of the administrative judge’s error, the appellant’s ability to develop his retaliation claim was stunted, which necessarily influenced the administrative judge’s conclusion that he failed to submit sufficient evidence of retaliation. ID at 43. Once again, we find that the administrative judge should 11 not have denied the appellant’s request to depose a witness who was allegedly involved in the retaliatory scheme, only to then find that he failed to produce sufficient evidence in support of his retaliation claim. See Miller, 85 M.S.P.R. 494, ¶ 9 (finding that the administrative judge abused his discretion in not enforcing his order requiring the agency to produce discoverable information necessary for the appellant to prove her claim of disability discrimination). Accordingly, we find that the administrative judge abused her discretion in denying the appellant’s motion to compel the agency to produce Senior Inspector D.N. for a deposition, which hindered his ability to fully develop his affirmative defense and meet his burden of proof. Instructions for the administrative judge on remand. On remand, the administrative judge is instructed to reopen discovery and allow the appellant to take the deposition of Senior Inspector D.N. Additionally, the administrative judge should allow both parties the opportunity to depose E.T. She should also allow the parties sufficient time and ample latitude to pursue relevant information learned from the depositions. This will include the opportunity to seek additional discovery based upon those new depositions, in accordance with 5 C.F.R. § 1201.73(d)(2). Upon the completion of the reopened discovery period, the administrative judge shall schedule a supplemental hearing on the appellant’s retaliation claim, and allow the parties to call E.T. as a witness. The appellant shall also be allowed to call D.N. and any other relevant witnesses he learns of via his depositions of E.T. and D.N.12 The administrative judge should then issue a new initial decision fully addressing the issues in this appeal. To the extent that additional discovery in this appeal leads to evidence relevant to the charges or the penalty, the administrative judge should reexamine those issues as well as the appellant’s claim of retaliation. See Spithaler v. Office of 12 The administrative judge shall also allow the parties to recall witnesses for the limited purpose of addressing information learned during the reopened discovery period. 12 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). On remand, the administrative judge should also apprise the appellant, in accordance with Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-24, 30 & n.5, of his burden of proof on the retaliation claim, including the different standards of proof, the type of relief available under each standard, and the various methods of proof available to him. ORDER For the reasons discussed above, we remand this case to the New York Field Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Ledogar_RobertNY-0752-20-0161-I-3_Remand_Order.pdf	2024-04-12	ROBERT LEDOGAR v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-0752-20-0161-I-3, April 12, 2024	NY-0752-20-0161-I-3	NP
1,796	https://www.mspb.gov/decisions/nonprecedential/Nelson_Brian_R_DE-315H-21-0119-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRIAN R. NELSON, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DE-315H-21-0119-I-1 DATE: April 12, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Aaron J. Gragg , Fort Huachuca, Arizona, for the appellant. Richard C. Wolfe , Esquire, Fort Huachuca, Arizona, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. On petition for review, the appellant argues that he has new evidence showing that he finished his initial probationary period before the agency terminated him. 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). As noted above, the appellant claims he has new evidence that he received from the agency on or about May 26, 2021, and he asserts that it was not available to him, despite his due diligence, before the close of the record below. Petition for Review File, Tab 2 at 5, 9. He argues that the new evidence, a Standard Form 50 (SF-50) dated April 22, 2020, states that he completed his initial probationary period. Id. at 7, 9. However, with its motion to dismiss the appeal filed below, the agency attached a copy of the same document and it explained that the document was issued in error because the appellant had only completed 1 year of the 2 -year initial probationary period statutorily required by 10 U.S.C. § 1599e (repealed 2022).2 Initial Appeal File (IAF), Tab 9 at 4-5, 11. 2 At the time of the appellant’s appointment to his position, individuals appointed to a permanent competitive-service position at the Department of Defense (DOD), such as the appellant, were subject to a 2-year probationary period and only qualified as “employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by the administrative judge, the appellant had not completed 2 years of service at the time of his termination. On December 27, 2021, President Biden signed into law the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period for DOD appointments made on or after December 31, 2022, and replaced it with a 1-year probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That2 Similarly, the SF -50 for the appellant’s April 2019 appointment states that the position is subject to a 2-year initial probationary period, but also states that the appellant will be changed from tenure group 2 to tenure group 1 after he completes a 1-year probationary period. IAF, Tab 4 at 14, Tab 9 at 8. However, the Board has long held that an SF-50 is not a legally operative document controlling on its face as to an employee’s status and rights. Stoute v. Department of the Navy , 98 M.S.P.R. 409, ¶ 13 (2005) (citing Grigsby v. Department of Commerce , 729 F.2d 772, 776 (Fed. Cir. 1984)). Thus, even though the record does not reflect that the agency issued a corrected SF-50 reflecting that the appellant had not completed his initial probationary period, the 2-year initial probationary period here was a statutory requirement under 10 U.S.C. § 1599e (repealed 2022), which the issuance of an erroneous SF-50 does not change. Id. The initial decision indicates that the administrative judge considered this evidence, and that he correctly found that, because the appellant was appointed after November 26, 2015, to a permanent position in the competitive service within the Department of Defense, and had not completed the 2-year initial probationary period required by 10 U.S.C. § 1599e (repealed 2022), he was not an employee with appeal rights under 5 U.S.C. chapter 75. IAF, Tab 17, Initial Decision (ID) at 2. It is undisputed that the agency appointed the appellant to a position in the competitive service on April 22, 2019, and terminated him less than 2 years later, on January 21, 2021. IAF, Tab 1 at 6-8. Moreover, that appointment was specifically made subject to a statutorily required 2-year initial probationary period beginning on April 22, 2019. Id. at 8; see 10 U.S.C. § 1599e (repealed 2022). As the administrative judge observed, the appellant did not allege that his termination was based on partisan political reasons or marital status. ID at 7. He also observed that the appellant did not allege that his termination was based on change does not affect the outcome of this appeal.3 reasons arising in whole or in part before his appointment, so the agency was not required to effect the appellant’s termination in accordance with the procedural requirements of 5 C.F.R. § 315.805. ID at 7-8. Thus, we agree with the administrative judge that the appellant identified no statutory or regulatory basis for jurisdiction over the 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.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Nelson_Brian_R_DE-315H-21-0119-I-1__Final_Order.pdf	2024-04-12	BRIAN R. NELSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-315H-21-0119-I-1, April 12, 2024	DE-315H-21-0119-I-1	NP
1,797	https://www.mspb.gov/decisions/nonprecedential/Miller_Terri_AT-0752-19-0371-I-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TERRI MILLER, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER AT-0752-19-0371-I-1 DATE: April 12, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Yasmin Assar , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant, a Supervisory Individual Tax Advisory Specialist with the Internal Revenue Service, has filed a petition for review of the initial decision, which sustained her removal pursuant to 5 U.S.C. chapter 75 for failure to timely pay her 2016 Federal income taxes. On petition for review, the appellant argues that (1) the agency failed to establish a nexus between her conduct and the efficiency of the service, and (2) her removal was outside the bounds 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). reasonableness. Petition for Review File, Tab 1 at 5-7. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Although not raised on review, in setting forth the legal standard applicable to this appeal, the administrative judge stated that the charge required the agency to prove the following elements: (1) the employee has incurred a debt; (2) the employee failed to pay the debt; (3) the failure to pay was without a good reason; and (4) the failure to pay had a deleterious effect on the employee’s performance or the ability of the agency to perform its mission. Initial Appeal File (IAF), Tab 18, Initial Decision (ID) at 2 (citing Monterosso v. Department of the Treasury, 6 M.S.P.R. 684 (1981)). In so stating, the administrative judge conflated the agency’s burden as to the charge alleged with its burden regarding both the nexus requirement and the reasonableness of the penalty. See Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir. 1997) (explaining that, to support an adverse action, the agency must prove three things: that the charged conduct occurred, that there is a nexus between the conduct and the efficiency of the service, and that the penalty imposed is reasonable). Here, to prove its2 charge, the agency needed to show only that the appellant failed to timely remit her 2016 Federal income tax liability. IAF, Tab 3 at 39; see Jenkins v. Department of the Treasury , 104 M.S.P.R. 345, ¶¶ 2, 10 (finding that the agency proved its charge of failure to timely file a Federal income tax return by showing that the appellant failed to submit a complete tax return by the date on which it was due), aff’d, 244 F. App’x 349 (Fed. Cir. 2007); see also Gibbs v. Department of the Treasury , 21 M.S.P.R. 646, 648-51 (1984) (analyzing the nexus requirement and the reasonableness of the agency -imposed penalty after concluding that the agency proved that the appellant had failed to timely pay his Federal income taxes). We find, however, that the administrative judge’s imprecision was immaterial because we agree with his reasoned conclusions that the agency met its burden regarding the charge alleged, nexus, and the penalty imposed.2 ID at 3-8; see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 This is the appellant’s fourth tax -related offense and her fifth financial offense. IAF, Tab 3 at 62-79. 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	Miller_Terri_AT-0752-19-0371-I-1__Final_Order.pdf	2024-04-12	TERRI MILLER v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0752-19-0371-I-1, April 12, 2024	AT-0752-19-0371-I-1	NP
1,798	https://www.mspb.gov/decisions/nonprecedential/Tomsen_LauraNY-0714-18-0016-I-1__Remand_Order (1).pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAURA TOMSEN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-0714-18-0016-I-1 DATE: April 12, 2024 THIS ORDER IS NONPRECEDENTIAL1 Laura Tomsen , Tonawanda, New York, pro se. Kevin B. Thiemann , Albany, New York, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed her removal from Federal service for patient abuse 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 New York Field Office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant was employed by the agency as a GS-5 Medical Support Assistant. Initial Appeal File (IAF), Tab 1 at 1. The agency proposed the appellant’s removal for one charge of patient abuse pursuant to 38 U.S.C. § 714. IAF, Tab 9 at 45-46. The deciding official found that the charge was supported by substantial evidence and sustained the appellant’s removal, effective October 20, 2017. Id. at 20-22. The appellant appealed her removal to the Board. IAF, Tab 1. She did not request a hearing and did not raise any affirmative defenses. Id. at 2, 5. In an initial decision based on the written record, the administrative judge found that the agency proved the charge of patient abuse by substantial evidence and he stated that, because the agency sustained the charge by substantial evidence, its chosen penalty of removal must be affirmed. IAF, Tab 19, Initial Decision (ID) at 5-8. The appellant has filed a petition for review and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 4. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant argues that the administrative judge did not consider all of the evidence she submitted. PFR File, Tab 1 at 5. The administrative judge’s failure to mention all of the evidence of record does not mean that he did not consider it in reaching his decision, and we find no basis to disturb the initial decision on this basis. 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 also argues that, after the record closed before the administrative judge, she learned that the deciding official was accused of negligence in his handling of another employee’s sexual harassment allegation, which she asserts “clouded his judgment” in the appellant’s case. PFR File, Tab 1 at 3-4. We find that the allegations against the deciding official, which were brought by a different employee and are unrelated to the charge brought against the appellant, do not warrant disturbing the findings in the initial2 decision. Further, on review, the appellant appears to assert for the first time, without support, that the veteran who made allegations against her, which formed the basis of the charge in this appeal, suffers from a mental health disorder. Id. at 5. The appellant has not established that her representations about the veteran’s mental health are based on new evidence that was unavailable despite her due diligence. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (providing 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); 5 C.F.R. § 1201.115(d). Moreover, these new allegations are not material to the outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). Notwithstanding, remand is required for a different reason. While this petition for review was pending, the U.S. Court of Appeals for the Federal Circuit (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 38 U.S.C. 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 charge was “supported by substantial evidence.” IAF, Tab 9 at 20. 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 they were therefore unable to address its impact on this appeal. Accordingly, we remand this case for adjudication of whether the agency’s apparent error in applying the substantial evidence standard of proof was harmful. Id., ¶¶ 23-24 (finding it appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714). 3 Additionally, 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 38 U.S.C. § 714. The court held that, although section 714 precludes the Board from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas factors” and that, although the Board cannot mitigate the penalty, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing 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 v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Here, the administrative judge did not review the agency’s penalty, finding that the penalty “must be affirmed” because the agency sustained its charge by substantial evidence. ID at 8 (emphasis omitted). 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 20-22. Thus, the record is unclear as to whether the agency properly considered the Douglas factors in making the decision to remove the appellant. The administrative judge and the parties did not have the benefit of Connor, and thus were unable to address its impact on this appeal. Therefore, remand is required for this issue as well. The administrative judge who decided this case is no longer with the Board and this case must be assigned to a new administrative judge on remand. The administrative judge should provide the parties with an opportunity to present4 evidence and argument addressing whether the deciding official’s use of the substantial evidence standard constituted harmful error and whether the agency properly considered the Douglas factors.2 The administrative judge should hold a supplemental hearing, if requested by the appellant, to address these two issues. To the extent it is appropriate, the administrative judge may adopt, in the remand initial decision, the original findings in the initial decision. However, if any of the evidence and argument developed on remand causes the administrative judge to disagree with the previous findings contained in the initial decision, he or she should explain that in the remand initial decision. ORDER For the reasons discussed above, we remand this case to the New York Field Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 2 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. See Connor, 8 F.4th at 1326; Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1376, 1379 (Fed. Cir. 2020) (identifying the Board’s scope of review of the penalty in an action taken under 38 U.S.C. § 714 as substantial evidence). If not, he should remand the appellant’s removal to the agency for a new decision on the appropriate penalty. Id. 5	Tomsen_LauraNY-0714-18-0016-I-1__Remand_Order (1).pdf	2024-04-12	LAURA TOMSEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0714-18-0016-I-1, April 12, 2024	NY-0714-18-0016-I-1	NP
1,799	https://www.mspb.gov/decisions/nonprecedential/Mitchell_Tammy_K_PH-1221-16-0139-W-5__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TAMMY K. MITCHELL, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-1221-16-0139-W-5 DATE: April 12, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tammy K. Mitchell , Mullens, West Virginia, pro se. Matthew A. Kelly , Esquire, Huntington, West Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in an 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). 2 or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. We AFFIRM the initial decision, except as expressly MODIFIED by this final order to clarify the administrative judge’s analysis of the absence of evidence as to whether two employees similarly situated to the appellant were whistleblowers. BACKGROUND The appellant was formerly employed as a Registered Nurse (RN) at the agency’s Beckley Veterans Affairs Medical Center (VAMC). Mitchell v. Department of Veterans Affairs , MSPB Docket No. PH-1221-16-0139-W-1, Initial Appeal File (IAF), Tab 1 at 12. In January 2009, the appellant became the Home Based Primary Care (HBPC) Program Director and served in that position until August 2012, when she began taking leave for medical reasons. Id.; Mitchell v. Department of Veterans Affairs , MSPB Docket No. PH-1221-16-0139- W-5, Appeal File (W-5 AF), Tab 45, Hearing Compact Disc (HCD) 2 (testimony of the appellant). She remained on leave until her termination from the agency. IAF, Tab 1 at 25; HCD 2 (testimony of the appellant). In August 2013, the appellant contacted the agency’s Office of Inspector General (OIG) regarding allegations of wrongdoing at the agency. Mitchell v. Department of Veterans Affairs , MSPB Docket No. PH-1221-16-0139-W-4, Appeal File (W-4 AF), Tab 11 at 117. On September 5, 2014, the appellant sent 3 letters to Senator Joe Manchin and Congressman Nick Rahall alleging that 11 agency employees had committed acts of wrongdoing. IAF, Tab 1 at 11-28; W-4 AF, Tab 11 at 71-88. On September 8, 2014, Senator Manchin forwarded the appellant’s letter to the agency’s OIG, and on September 11, 2014, Congressman Rahall also sent her letter to the agency’s OIG. IAF, Tab 1 at 10, W-4 AF, Tab 11 at 68-70. On October 29, 2015, the appellant sent letters to Senator Manchin, Congressman Evan Jenkins, and Senator Shelley Moore Capito, alleging that the agency’s OIG had failed to investigate her allegations of wrongdoing and asking them to forward her September 5, 2014 letter to the Office of Special Counsel (OSC). W -5 AF, Tab 46. On November 2, 2015, the agency terminated the appellant for failing to maintain an active, current, full, and unrestricted RN license. IAF, Tab 1 at 8-9, Tab 4 at 25-28. The appellant appealed her termination to the Acting Network Director of the agency’s Capitol Health Care Network, who sustained the decision to terminate her on December 2, 2015. IAF, Tab 1 at 7, Tab 4 at 20. On December 10, 2015, the appellant filed a complaint with OSC’s Disclosure Unit, which contained the same allegations of wrongdoing set forth in her September 5, 2014 letter, and on December 19, 2015, the appellant filed two complaints with OSC’s Complaints Examining Unit alleging that agency officials had retaliated against her for reporting wrongdoing.2 W-4 AF, Tab 11 at 91-170. On January 5, 2016, the appellant filed a Board appeal challenging her termination and requested a hearing. IAF, Tab 1. At the appellant’s request, the appeal was dismissed without prejudice for her to pursue her administrative remedies before OSC.3 IAF, Tabs 6-7; Mitchell v. Department of Veterans 2 After the filing of the appellant’s OSC complaints, OSC reorganized its components such that the functions previously performed by the Complaints Examining Unit are now performed by the Investigation and Prosecution Division. 3 It is undisputed that, as an RN appointed under 38 U.S.C. § 7401(1), the appellant does not have standing to appeal her termination directly to the Board. See Hawker v. Department of Veterans Affairs , 123 M.S.P.R. 62, ¶ 2 n.1 (2015) (observing that, as a physician appointed under 38 U.S.C. § 7401(1), the appellant could not directly appeal 4 Affairs, MSPB Docket No. PH-1221-16-0139-W-2, Appeal File (W-2 AF), Tabs 6-7. On November 18, 2016, OSC informed the appellant that it was closing its inquiry into her allegations and notified her of her right to seek corrective action from the Board. Mitchell v. Department of Veterans Affairs , MSPB Docket No. PH-1221-16-0139-W-3, Appeal File (W-3 AF), Tab 6 at 16 -17. On February 6, 2017, the appellant refiled her Board appeal.4 W-3 AF, Tab 1. In October 2018, the administrative judge issued a decision limiting the claims over which the Board had jurisdiction. W-4 AF, Tab 26. The administrative judge found that the appellant had proven that she exhausted her administrative remedies before OSC and made nonfrivolous allegations that she made six disclosures of wrongdoing protected under 5 U.S.C. § 2302(b)(8) to Beckley VAMC management in 2011 and 2012 and made several protected disclosures in the September 5, 2014 letter she submitted to OSC, the agency’s OIG, Congressman Rahall, and Senator Manchin. Id. at 5-8. The administrative judge also found that the appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) by making disclosures to OSC and the agency’s OIG. Id. at 7. According to the administrative judge, to the extent that the appellant argued that his termination to the Board). 4 The agency moved to dismiss the appellant’s refiled appeal as untimely filed under the statutory deadline to file an IRA appeal. W-3 AF, Tab 7 at 4-5. We agree with the administrative judge that, although the appellant did not timely refile her appeal under the Board’s regulations implementing the statutory deadline, because the appellant had already initiated an IRA appeal, the refiling deadline set forth under the initial administrative judge’s prior initial decision applied, and that the appellant timely refiled her appeal under that deadline. W-4 AF, Tab 26 at 1-3. We also find that tolling the statutory time limit to file an IRA appeal is warranted in this case. Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). Here, the appellant first attempted to refile her appeal on Monday, January 23, 2017, which was within the time period in which she could timely refile her appeal following OSC’s termination of its investigation. W-3 AF, Tab 1 at 11-17. On January 26, 2017, the Northeastern Regional Office rejected the appeal because it incorrectly named OSC as the appellant’s employing agency and provided the appellant with 10 days to refile her appeal. Id. at 8-10. On February 6, 2017, the appellant timely refiled her appeal. Id. at 1-7. Because the appellant filed a defective pleading within the statutory time period, we find that equitable tolling is warranted. 5 her alleged disclosures or activity were a contributing factor in an April 27, 2012 reprimand she received, the reprimand had been rescinded prior to the appellant filing her OSC complaint, and the issue was moot . Id. at 8-9. The administrative judge also found that the appellant did not make nonfrivolous allegations that her alleged disclosures in 2011 and 2012 were a contributing factor in her termination, but she nonfrivolously alleged that her disclosures to Congressman Rahall, Senator Manchin, the agency’s OIG, and OSC were a contributing factor in her termination. Id. at 9-13. Accordingly, the administrative judge found that the Board had jurisdiction over these last four claims. Id. at 13. After holding a 2-day hearing on the merits of the appellant’s claims, the administrative judge issued an initial decision denying the appellant’s request for corrective action. W-5 AF, Tab 51, Initial Decision (ID). The administrative judge incorporated his prior jurisdictional findings into his decision and found that the appellant was not alleging that her letters to Senator Capito and Congressman Jenkins contained protected disclosures. ID at 3-4, 6 n.8. The administrative judge then found that the appellant proved that her disclosures to the agency’s OIG and to OSC constituted protected activity under 5 U.S.C. § 2302(b)(9). ID at 5-7. The administrative judge also found that the appellant proved that her letters to Senator Manchin and Congressman Rahall contained protected disclosures under 5 U.S.C. § 2302(b)(8) regarding the misuse of a government vehicle, the use of a government vehicle while impaired, the practice of maintaining a secret waiting list, and the ordering of services for a patient without rendering or confirming the diagnosis that warranted the service. ID at 7-11. The administrative judge found that the appellant’s protected disclosures and activity occurred within 2 years of her termination. ID at 13. Next, the administrative judge found that the two Beckley VAMC agency officials involved in the decision to terminate the appellant, the former Director and the Nurse Executive, were not aware that the appellant had made disclosures to either 6 congressional members or OSC, and thus the appellant had not shown that those protected disclosures were a contributing factor in her termination. ID at 11-14. However, the administrative judge found that the Director was aware of the appellant’s 2012 disclosures regarding the HBPC program, which were similar to those under investigation by the agency’s OIG as a result of the appellant’s 2014 disclosures to the OIG, and that the appellant had made disclosures to the Nurse Executive that were the same as those under investigation by the OIG. ID at 14-15. Accordingly, the administrative judge found that it was more likely than not that the Nurse Executive was aware that the appellant was the source of the complaint that led to the OIG investigation, and that the Director at least suspected that the appellant was the source of the allegations that led to the OIG investigation. ID at 14-15. Additionally, the administrative judge found that, even if the Director was not aware that the appellant was the source of the disclosures to the agency’s OIG, because of the Nurse Executive’s involvement in the termination action, the Director could be deemed to have constructive knowledge of the appellant’s protected activity. ID at 16. Accordingly, the administrative judge found that the appellant had proven that her OIG complaint was a contributing factor in the agency’s decision to terminate her and had established her prima facie case of whistleblower reprisal. Id. Next, the administrative judge concluded that the agency proved by clear and convincing evidence that it would have terminated the appellant in the absence of her protected activity. ID at 16-27. The administrative judge found that the agency presented strong evidence in support of its termination decision. ID at 17-19. The administrative judge found that the Director and Nurse Executive had some motive to retaliate against the appellant, but that it was not strong. ID at 20-21. Finally, the administrative judge found that, although the agency did not terminate two RNs whose licenses had lapsed, this treatment merited little weight. ID at 21-26. He found that, in the summer of 2015, the Director received notice confirming that anyone without an active license must be 7 terminated, and on July 1, 2015, a nationwide email was sent to human resources staff reminding them of the proper procedures to follow when a provider’s license had lapsed, including mandatory removal for certain employees. ID at 24. He also found that, after the July 2015 email, all three individuals who were found to have allowed their RN license to lapse, including the appellant, were promptly removed from the agency. ID at 25-26. He found that the two individuals who were not terminated were not whistleblowers, and that no testimony reflected whether the other two individuals who were terminated were whistleblowers, so he assumed that they were not. ID at 24-26. Accordingly, he found that the disparate treatment of the two individuals prior to the July 2015 email should be afforded little weight, and that to the extent such treatment was significant, the disparate treatment was outweighed by evidence that the agency consistently treated employees situated similarly to the appellant the same after the July 2015 email. ID at 26. The administrative judge weighed the strength of the agency’s evidence in support of the appellant’s termination, the Director and Nurse Executive’s motive to retaliate against the appellant, and the agency’s treatment of those individuals similarly situated to the appellant, and found that the agency had proven by clear and convincing evidence that it would have terminated the appellant in the absence of her protected activity and denied her request for corrective action. ID at 26-27. The appellant has filed a petition for review challenging the initial decision. Mitchell v. Department of Veterans Affairs , MSPB Docket No. PH- 1221-16-0139-W-5, Petition for Review (PFR) File, Tab 2. The agency has filed an opposition to the petition, to which the appellant has filed a reply. PFR File, Tabs 4-5. As set forth below, we affirm the initial decision except as expressly MODIFIED by this final order to clarify the administrative judge’s analysis of the absence of evidence as to whether two employees similarly situated to the appellant were whistleblowers. 8 DISCUSSION OF ARGUMENTS ON REVIEW In order to establish a prima facie case of reprisal for whistleblowing under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must prove by preponderant evidence that: (1) she made a disclosure protected under 5 U.S.C. § 2302(b)(8) or engaged in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).5 5 U.S.C. § 1221(e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant makes out a prima facie case, then the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248, ¶ 6. The administrative judge correctly found that the appellant established a prima facie case of whistleblower reprisal. On review, the appellant challenges the testimony of the Director and Nurse Executive that they were not aware that she was the source of the disclosures investigated by the agency’s OIG. PFR File, Tab 2 at 4-7. In support of her argument, she states that she explicitly named both officials in the disclosures she sent to Senator Manchin and Congressman Rahall, which were forwarded to the agency’s OIG, and that she did not do so anonymously. Id. at 4-6. She also argues that the wrongdoing that she reported to Senator Manchin, Congressman Rahall, the agency’s OIG, and OSC was the same wrongdoing that she reported to the Nurse Executive. Id. at 5. The appellant also states that, although her equal employment opportunity (EEO) and Office of Workers’ Compensation Programs (OWCP) complaints are outside of the Board’s jurisdiction, she named both the Director and Nurse Executive in the complaints. 5 We have reviewed the relevant legislation modifying 5 U.S.C. § 2302 that was enacted during the pendency of this appeal and have concluded that it does not affect the outcome of the appeal. 9 Id. Next, she argues that the Director’s testimony was not credible because she met with the appellant and her attorney in March 2015. Id. Finally, the appellant argues that she did not provide more evidence to support all of her allegations because the agency’s OIG informed her that most of her evidence was “too old” and that they would not accept it. Id. The administrative judge found that, although the Director and Nurse Executive testified that they were not aware that the appellant had made the disclosures under investigation by the agency’s OIG, the Nurse Executive was aware that the appellant was the source of the disclosures due to the similarity of the disclosures to the appellant’s past disclosures to the Nurse Executive. ID at 11-15. The administrative judge also found that the Director had constructive knowledge of the disclosure because the Nurse Executive influenced the Director’s decision regarding the appellant’s termination. ID at 16. Accordingly, the administrative judge concluded that the appellant met her burden to show that her disclosures to the OIG were a contributing factor in her termination. Id. In raising issues regarding the Director and Nurse Executive’s knowledge of her disclosures, the appellant does not appear to challenge the administrative judge’s finding that she established a prima facie case of whistleblower reprisal, nor does the agency challenge this finding. Accordingly, we do not find the appellant’s arguments relevant to whether the administrative judge correctly found that she proved that her protected activity was a contributing factor in her termination and discern no reason to disturb the administrative judge’s well-reasoned findings in this regard. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings where she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). As set forth below, we have considered the appellant’s arguments to the extent they challenge 10 the administrative judge’s findings regarding the strength of the Director’s and Nurse Executive’s motive to retaliate against her. The administrative judge correctly found that the agency demonstrated that it had strong evidence in support of its termination of the appellant. In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of protected activity, the Board will consider the following factors: the strength of the agency’s evidence in support of its action, the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision, and any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). In assessing whether the agency has met its burden by clear and convincing evidence, the Board must consider all the pertinent evidence in the record, and it must not exclude or ignore countervailing evidence by only looking at the evidence that supports the agency’s position. See Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 15 (2013) (citing Whitmore v. Department of Labor , 680 F.3d 1353, 1367-70 (Fed. Cir. 2012)). On review, the appellant renews her argument that her RN license never expired; rather, she requested that she be placed in an inactive status, and she understood her license to be full and unrestricted. PFR File, Tab 2 at 7. The administrative judge acknowledged the appellant’s arguments but concluded that the appellant’s license was not active as of November 1, 2015, and that the appellant thus did not meet the qualification standards required for her position at the time of her termination. ID at 17-19. We agree that the agency’s evidence in 11 support of the appellant’s termination for failure to maintain an active, current, full, and unrestricted license as an RN was strong. In terminating the appellant, the agency alleged that, at midnight on October 31, 2015, her RN license expired. IAF, Tab 4 at 27-28. In support of its action, the agency provided a November 2, 2015 printout from the West Virginia Board of Examiners for Registered Professional Nurses website, which stated that the appellant’s license had expired on October 31, 2015, and its status was inactive. Id. at 30. The agency also provided a copy of a West Virginia statute that provides that an individual desiring to temporarily retire from practice may request to be placed on the inactive list, but that they may not practice in the state, and “[w]hen the person desires to resume active practice,” they must remit an application for renewal and payment. W-3 AF, Tab 7 at 50. The agency’s handbook dictates that, as a condition of employment, an RN must have a “current, full, active and unrestricted registration as a graduate professional nurse in a State[.]” IAF, Tab 4 at 37. Although the appellant has asserted that she understood from the West Virginia Board of Examiners that going into an inactive status still meant that her license was full and unrestricted, she has not provided any evidence that, under West Virginia law, an inactive license meets the requirements of a “current, full, active and unrestricted” license as required by agency policy, nor does the evidentiary record support this contention. See HCD 2 (testimony of the appellant). Accordingly, the administrative judge properly found that the agency’s evidence in support of its termination action was strong. The administrative judge properly found that, although the agency officials involved in the appellant’s termination had some motive to retaliate against her, the motive was not strong. On review, the appellant renews her arguments that the Nurse Executive and Director were motivated to retaliate against her. PFR File, Tab 2 at 8. As set forth above, we have also considered the appellant’s arguments that the Nurse Executive and Director were directly aware that she was the source of the 12 disclosures underlying the OIG’s investigation to the extent that their direct knowledge of her disclosures strengthens their motive to retaliate against her. Id. at 4-7. As discussed above, the administrative judge found that, although the Nurse Executive and Director testified that they were not aware that the appellant had made the disclosures under investigation by the agency’s OIG, it was more likely than not that the Nurse Executive was aware that the appellant was the source of the allegations underlying the OIG investigation preceding the appellant’s termination because, in 2012, the appellant made disclosures to the Nurse Executive that were the same as those under investigation. ID at 11-15. The administrative judge also found that the Director may have suspected that the appellant was the source of the allegations underlying the OIG investigation because she was aware of matters addressed in an earlier OIG report stemming from similar disclosures from the appellant. ID at 15. The administrative judge’s findings reflect that the Nurse Executive and Director could have deduced the appellant’s involvement in the agency’s OIG investigation from the similarity of her prior allegations to those under investigation by the OIG. While the Nurse Executive and Director could have deduced the appellant’s involvement in the OIG investigation, the administrative judge did not find, nor do the appellant’s arguments establish, that the Nurse Executive and Director learned through other channels that the appellant was the source of the disclosures underlying the OIG investigation. For example, although the appellant alleges that she was not anonymous in reporting to two members of Congress, who forwarded her complaints to the agency’s OIG, there is no evidence that the Nurse Executive or Director reviewed the appellant’s complaints or that the members of Congress or the OIG disclosed her name to the Nurse Executive or Director. PFR File, Tab 2 at 4-6. Thus, there is no evidence that the Nurse Executive and Director received clear and direct information that the appellant made a protected disclosure or engaged in protected activity in 2014. 13 The appellant also alleges that the Nurse Executive and Director were aware of her EEO and OWCP complaints, but the appellant has conceded that her EEO and OWCP complaints do not constitute protected activity under the WPEA. PFR File, Tab 2 at 5; see 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(ii) (excluding the exercise of any appeal, complaint, or grievance right other than with regard to remedying a violation of 5 U.S.C. § 2302(b)(8) from the Board’s jurisdiction under the WPEA); Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 18-21 (holding that title VII-related claims are excluded from protections under the whistleblower protection statutes); see also Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020) (stating that allegations of retaliation for exercising a title VII right do not fall within the scope of section 2302(b)(8)). Accordingly, whether the Nurse Executive and Director were named in the appellant’s EEO and OWCP complaints is not relevant to whether they were aware of her protected disclosures or activity under the WPEA. Similarly, the appellant refers to a March 2015 mediation between the appellant and the agency that the Director attended; however, there is no evidence that it pertained to her protected activity in this appeal. W-5 AF, Tab 16 at 18-19; PFR File, Tab 2 at 5. The appellant further argues that the Nurse Executive was aware of her 2012 disclosures. PFR File, Tab 2 at 5, 8. The administrative judge took this fact into account but concluded that the Nurse Executive’s motive to retaliate was not particularly strong. ID at 20-21. The administrative judge did not explicitly address whether the Nurse Executive’s testimony that she was unaware of the appellant’s disclosures to the agency’s OIG conflicted with his finding that it was more likely than not that, due to the similarity of the appellant’s disclosures to her in 2012, the Nurse Executive was aware that the appellant was the source of the allegations underlying the OIG investigation and thus rendered the Nurse Executive’s testimony less credible as to her motive to retaliate. However, a witness who is not credible about one matter may be credible about another 14 matter. Mitchell v. Department of the Air Force , 91 M.S.P.R. 201, ¶ 10 (2002). As discussed below, after an opportunity to observe the Nurse Executive’s demeanor, the administrative judge nevertheless found that her motive to retaliate against the appellant was not strong. The administrative judge considered that both the Nurse Executive and Director were named in the appellant’s disclosures to the OIG and that the appellant’s allegations would have reflected poorly on the Director and other Beckley VAMC managers. ID at 20. However, after an opportunity to assess both agency officials’ testimony, the administrative judge found that there was no evidence that either the Nurse Executive or Director expressed animus against the appellant. ID at 20-21. He found particularly credible the Director’s testimony that she would not retaliate against a whistleblower and supported mechanisms for employees to report issues to agency leadership. ID at 20-21. The Board defers to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline to defer to an administrative judge’s credibility findings that are abbreviated, based on improper considerations, or unsupported by the record, Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it will not overturn an administrative judge’s demeanor-based credibility findings merely because it disagrees with those findings, Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d at 1299). We find that the administrative judge’s demeanor-based credibility findings regarding the Director’s lack of a motive to retaliate are supported by the record and afford them deference. Similarly, we find no error in the administrative judge’s conclusion that the Nurse Executive had not expressed animus towards the appellant and that there was no evidence that she had a strong motive to retaliate against the appellant. ID at 20-21. 15 The appellant has not shown error in the weight the administrative judge afforded the agency’s treatment of two nurses whose licenses had lapsed prior to the appellant’s termination. On review, the appellant challenges the administrative judge’s finding that, while two nurses were not terminated for lapsed licenses, that evidence should be afforded little weight in assessing whether the agency would have terminated the appellant in the absence of her protected activity. ID at 21-26. She argues that there was no agency OIG report from the summer of 2015 discussing the licensing issue to substantiate agency officials’ representations that the OIG told them they needed to remove nurses without an active license. PFR File, Tab 2 at 9. She also alleges that the email the agency submitted in support of its reaffirmation of the policy was not presented in its entirety. Id. The record includes a complete copy of a July 1, 2015 email in which a human resources team leader informed the agency’s human resources staff nationwide that the agency’s OIG was going to conduct reviews of the methods used by medical centers to track licensure and actions taken when an employee does not have an active, full, and unrestricted license. IAF, Tab 4 at 32-33. The team leader also set forth the procedures to be followed if an employee failed to maintain at least one active, current, and unrestricted license if licensure is a condition of employment. Id. The appellant is correct that the agency did not submit any documentation from the OIG confirming that it investigated the issue in the summer of 2015; however, the Director testified that, in the summer of 2015, she received notification that the OIG was investigating nurse licensing and that removal of those without active licenses was mandatory; the July 1, 2015 email corroborates this testimony. IAF, Tab 4 at 32-33; W-5 AF, Tab 44, HCD 1 (testimony of the Director). The record supports the administrative judge’s finding that Beckley VAMC’s leadership adhered to agency policy after July 1, 2015, and that the 16 agency’s actions regarding lapsed licenses prior to that date should be afforded less weight than those after that date. ID at 25-26. The appellant also asserts that she was treated differently from other employees whose licenses were in danger of lapsing, as others were provided with reminders and a proposal to terminate them, but she was not. PFR File, Tab 2 at 7-8. She further argues that, because she was on medical leave, and her duties did not consist of seeing patients, she could have performed her duties with an inactive license, whereas those nurses who were not terminated for lapsed licenses had duties that included seeing patients. Id. at 9. The record reflects that one RN, B.W., received a telephone call regarding her lapsed license, as well as a December 2012 notice and an opportunity to respond to a proposal to issue her an admonishment, which was issued in January 2013. W-3 AF, Tab 27 at 23-26; HCD 1 (testimony of B.W). Additionally, another nurse, S.H., was called into a meeting in early November 2014 regarding her lapsed RN license, and she renewed it and was not disciplined. HCD 3 (testimony of S.H.). As discussed above, we find no error in the administrative judge’s decision to afford the agency’s disciplinary actions regarding lapsed licenses prior to July 2015, including those regarding B.W. and S.H., less weight than those that occurred after July 2015. ID at 25-26. The record otherwise reflects that the Dependent Credentialing Coordinator sent reminders to the work emails of nurses who had not yet renewed their licenses; the appellant has not asserted that reminders were not sent to her work email, and, as observed by the administrative judge, there is no evidence that the agency was obligated to notify her through alternative measures while she was on leave. HCD 1 (testimony of the Dependent Credentialing Coordinator), ID at 18-19. Finally, the appellant has set forth no evidence that her duties were relevant to the issue of whether she must be terminated for failure to maintain an active license, nor do we find any. See IAF, Tab 4 at 35-37. 17 The initial decision is modified to reflect that, in the absence of evidence that the two nurses terminated after the appellant’s termination were not whistleblowers, the third Carr factor cuts slightly against the agency. In analyzing the third Carr factor, the administrative judge stated that, in the absence of evidence that the two RNs terminated after the appellant’s termination for lapsed licenses had engaged in whistleblowing activity, he assumed that both nurses were non-whistleblowers. ID at 25-26. The administrative judge correctly observed that the record is devoid of evidence as to whether the two nurses terminated after the appellant were whistleblowers. Our reviewing court has held that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce such evidence if it exists “may be at the agency’s peril,” and may cause the agency to fail to meet its clear and convincing burden. Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016) (quoting Whitmore, 680 F.3d at 1374). Moreover, because it is the agency’s burden of proof, when the agency fails to fully develop the record with evidence that similarly situated non-whistleblowers are treated the same as whistleblowers like the appellant, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, in the absence of any evidence from the agency regarding the status of the two nurses terminated after the appellant’s termination, the administrative judge improperly assumed that they were not whistleblowers. ID at 25-26; cf. Miller, 842 F.3d at 1262 (stating that, in the absence of evidence that the agency’s treatment of the appellant is comparable to similarly situated employees who are not whistleblowers, “the court may not simply guess what might happen absent whistleblowing. The burden lies with the Government.”). Accordingly, the termination of these two nurses cannot be considered as evidence that the 18 agency treated similarly situated non-whistleblowers the same as whistleblowers like the appellant. As set forth above, we discern no error in the administrative judge’s determination that the agency’s failure to terminate two RNs who were not whistleblowers should be afforded less weight because the Beckley VAMC had inconsistently adhered to its policy prior to the July 2015 reaffirmation of the policy mandating removal of nurses with lapsed licenses, but the Beckley VAMC consistently adhered to the policy after July 2015 by promptly removing all nurses with a lapsed license. However, in the absence of any evidence that non-whistleblowers similarly situated to the appellant were terminated, we conclude that the absence of such evidence on the third Carr factor cuts “slightly against” the agency. Cf. Miller, 842 F.3d at 1262 (reaching the same conclusion where the agency produced evidence that there were no similarly situated non-whistleblowers under the allegedly retaliatory official, but did not present evidence as to agency practices more broadly). We have reweighed the Carr factors and nevertheless conclude that the strength of the agency’s evidence in support of removing the appellant, an RN who had allowed her license to become inactive, is strong against relatively weak evidence of an agency motive to retaliate and insubstantial evidence that non-whistleblowers were treated differently than the appellant. See Whitmore, 680 F.3d at 1368 (“Evidence 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.”). Accordingly, the agency proved by clear and convincing evidence that it would have terminated the appellant in the absence of her protected activity. The appellant has not shown that the administrative judge’s rulings regarding witnesses were prejudicial to her appeal. On review, the appellant argues that the agency omitted information when it provided her with a 2015 report of nurses with lapsed licenses because one 19 nurse, S.H., was not listed in the report. PFR File, Tab 2 at 7. She further argues that the agency deceived the administrative judge when it represented that S.H.’s Nurse Practitioner license had expired, rather than her RN license, and the administrative judge did not approve S.H. as one of the appellant’s witnesses until she submitted evidence that S.H.’s RN license had expired. Id. The record reflects that the administrative judge initially did not approve the appellant’s request to call S.H. as a witness because she was not similarly situated to the appellant, as she was not an RN who had a period without a license. W-5 AF, Tab 19 at 4-5. However, the appellant submitted a communication with S.H. in which S.H. stated that her RN license had lapsed. W-5 AF, Tab 21 at 12. The administrative judge subsequently approved S.H. as a witness for the appellant, and S.H. testified at the hearing. W-5 AF, Tab 24, Tab 49, HCD 3 (testimony of S.H.). The appellant does not identify how the delay in securing S.H. as a witness affected the outcome of this matter, nor do we find any evidence that the delay harmed the appellant. The appellant also argues that the administrative judge erred in preventing a second nurse, A.W., from testifying because the agency led the administrative judge to believe that A.W. was a Licensed Nurse Practitioner; once the appellant learned that A.W. was on the 2014 lapsed RN license list, it was too late to call her as a witness. PFR File, Tab 2 at 7. The administrative judge did not approve the appellant’s request to call A.W. as a witness because the appellant did not show that A.W.’s testimony was relevant to the issues in the appeal. W-5 AF, Tab 19 at 4. An administrative judge has wide discretion to exclude witnesses where it has not been shown that their testimony would be relevant, material, and nonrepetitious. Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 42 (2014). The record reflects that, approximately 20 months prior to the hearing, the agency provided records to the appellant showing that A.W. was terminated on November 4, 2014, for failure to maintain an active, current, full, and unrestricted license as an RN. W-3 AF, Tab 27 at 6, 18-20. Accordingly, the appellant has 20 not identified any misrepresentation on the part of the agency that affected the instant proceedings. Although the appellant has not identified why A.W.’s testimony was relevant, material, and nonrepetitious, the appellant’s prehearing submission reflects that she expected A.W. to testify that she received an opportunity to provide a response to her notice of termination. W-5 AF, Tab 16 at 10. The administrative judge did not identify the specific reason he denied the appellant’s request to call A.W. Although A.W.’s testimony could have been relevant to disparate treatment between the appellant and other RNs whose licenses lapsed, we find that her testimony would have been unlikely to change the outcome in this case. The administrative judge afforded adverse actions for lapsed licenses prior to July 2015 less weight because they occurred prior to a tightening of Beckley VAMC’s adherence to agency policy regarding lapsed licenses, and he would likely have afforded A.W.’s November 2014 termination similar weight. W-3 AF, Tab 27 at 18; ID at 25-26. Accordingly, any error in denying A.W. as a witness was not prejudicial to the appellant. 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). The appellant also asserts that the administrative judge denied her the opportunity to obtain an affidavit from the former Chief of Staff of Beckley VAMC. PFR File, Tab 2 at 9. The administrative judge approved the Chief of Staff as a witness for the appellant. W-5 AF, Tab 19 at 4. The appellant later filed a request to allow the Chief of Staff to submit an affidavit, as he had relocated and was unable to attend the hearing; the agency objected to this request. W-5 AF, Tab 31 at 3, Tab 32. The administrative judge denied the appellant’s request on the grounds that the submission of an affidavit would not allow for cross-examination of the witness, and the parties had not explored other means of presenting him as a witness that allowed for cross-examination. 21 W-5 AF, Tab 33. The administrative judge directed the appellant to make the Chief of Staff available to testify by telephone; otherwise, his statement would not be considered. W-5 AF, Tab 33 at 2, Tab 37 at 2. The appellant subsequently informed the administrative judge that the Chief of Staff had declined to testify. W-5 AF, Tab 39 at 3. It was not improper for the administrative judge to direct the appellant to secure the witness’ testimony by telephone prior to approving her request to provide an affidavit. However, the administrative judge incorrectly informed the appellant that, if the witness was not available by telephone, a statement from the witness would not be considered. It is well-settled that relevant hearsay is admissible in Board proceedings. Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83 (1981). An administrative judge is to assess the probative value of admitted hearsay evidence under the circumstances of each case, in accordance with the factors set forth in Borninkhof v. Department of Justice .6 Shannon, 121 M.S.P.R. 221, ¶ 15; Borninkhof, 5 M.S.P.R. at 87. Given that the administrative judge had approved the witness’ testimony as relevant to the instant proceedings, the administrative judge should have allowed the submission of an affidavit from the witness and considered its probative value. Even if the administrative judge’s ruling was in error, the appellant has not shown that the error was prejudicial. The appellant has not shown that the Chief of Staff was not available to testify; rather, her subsequent pleadings reflected 6 Under Borninkhof, the following factors affect the weight to be accorded hearsay evidence: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the party’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) the consistency of the declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements can otherwise be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of the declarant when he made the statement attributed to him. Borninkhof, 5 M.S.P.R. at 87. 22 that he ultimately declined to testify, and the appellant did not secure his testimony through a subpoena.7 W-5 AF, Tab 39 at 3. Consistent with the factors for assessing the probative value of hearsay evidence, the administrative judge likely would have afforded any affidavit less weight than live testimony. See Borninkhof, 5 M.S.P.R. at 87 (considering the availability of persons with firsthand knowledge to testify in assessing the weight to be given hearsay evidence). Additionally, the appellant provided little detail as to the Chief of Staff’s testimony and how it would have affected the outcome of her appeal. Her prehearing submissions reflected that she expected the Chief of Staff to testify regarding his meetings with the appellant and the Nurse Executive regarding the appellant’s protected disclosures; however, it is not necessary for us to consider the extent to which his testimony was necessary to establish that the appellant’s disclosures to the Nurse Executive occurred, as the administrative judge found that the appellant established a prima facie case of whistleblower reprisal. W-5 AF, Tab 16 at 8. The Chief of Staff’s testimony is unlikely to have substantially affected the weight the administrative judge afforded the second Carr factor, as his testimony would have pertained to the appellant’s disclosures in 2011 and 2012 and would not have established that the Nurse Executive or Director had direct knowledge of the appellant’s 2014 disclosures to the agency’s OIG. W-4 AF, Tab 20 at 9-30. Finally, the appellant has indicated that the Chief of Staff was terminated or transferred from the Beckley VAMC, but she has provided insufficient information as to the circumstances to consider whether that fact is relevant to the instant case. W-5 AF, Tab 16 at 8. Accordingly, the appellant has not shown that she was prejudiced by the administrative judge’s ruling. Panter, 22 M.S.P.R. at 282. As such, we affirm the initial decision denying the appellant’s request for corrective action except as modified herein. 7 The appellant has not explained why she did not seek a subpoena. 23 NOTICE OF APPEAL RIGHTS8 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 24 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any 25 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 26 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 27 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.	Mitchell_Tammy_K_PH-1221-16-0139-W-5__Final_Order.pdf	2024-04-12	TAMMY K. MITCHELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-16-0139-W-5, April 12, 2024	PH-1221-16-0139-W-5	NP

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