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1,900 | https://www.mspb.gov/decisions/nonprecedential/Robles_Martha_L_NY-844E-22-0010-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTHA L. ROBLES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-844E-22-0010-I-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
James D. Muirhead , Esquire, Hackensack, New Jersey, for the appellant.
Shaquita Stockes and Heather Dowie , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for disability retirement under the Federal
Employees’ Retirement System (FERS). For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and REMAND the case to the field office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a Constituent Services Representative
for the U.S. House of Representatives until she was removed effective
August 31, 2019. Initial Appeal File (IAF), Tab 4 at 18, 133. She applied
for disability retirement at some point between January and February 2020.
Id. at 128-32. In her statement of disability, the appellant asserted that
she suffered from “severe stress, vasovagal syncope, depression, anxiety, panic
disorder, asthma, [a] peptic ulcer, and high blood pressure.” Id. at 81. On
July 23, 2020, OPM issued an initial decision denying the appellant’s application
for FERS disability retirement benefits after finding that she did not meet all the
criteria for disability retirement. Id. at 63-67. The appellant requested
reconsideration of the initial decision. Id. at 46-47. On October 6, 2021,
OPM issued a reconsideration decision sustaining its initial decision. Id. at 6-9.
The appellant filed an appeal with the Board challenging OPM’s final
decision and requesting a hearing. IAF, Tab 1 at 2, 8. Following a telephonic
hearing, the administrative judge issued an initial decision affirming OPM’s
reconsideration decision. IAF, Tab 14, Tab 18, Initial Decision (ID) at 1, 6.
The administrative judge found that the appellant failed to prove her entitlement
to disability retirement benefits by preponderant evidence. ID at 6. She reasoned
that “[the appellant] was treated for multiple conditions.. . .[but] [i]t was not
an inability to carry out the functions of [the Constituent Services Representative]
position that led to her removal.” Id.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response.2
DISCUSSION OF ARGUMENTS ON REVIEW
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6
(2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement
annuity under FERS, an appellant must establish the following elements:
(1) she completed at least 18 months of creditable civilian service; (2) while
employed in a position subject to FERS, she became disabled because of a
medical condition, resulting in a deficiency in performance, conduct, or
attendance, or, if there is no such deficiency, the disabling medical condition is
incompatible with either useful and efficient service or retention in the position;
(3) the disabling condition is expected to continue for at least 1 year from the
date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) she did not decline a reasonable offer of reassignment to
a vacant position. Christopherson, 119 M.S.P.R. 635, ¶ 6; 5 C.F.R. § 844.103(a).
The Board has found that job-related stress resulting in physical and mental
ailments that prevent an employee from performing the duties necessary in her
job can warrant the granting of disability retirement. Smith v. Office of Personnel
Management, 100 M.S.P.R. 500, ¶ 5 (2005). An applicant may demonstrate
eligibility for disability retirement under FERS in one of two ways: (1) by
showing that the medical condition caused a deficiency in performance,
attendance, or conduct; or (2) by showing that the medical condition is
incompatible with useful and efficient service or retention in the position.
Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶ 16 (2012);
see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also Jackson v. Office
of Personnel Management , 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the standard
is the same under both the Civil Service Retirement System and FERS).
Under the first method, an individual can establish entitlement by showing that3
the medical condition affects her ability to perform specific work requirements,
prevents her from being regular in attendance, or causes her to act
inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the second method,
an individual can establish entitlement by showing that the medical condition is
inconsistent with working in general, in a particular line of work, or in a
particular type of setting. Id. In determining an appellant’s entitlement to
disability retirement, the Board considers all pertinent evidence, including
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence showing the effect of her condition on her
ability to perform the duties of her position. Id., ¶ 19. The ultimate question,
based on all relevant evidence, is whether the appellant’s medical impairments
preclude her from rendering useful and efficient service in her position. Id., ¶ 20.
On review, the appellant contends that the administrative judge failed to
consider her testimony and relevant subjective evidence that she became disabled
for her job as a Constituent Services Representative. PFR File, Tab 1 at 7-9.
We agree. In the initial decision, the administrative judge summarized some of
the relevant evidence and testimony and concluded that the appellant failed to
meet her burden of proof. ID at 3-5. However, the administrative judge failed to
provide any analysis of the evidence and testimony in support of her conclusion.
See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)
(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). Therefore, remand is appropriate.
Although not raised on review, the official record of the March 22, 2022
telephonic hearing has been lost due to a technical error and cannot be recovered.
PFR File, Tab 3. The Board has found that, when the verbatim hearing record
omits material evidence necessary to adjudicate an appeal, the evidence must be
taken again. Walker v. Office of Personnel Management , 52 M.S.P.R. 101, 1044
(1991). According to the appellant, “[she] testified at length about the problems
she was having at work,” including that she had multiple fainting episodes,
vertigo episodes, and visits to the hospital. PFR File, Tab 1 at 7. Without the
recording, the appellant’s argument that the administrative judge’s determination
failed to consider her testimony and subjective evidence is essentially
unreviewable. Thus, because the record contains material omissions of evidence
necessary for the just adjudication of the appeal, it must be remanded for
rehearing and a new initial decision. See Smith, 100 M.S.P.R. 500, ¶ 6; see also
Walker, 52 M.S.P.R. 101, 104.
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.5 | Robles_Martha_L_NY-844E-22-0010-I-1__Remand_Order.pdf | 2024-04-03 | MARTHA L. ROBLES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-22-0010-I-1, April 3, 2024 | NY-844E-22-0010-I-1 | NP |
1,901 | https://www.mspb.gov/decisions/nonprecedential/Brady_Katherine_C_DA-0752-21-0151-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHERINE C. BRADY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-21-0151-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
awrence Berger , Esquire, Glen Cove, New York, for the appellant.
Dana L. Vockley , Esquire, and Margaret Slowen , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action based on the charge of failure to meet a
condition of employment. On petition for review, the appellant argues that the
administrative judge erred in his analysis of the charge and his conclusion that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
she did not prove disability discrimination based on a failure to accommodate.2
Petition for Review File, Tab 1 at 11-18. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify that the appellant did not prove her affirmative defenses of
disability discrimination based on a failure to accommodate or disparate treatment
because we agree with the administrative judge that she did not show that she is
an individual with a disability, we AFFIRM the initial decision.3
2 The appellant does not challenge the administrative judge’s findings that the agency
established a nexus and that the penalty of removal is reasonable. Petition for Review
File, Tab 1. We have reviewed the record and discern no basis to disturb these
well-reasoned findings. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions on issues of credibility).
3 We agree with the administrative judge that the appellant did not prove disability
discrimination based on a failure to accommodate or disparate treatment. Initial Appeal
File, Tab 35, Initial Decision (ID) at 10-16. However, we modify the initial decision to
specifically clarify that the appellant did not prove either of her affirmative defenses
because, as the administrative judge correctly found, she did not show that she is an
individual with a disability. ID at 10-13; see Haas v. Department of Homeland
Security, 2022 MSPB 36 , ¶¶ 28-29 (clarifying that, in order to prevail on a claim of
disability discrimination under either a status-based or reasonable accommodation
theory, an appellant must show at a minimum that she is a qualified individual with a
disability). 2
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.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Brady_Katherine_C_DA-0752-21-0151-I-1_Final_Order.pdf | 2024-04-02 | KATHERINE C. BRADY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-21-0151-I-1, April 2, 2024 | DA-0752-21-0151-I-1 | NP |
1,902 | https://www.mspb.gov/decisions/nonprecedential/Arroyo_RafaelCB-7121-21-0018-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAFAEL ARROYO,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CB-7121-21-0018-V-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
uzanne Pillari , Esquire, Syracuse, New York, for the appellant.
Fergus Kaiser , 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 an arbitration decision that
mitigated his removal to a time-served suspension. For the reasons set forth
below, we DISMISS the request for review 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
Effective October 11, 2018, the agency removed the appellant from his
position as a Claims Specialist based on the charges of conduct unbecoming of a
Federal employee and absence without official leave. Request for Review (RFR)
File, Tab 1 at 34-42. The appellant’s union filed a grievance on his behalf, which
the agency denied, and the union invoked arbitration. Id. at 43-52. On June 22,
2021, the arbitrator issued an award finding that the agency did not have just
cause to remove the appellant and ordering the agency to reinstate the appellant,
with the time between his removal and reinstatement to be considered a
disciplinary suspension with no back pay. Id. at 71-79.
On July 22, 2021, the appellant filed the instant request for review of the
arbitrator’s award. Id. at 1-15. The appellant asserts, among other things, that
the Board has jurisdiction to review the arbitration decision because he alleged
reprisal and because he raised issues under Article 18 of his collective bargaining
agreement (CBA), entitled “Equal Employment Opportunity,” on his “Standard
Grievance Form,” “during testimony,” and “in the Union’s requested findings in
the associated Post-Hearing Brief.” Id. at 9-11, 43-45, 53-70, 80-89. The agency
has filed a response asserting, among other things, that the Board lacks
jurisdiction over this matter because the appellant failed to raise allegations of
discrimination before the arbitrator and has not even identified the type of
discrimination he is claiming, and because his claim of reprisal is not covered.
RFR File, Tab 4 at 6-10.
ANALYSIS
As explained in our acknowledgement order, the appellant has the burden
of proving by preponderant evidence that the Board has jurisdiction over his
request for review. RFR File, Tab 2 at 3; see 5 C.F.R. § 1201.56(b)(2)(i)(A). As
we further explained, the Board has jurisdiction over a request for review of an
arbitration decision if (1) the subject matter of the grievance is one over which2
the Board has jurisdiction; (2) the appellant either (i) raised a claim of
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with
the underlying action, or (ii) raises a claim of discrimination in connection with
the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the
Board if such allegations could not be raised in the negotiated grievance
procedure; and (3) a final decision has been issued. RFR File, Tab 2 at 2; see
Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x
972 (Fed. Cir. 2014); see 5 C.F.R. § 1201.155(a)(1), (c).
Here, we find that conditions (1)2 and (3) are satisfied. RFR File, Tab 1
at 44, 73-79. However, we conclude that the appellant failed to meet his burden
as to condition (2). As noted above, the appellant alleges that he raised a claim of
discrimination before the arbitrator by raising Article 18 of the CBA on his
“Standard Grievance Form,” during testimony, and in his post-hearing brief. Id.
at 10, 43-45, 53-70. But the appellant’s reliance on his grievance form to the
agency, which simply cites Article 18, is misplaced. Id. at 44. To satisfy
condition (2), it was incumbent upon the appellant to prove that he raised
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator. See Jones,
120 M.S.P.R. 480, ¶ 8; see also Scanlin v. Social Security Administration,
2022 MSPB 10, ¶ 5 (finding unavailing the appellant’s assertion that she had
raised a claim of disability discrimination in her grievance with the agency
because the jurisdictionally dispositive issue was whether she had raised
discrimination with the arbitrator).
Although the appellant also claims that Article 18 was “addressed
extensively during testimony,” he has not submitted any testimony with his
request for review, and the record does not contain any such evidence. RFR File,
Tab 1 at 10. With respect to his post-hearing brief to the arbitrator, the appellant
only alleges he “raised issues under the [CBA] at Article 18 (Equal Employment
2 The appellant’s removal, which was the subject matter of the grievance, is an action
appealable to the Board under chapter 75 of Title 5 of the United States Code. 5 U.S.C.
§§ 7512(1), 7513(d).3
Opportunity) . . . in the Union’s requested findings in the associated Post-Hearing
Brief.” Id. The appellant provided the Board with a copy of his post-hearing
brief, and, in the brief, he simply requested that the arbitrator find that the agency
failed to show that its removal decision “was issued with just cause and within
contractual parameters given violations of Article 3, Sections 1, 2(A); Article 23;
Article 31, Section 5; and Article 18.” Id. at 55. The appellant did not elaborate
on the relevancy of Article 18, raise any sort of issue of discrimination relative to
a violation of Article 18, or even discuss discrimination in any other way. We do
not find that, at most, a mere allusion to discrimination via Article 18 shows that
the appellant raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with
the arbitrator, as required. See Scanlin, 2022 MSPB 10, ¶ 6 (finding that the
generic posing of the question, “was the removal discriminatory,” without more,
was insufficient to prove that the appellant raised a claim of discrimination under
5 U.S.C. § 2302(b)(1) with the arbitrator).
With respect to the appellant’s brief assertion that he also raised issues of
reprisal in this case, we note that in the appellant’s post-hearing brief, he also
stated “[i]f it is determined that the [a]gency acted in a discriminatory manner
and in retaliation against the [g]rievant for his Union role, the arbitrator is asked
to consider and award compensatory damages as appropriate pursuant to the
applicable EEOC retaliation provisions.” RFR File, Tab 1 at 10, 56. However, a
claim that the agency discriminated and/or retaliated against the appellant based
on his union activity does not fall under the purview of 5 U.S.C. § 2302(b)(1).
See 5 U.S.C. § 2302(b)(1)(A)-(E). Thus, the appellant’s arguments are
unavailing.
We note that the appellant also provided the Board with a copy of the
arbitrator’s decision, which states at the outset that “[t]he sole issue [in the case]
is the standard issue in such matters: Was the removal for just cause?” and “If
not, what shall be the remedy.” RFR File, Tab 1 at 74 (internal quotations4
omitted). The arbitrator’s decision does not address or even mention
discrimination under 5 U.S.C. § 2302(b)(1) in any substantive way.3
Accordingly, we find that the appellant has failed to meet his jurisdictional
burden of proving that he raised a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) with the arbitrator in connection with the underlying action.
Because the appellant could have raised a claim of discrimination before the
arbitrator but has not proven that he did so, the Board lacks jurisdiction over his
request for review.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 During the arbitrator’s discussion of the charge of conduct unbecoming of a Federal
employee, which concerns the agency’s allegation that the appellant yelled at a
supervisor, the arbitrator discussed an ensuing shouting match and noted: “Certainly it
was loud, probably infused with vulgarities, but without racial/religious/ethnic/sexual
insults.” RFR File, Tab 1 at 75. This appears to simply be a description of the incident,
as there is no other indication that the appellant argued, or the arbitrator considered, the
issue of discrimination with respect to this charge.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Arroyo_RafaelCB-7121-21-0018-V-1_Final_Order.pdf | 2024-04-02 | RAFAEL ARROYO v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CB-7121-21-0018-V-1, April 2, 2024 | CB-7121-21-0018-V-1 | NP |
1,903 | https://www.mspb.gov/decisions/nonprecedential/Anderson_Tonya_M_CH-3443-22-0360-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA M. ANDERSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-3443-22-0360-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tonya M. Anderson , Cleveland, Ohio, pro se.
Lori L. Markle , 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 for lack of jurisdiction the appeal of her removal because she was an
employee of the U.S. Postal Service who was nonpreference eligible, and not in a
position that was managerial, supervisory, or engaged in personnel work in other
than a purely nonconfidential clerical capacity, a status that she does not dispute.
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.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 The appellant filed her initial appeal more than 22 years after her removal. Because
the appeal is being decided on jurisdictional grounds, we need not address the
timeliness issue on review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Anderson_Tonya_M_CH-3443-22-0360-I-1__Final_Order.pdf | 2024-04-02 | TONYA M. ANDERSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-22-0360-I-1, April 2, 2024 | CH-3443-22-0360-I-1 | NP |
1,904 | https://www.mspb.gov/decisions/nonprecedential/Britton_Robert_L_AT-831M-21-0233-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT L. BRITTON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
MARIA L. BRITTON,
IntervenorDOCKET NUMBER
AT-831M-21-0233-I-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
R
obert L. Britton , Lady Lake, Florida, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of the reconsideration decision issued by the Office of
Personnel Management (OPM) as settled. For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
GRANT the 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 a former Federal employee who retired on January 3,
1995, under the Civil Service Retirement System (CSRS). Initial Appeal File
(IAF), Tab 13 at 12, Tab 1 at 2. After his retirement, the appellant and his wife
divorced. IAF, Tab 13 at 100-12. The Final Dissolution of Marriage, entered on
May 12, 2015, provided that the appellant would continue to fund a survivor
annuity through a deduction of his monthly annuity with his former wife as the
beneficiary. Id. at 100, 104-05. However, an amended order was entered on
July 5, 2015, in which the former wife agreed to terminate her right to survivor
benefits in exchange for monthly payments of $258.00 from the appellant.2 Id.
at 113, 117, 119. Accordingly, in July 2015, the appellant requested OPM
terminate the survivor benefits, and as a result he began receiving an unreduced
annuity. Id. at 15. He also started paying his former spouse $258.00 per month.
Id. at 10-11.
On February 27, 2019, OPM issued an amended determination letter to the
appellant, notifying him that it had erroneously terminated the survivor benefits
and that it would be reducing his annuity and withholding money to recover the
overpayment. Id. at 15. The appellant requested reconsideration and OPM
responded, explaining that, per regulations, it should not have honored the
amended court order because it was not the first order dividing marital property
for the retiree and his spouse. Id. at 10-13. Thus, because it should not have
terminated the survivor benefit, the appellant had been improperly receiving an
unreduced annuity resulting in an overpayment. Id. at 14. While OPM confirmed
2 The divorce decree also awarded the appellant’s former spouse 50% of the appellant’s
CSRS plan accrued from December 28, 1990, to January 3, 1995, i.e., the date of their
marriage to the date of the appellant’s retirement. 2
the overpayment issue, it rescinded the initial decision because the overpayment
calculation was incorrect. Id. On January 10, 2021, OPM issued an amended
award letter, stating that it overpaid the appellant a total of $12,736.00 for the
period between June 1, 2015, and July 30, 2020, and that it would be collecting
the amount over 254 monthly installments of $50.00, with a final withholding of
$36.00. Id. at 5.
The appellant filed a Board appeal challenging OPM’s January 10, 2021
decision.3 IAF, Tab 1. While the case was pending in front of the administrative
judge, the agency filed a settlement agreement signed by both parties. IAF,
Tab 16 at 4. Per the agreement, in exchange for OPM allowing the appellant to
pay a total of $12,736.00 in 254 monthly installments of $50.00, with a final
installment of $36.00, the appellant agreed to withdraw his appeal and waive his
right to request either a full or partial waiver of overpayment. Id. The
administrative judge approved the settlement and entered it into the record,
dismissing the appeal as settled. IAF, Tab 17, Initial Decision (ID) at 1-2.
The appellant filed a petition for review arguing that OPM’s decision failed
to comply with the court order and that OPM had failed to identify the
overpayment for 4 years or respond to his requests for information. Petition for
Review (PFR) File, Tab 1 at 2-3. OPM responded in opposition, and the
appellant replied, disputing the legitimacy of the settlement agreement and stating
that he only signed the settlement agreement because OPM’s representative
threatened to invoke a “devastating penalty” against him if he did not sign the
agreement and return it within 3 days. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
A settlement agreement is a contract, and the enforcement and
interpretation of its terms is a question of contract law. Greco v. Department of
the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). Under the law of contracts, an
3 The January 10, 2021 amended award letter notified the appellant of his right to
appeal the decision to the Board. IAF, Tab 13 at 6.3
enforceable contract does not exist unless it is based on a bargained-for exchange
known as “consideration.” Pappas v. Office of Personnel Management ,
76 M.S.P.R. 152, 158 (1997), aff’d, 155 F.3d 565 (Fed. Cir. 1998). Consideration
under the law of contracts, however, is not measured in dollars and cents alone.
Id. A very small consideration can support an enforceable contract; convenience,
avoidance of troublesome details and efforts, and forbearance to institute
proceedings against the other party, for example, can be proper elements of
consideration. Id.
In this appeal, the parties’ settlement agreement is not an enforceable
contract because there was no consideration given to the appellant. The terms of
the settlement agreement are the exact terms contained within OPM’s January 10,
2021 amended award letter, i.e., an overpayment totaling $12,736.00, to be paid
in 254 monthly installments of $50.00 with a final installment of $36.00.
Compare IAF, Tab 16 at 4, with Tab 13 at 5. The appellant derives nothing of
value from the settlement, but agreed to withdraw his Board appeal and forego his
right to a waiver of the overpayment or an adjustment to the collection schedule.
IAF, Tab 16 at 4.
Because this settlement agreement is unsupported by consideration, it is
unenforceable. Therefore, we order the settlement agreement to be set aside, and
the parties to be restored to the status quo ante, releasing them from their duties
under the agreement and returning them to the conditions prevailing at the time of
the appeal.4 Brady v. Department of the Navy , 95 M.S.P.R. 619, ¶ 11 (2004).
4 During the processing of the appeal, the administrative judge determined that the
appellant’s former spouse had a right to be involved in the case, and issued an order
notifying her of her right to intervene in the litigation. IAF, Tab 10 at 1-2. The order
was sent to the former spouse via mail, but was returned to the Board as undeliverable.
IAF, Tab 11. While the appellant offered to contact his former wife and provide her
with the order, there is nothing in the record confirming he notified her, nor is there any
pleading filed by the former wife indicating her interest in intervening. IAF, Tab 12
at 1. On remand, the administrative judge should direct both parties to provide their
last known address for the former spouse, as well as any other addresses where she
could be contacted, and should serve an appropriate order on her.4
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 | Britton_Robert_L_AT-831M-21-0233-I-1_Remand_Order.pdf | 2024-04-02 | ROBERT L. BRITTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-831M-21-0233-I-1, April 2, 2024 | AT-831M-21-0233-I-1 | NP |
1,905 | https://www.mspb.gov/decisions/nonprecedential/Brenner_LawrenceNY-0714-19-0007-M-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE BRENNER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0714-19-0007-M-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Aaron L. Robison , Esquire, Sacramento, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The agency has filed a petition for review, and the appellant has filed a
cross petition for review of the initial decision, which reversed the appellant’s
removal. For the reasons discussed below, we GRANT the agency’s petition for
review, VACATE the initial decision, DENY the appellant’s cross petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, and REMAND the case to the New York Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed as an Attorney-Advisor with the Department
of Veterans Affairs’ (DVA) Office of General Counsel. Brenner v. Department of
Veterans Affairs , MSPB Docket No. NY-0714-19-0007-I-1, Initial Appeal File
(IAF), Tab 10 at 23. On September 28, 2018, the agency removed him based on
three charges of unacceptable performance in the critical elements of his position:
(1) unacceptable performance in the critical element of timeliness for the rating
period of October 1, 2016, to September 30, 2017; (2) unacceptable performance
in the critical element of professional responsibility and accountability for the
rating period of October 1, 2016, to September 30, 2017; and (3) unacceptable
performance in the critical element of timeliness for the rating period that began
October 1, 2017.2 Id. at 23-28. The decision notice indicated that the removal
action was being taken under the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No.
115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714).
Id. at 24.
Thereafter, the appellant filed an appeal with the Board challenging the
removal and raising, among other things, the affirmative defenses of
discrimination based on disability and age, reprisal for filing a prohibited
personnel practice complaint and whistleblower reprisal complaint with the
Office of Special Counsel, and harmful procedural error. IAF, Tab 1. After
holding the appellant’s requested hearing, id. at 2, the administrative judge issued
an initial decision affirming the removal action, IAF, Tab 41. In doing so, she
concluded that the agency proved all its charges by substantial evidence, as
required by 38 U.S.C. § 714(d)(2)(A). Id. at 6-26. Stating that the Board lacks
2 Charge 3 covered the period from October 1, 2017, until the agency proposed the
appellant’s removal on March 26, 2018. IAF, Tab 10 at 26, 240.2
the authority to mitigate the agency’s penalty selection, id. at 7 (citing 38 U.S.C.
§ 714(d)(2)-(3)), the administrative judge did not consider the reasonableness of
the penalty of removal, but, based on her finding that the agency proved all its
charges, she affirmed the removal action, id. at 26. Additionally, she found that
the appellant failed to prove any of his affirmative defenses. Id. at 26-48.
After that initial decision became final, the appellant appealed the decision
to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). Before the
Federal Circuit, he argued that (1) the Board erred in concluding that it was
prohibited from reviewing the reasonableness of the penalty; and (2) the DVA
and the Board improperly applied the VA Accountability Act, which became
effective on June 23, 2017, to actions that occurred prior to that date, dating back
to October 1, 2016. See Brenner v. Department of Veterans Affairs , 990 F.3d
1313, 1322 (Fed. Cir. 2021). On March 9, 2021, the Federal Circuit issued an
opinion, vacating the initial decision and remanding the appeal to the
administrative judge. Id. at 1330. Regarding the first issue, the court referenced
its prior decision in Sayers v. Department of Veterans Affairs , 954 F.3d 1370
(Fed. Cir. 2020), wherein it found that review of the penalty must be included in
the Board’s review of an agency action under section 714. Brenner, 990 F.3d
at 1323-27 (citing Sayers, 954 F.3d at 1375-79). Accordingly, in the instant
matter, the court found that the administrative judge erred when she concluded
that the Board lacked authority to review the agency’s penalty selection. Id.
Regarding the second issue, the court found that the administrative judge erred in
applying the VA Accountability Act retroactively to conduct that occurred prior
to the statute’s effective date, and, therefore, further found that her affirmance of
the removal action was not in accordance with the law. Id. at 1327-28, 1330. As
a result, the court remanded the matter to the Board with instructions to consider
whether the removal action, including the penalty, is supported by substantial3
evidence based on the evidence that postdates the VA Accountability Act.3
Id. at 1330.
Following the remand, but prior to the issuance of the remand initial
decision, the Federal Circuit decided Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290 (Fed. Cir. 2021), wherein it found that the DVA erred when
it applied the substantial evidence burden of proof to its internal review of a
disciplinary action under 38 U.S.C. § 714. Id. at 1296-1301. The same day it
decided Rodriguez, the Federal Circuit also decided Connor v. Department of
Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021), wherein it found that the DVA
and the Board must still apply the Douglas4 factors to the selection and review of
penalties in DVA disciplinary actions taken under 38 U.S.C. § 714.
Id. at 1326-27. Recognizing that these cases affected the adjudication of the
appellant’s removal appeal, the administrative judge issued an order informing
the parties of the Federal Circuit’s decisions in Rodriguez and Connor and
reframing the issues on remand to comport with the court’s Brenner remand
opinion, Rodriguez, and Connor. Brenner v. Department of Veterans Affairs ,
MSPB Docket No. NY-0714-19-0007-M-1, Remand Appeal File (RAF), Tab 16.
In doing so, the administrative judge framed the issues to be decided on remand
as follows: (1) whether the agency proved by preponderant evidence its three
charges based on the evidence of record that postdates the VA Accountability
Act; (2) whether the agency considered the Douglas factors in determining the
appropriate penalty; and (3) whether the penalty of removal is supported by
preponderant evidence, in accordance with Sayers.5 Id. at 4.
3 The Federal Circuit also explained that, if the agency wished to rely on evidence of
record that predated the VA Accountability Act, it must proceed with an action under
chapters 75 or 43. Brenner, 990 F.3d at 1330.
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
5 The administrative judge also considered as an issue on remand whether the agency
proved charges one and three by preponderant evidence, in light of the deciding4
With its close of record submission, the agency submitted declarations
made under penalty of perjury from the proposing and deciding officials.
RAF, Tab 20 at 22-27, 29-34. In the deciding official’s declaration, he stated that
the appellant’s performance after the effective date of the VA Accountability Act
still “satisfied the charges of unacceptable performance in the critical element of
timeliness and warranted removal.” Id. at 23. He further stated that the
“evidence file” supports the unsuccessful performance that occurred after
June 23, 2017, as cited in all three charges “by a preponderance of the evidence.”
Id. at 25. Finally, he stated that, while he did not complete a “formulaic Douglas
factor analysis on paper” in this matter, he did consider the relevant Douglas
factors at the time he made his decision. Id. at 26. In the proposing official’s
declaration, she also asserted that the evidence file supports the charges of
unsuccessful performance on conduct that occurred after June 23, 2017, by a
preponderance of the evidence and that she considered the relevant Douglas
factors at the time she proposed the appellant’s removal. Id. at 32-34.
Without taking additional testimony, RAF, Tab 14 at 1, the administrative
judge issued an initial decision on the written remand record, RAF, Tab 23,
Remand Initial Decision (RID). In discussing the Federal Circuit’s decision in
Rodriguez, she reasoned that, although the Board’s standard of review is
“substantial evidence,” the DVA was required to prove its charges and chosen
penalty by “preponderant evidence.” RID at 9-13. In applying this standard of
proof to the charges, the administrative judge considered the proposing and
deciding officials’ declarations asserting that the evidentiary record on the
appellant’s performance issues postdating June 23, 2017, supported the charges of
unacceptable performance by a preponderance of the evidence, but she found that
official’s admission that the proposing official applied an incorrect standard regarding
the timeliness of the appellant’s work when discussing his performance under the
critical element concerning timeliness. RAF, Tab 16 at 4. Because this is related to the
issue of whether the agency proved the charges by preponderant evidence, we do not
address this issue separately. 5
this “post-hoc justification” did not overcome the actual language used in the
proposing and decision letters or testimony at the hearing that the charges were
supported by substantial evidence. RID at 7-8. Thus, she found that the agency
failed to prove the charges by preponderant evidence. RID at 6-8.
Assuming, alternatively, that the agency had met its burden with respect to
the charges, the administrative judge then discussed whether it met its burden
regarding the reasonableness of the penalty of removal. RID at 9. In her
analysis, the administrative judge reiterated that Connor requires the DVA to
consider the Douglas factors. RID at 9. Although she considered the deciding
official’s declaration asserting that he did consider these factors, the
administrative judge found the declaration “unworthy of belief” in light of his
prior testimony that he did not consider the Douglas factors because they “are not
applicable under our current procedure.” Id.; Hearing Compact Disc (HCD)
(testimony of the deciding official). Accordingly, she found that the agency
failed to prove that the penalty of removal was supported by preponderant
evidence. RID at 9. Based on the foregoing, the administrative judge found that
the removal was not in accordance with the law, and she reversed the removal
action. RID at 1, 4-5, 13-14. Although the administrative judge determined that
the appellant was the prevailing party, she did not order interim relief. RID at 15
(citing 38 U.S.C. § 714(d)(7)).
The agency has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. Therein, it argues that neither of the
administrative judge’s conclusions that the agency failed to prove its charges by
preponderant evidence or to consider the Douglas factors renders the removal
decision “not in accordance with the law” and that the administrative judge
should have applied the “harmful error” analysis. Id. at 7, 12-15. It also argues
that the administrative judge erred in finding that the deciding official did not
consider the relevant Douglas factors and in failing to provide the deciding
official with an opportunity to determine whether the evidence supported the6
charges by preponderant evidence. Id. at 15-17. Finally, the agency argues that
the administrative judge erred in requiring it to prove before the Board its charges
and the reasonableness of the penalty by preponderant evidence, rather than by
substantial evidence. Id. at 17-18. The appellant has filed a response to the
agency’s petition for review and has filed a cross petition for review.6 PFR File,
Tab 3. In his cross petition for review, the appellant argues that the
administrative judge erred in not ordering interim relief, pursuant to 5 U.S.C.
§ 7701(b)(2)(A). Id. at 29. The agency has replied to the appellant’s response to
its petition for review, and it has responded in opposition to his cross petition for
review.7 PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s cross petition for review is denied.
As stated above, the appellant has filed a cross petition for review, arguing
that the administrative judge erred in not ordering interim relief despite the fact
that she determined that the appellant was the prevailing party in this matter.
PFR File, Tab 3 at 29; RID at 15. We discern no error in the administrative
judge’s decision not to order interim relief. Title 38, United States Code, Section
714(d)(7) provides that, in a removal action taken under § 714, an appellant who
files a Board appeal “may not receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special payments, or benefits
6 The appellant has not challenged the administrative judge’s original findings that he
failed to establish any of his affirmative defenses. PFR File, Tab 3. We discern no
basis to disturb those findings here.
7 The appellant has also filed a motion for leave to file a reply to the agency’s response
to his cross petition for review. PFR File, Tab 8. The Office of the Clerk of the Board
acknowledged the appellant’s motion but explained that the Board’s regulations do not
provide for pleadings other than a petition for review, a cross petition for review, a
response to the petition for review or cross petition for review, and a reply to a response
to a petition for review. PFR File, Tab 9 (citing 5 C.F.R. § 1201.114(a)(5)). It
informed the appellant that the Board would decide to grant or deny his request. Id.
at 1. We have reviewed the appellant’s motion for leave to file a reply to the agency’s
response but are not persuaded by his argument regarding the need for the additional
submission. 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion is denied.7
related to the employment of the individual by the Department [of Veterans
Affairs]” after his or her removal by the agency until “the United States Court of
Appeals for the Federal Circuit issues a final decision on such appeal.” The
Board has construed this language to preclude an award of interim relief in an
appeal brought pursuant to 38 U.S.C. § 714. See Schmitt v. Department of
Veterans Affairs , 2022 MSPB 40, ¶¶ 11-16. Although the appellant argues that
38 U.S.C. § 714(d)(7) “is not applicable to this situation” and asserts that the
interim relief provisions set forth in 5 U.S.C. § 7701(b)(2) should govern,
PFR File, Tab 3 at 29, the Board has found that, despite the conflicting nature of
those two provisions, 38 U.S.C. § 714(d)(7) controls and precludes an award of
interim relief, see Schmitt, 2022 MSPB 40, ¶¶ 11-16. Accordingly, the
appellant’s cross petition for review is denied.
The agency’s application of the substantial evidence standard of proof to its
internal deliberation of the charges is subject to the harmful error standard.
In the agency’s decision notice removing the appellant, the deciding
official concluded that the agency’s charges were supported by substantial
evidence. IAF, Tab 10 at 24-26. As explained above, the administrative judge
informed the parties of the Federal Circuit’s decision in Rodriguez, which found
that the preponderant evidence is the proper standard for the DVA to apply in
determining whether an employee has engaged in misconduct that justifies
discipline.8 RAF, Tab 16; see Rodriguez, 8 F.4th 1297-1301. Although the
deciding official submitted a declaration stating that the “unsuccessful
performance that occurred after June 23, 2017” is supported by a preponderance
of the evidence, RAF, Tab 20 at 23, the administrative judge gave greater weight
to the “statutorily required decision letter,” which relied on “substantial
8 We address later in this Remand Order the administrative judge’s apparent confusion
in requiring the agency to also prove before the Board its charges by preponderant
evidence. Our discussion here is limited to the burden of proof applied by the agency
during its internal disciplinary proceedings, which the administrative judge
appropriately determined to be in error. 8
evidence,”9 CID at 6-8. She, therefore, found that the agency’s application of the
incorrect standard of proof rendered the removal action “not in accordance with
the law.” RID at 6-8, 13-14.
In the agency’s petition for review, it argues that a failure to apply the
correct standard of proof does not render a decision “not in accordance with law”
and that the administrative judge should have analyzed the error under a harmful
procedural error framework. PFR File, Tab 1 at 7, 12-13. We agree. In
Semenov v. Department of Veterans Affairs , 2023 MSPB 16, the Board held that,
because the Board adjudicates an action taken under the VA Accountability Act
under 5 U.S.C. § 7701(b)(1), see 38 U.S.C. § 714(c)(4)(A), (d)(1), actions taken
under 38 U.S.C. § 714 are subject to the harmful error test from 5 U.S.C.
§ 7701(c)(2), Semenov, 2023 MSPB 16, ¶ 23. As such, the proper inquiry here is
whether the agency’s error in applying the incorrect standard of proof was likely
to have caused the agency to reach a different conclusion from the one it would
have reached in the absence or cure of the error. See id. (citing Ronso v.
Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r)).
Accordingly, we vacate the initial decision and remand this appeal for the
administrative judge to consider whether the agency committed harmful error.
The agency must prove its charges by substantial evidence before the Board.
If, upon remand, the administrative judge determines that the agency’s
error in applying the incorrect standard of proof to its internal proceedings was
not harmful, the subsequent analysis is whether the agency met its burden of
9 We find nothing inconsistent between the deciding official’s statement in the decision
notice that the charges are supported by substantial evidence and his later statement in a
declaration that the charges are supported by preponderant evidence. IAF, Tab 10 at 24;
RAF, Tab 20 at 23-25. A determination that the charges are supported by preponderant
evidence necessarily includes an implicit acknowledgment that the charges are also
supported by substantial evidence. See 5 C.F.R. § 1201.4(p), (q) (explaining that
substantial evidence is a “lower standard of proof than preponderance of the evidence”).
Thus, we discern no reason to disregard the deciding official’s subsequent statement
that the charges are supported by preponderant evidence based solely on the fact that he
made a prior determination under a lower standard of proof.9
proof with respect to the charges before the Board. As noted above, in the
remand initial decision, the administrative judge interpreted Rodriguez to suggest
that, while “the Board’s standard of review is ‘substantial evidence,’ . . . the
[D]VA was required to prove its charges [] by ‘preponderant evidence.’” RID
at 13. Because, as previously explained, the administrative judge did not give
weight to the deciding official’s declaration explaining that he determined the
charges to be supported by preponderant evidence, she found that the agency
failed to meet its burden of proof before the Board. RID at 6-8.
Although not directly argued by the agency on review, we find the
administrative judge’s interpretation of Rodriguez to be in error. In that case, the
Federal Circuit clarified that “the DVA is not required to prove its case before the
Board by a preponderance of the evidence, as is the case for employee
disciplinary actions brought under chapter 75 of Title 5” and that “on any appeal
to the Merit Systems Protection Board, the administrative judge and the Board
will review the [] action under the ‘substantial evidence’ standard.” 8 F.4th
at 1297. Thus, the agency was required to prove its charges before the Board by
“substantial evidence.”
We acknowledge that, in the original initial decision in this matter, the
administrative judge found that the agency proved its charges by “substantial
evidence.”10 IAF, Tab 41 at 8-26. On review before the Federal Circuit,
however, the court concluded that the agency erroneously included in its charges
against the appellant performance-related matters that predated the effective date
of the VA Accountability Act. Brenner, 990 F.3d 1327-30. Therefore, on
remand, if the administrative judge determines that the agency’s error in applying
the incorrect standard of proof to its internal review of the removal action was not
harmful, then she must consider whether the agency proved by substantial
evidence its three charges of unacceptable performance based only on evidence of
10 Notably, in the Brenner opinion, the Federal Circuit did not disturb the administrative
judge’s application of the “substantial evidence” standard of proof. 990 F.3d at 1321. 10
record that postdates the June 23, 2017 effective date of the VA Accountability
Act. In analyzing an unacceptable performance charge brought under 38 U.S.C.
§ 714, the administrative judge should consider whether the agency’s
performance standards are reasonable and provide for an accurate measurement of
the appellant’s performance, and whether the appellant’s performance was
unacceptable according to that measurement. Semenov, 2023 MSPB 16, ¶ 19.
If applicable, the administrative judge should consider whether the agency proved
that the penalty of removal is supported by substantial evidence.
When determining whether the agency’s decision to remove the appellant
under the VA Accountability Act is supported by substantial evidence, the Board
must also consider the agency’s penalty choice as part of that review. Sayers,
954 F.3d at 1376; see Brenner, 990 F.3d at 1323-24. As previously explained, in
Connor, the Federal Circuit held that the DVA and the Board “must continue to
apply the relevant Douglas factors in considering the reasonableness of the
penalty in [D]VA disciplinary action cases.” 8 F.4th at 1326. Accordingly, the
administrative judge considered the penalty in the remand initial decision.
RID at 9. As stated above, she found that the deciding official’s declaration
claiming that he considered the Douglas factors was “unworthy of belief” in light
of the fact that he had previously testified that he did not consider the Douglas
factors because they were not applicable under the “current procedure.” Id.; HCD
(testimony of the deciding official). Thus, she concluded that the agency failed to
prove that the penalty of removal was supported by preponderant evidence,
thereby rendering the removal action “not in accordance with the law.” RID at 9,
13-14.
On review, the agency argues that, although the deciding official did not
formally call it a Douglas factor analysis, he nonetheless considered the factors
relevant to a proper penalty determination and concluded that the penalty of
removal is “appropriate and warranted,” as indicated in his declaration. PFR File,
Tab 1 at 16-17; RAF, Tab 20 at 25-27. It further argues that, even if the agency11
failed to prove that it considered the Douglas factors, the proper result is a lack of
deference to the deciding official—not a determination that the action was “not in
accordance with law.” PFR File, Tab 1 at 14-16.
Looking at the deciding official’s declaration, we do not find it obvious on
its face that the statements made therein contradict his prior testimony. In his
testimony, he stated that he did not consider the Douglas factors because the
agency believed they were not applicable to the current adverse action procedure;
however, in his declaration, he stated that consideration of the factors is
“generally reflected in [his] written decision” and in his hearing testimony.
RAF, Tab 20 at 26. For example, during the hearing, he testified that
he considered, among other things: (1) the appellant’s job and grade level;
(2) whether a lesser penalty would have been more appropriate than removal;
(3) whether the appellant lost the trust and confidence of his supervisor that he
would perform satisfactorily; (4) whether the appellant showed potential for
rehabilitation; and (5) any mitigating factors such as the appellant’s workload.
HCD (testimony of the deciding official). In the decision notice, the deciding
official stated that the deficiencies related to the timeliness critical element were
“egregious” and “significant in terms of the Office of General Counsel’s ability to
provide timely advice to its clients in support of the Department’s mission of
service to Veterans.” IAF, Tab 10 at 26. He also stated that the appellant’s
deficiencies “undermine [his] supervisor’s ability to effectively manage the office
and undermine [her] trust that [he] will bring mistakes to her attention.” Id.
Although the deciding official recognized that the appellant had “provided many
years of satisfactory service to the agency,” he nonetheless determined that
“removal is appropriate and the only suitable option.” Id. at 27. Thus, although
the deciding official may not have completed a Douglas factor worksheet or some
formal analysis similar thereto, he asserts that he nonetheless considered the
substance of the factors, and we believe the record supports that assertion. HCD
(testimony of the deciding official); RAF, Tab 20 at 26-27. 12
Moreover, contrary to the administrative judge’s assertion in the remand
initial decision that the agency’s choice of penalty must be supported by
preponderant evidence, RID at 9-13, we reiterate that the agency must prove that
the penalty is supported by “substantial evidence,” see Sayers, 954 F.3d at 1376;
Brenner, 990 F.3d at 1323. Accordingly, on remand, if applicable, the
administrative judge should consider whether the penalty of removal is supported
by substantial evidence based on the sustained conduct that postdates the VA
Accountability Act.
ORDER
For the reasons discussed above, we remand this case to New York Field
Office for further adjudication in accordance with this Remand Order. As
outlined above, the administrative judge shall first address whether the agency’s
error in applying the substantial evidence standard of proof to its original action
was harmful. See 5 U.S.C. § 7701(a)(1), (b)(1); Semenov, 2023 MSPB 16, ¶ 24.
If the administrative judge determines that the agency’s error was not harmful,
she should then consider whether the agency proved its charges by substantial
evidence based only on evidence that postdates the June 23, 2018 effective date
of the VA Accountability Act, and, if so, whether the penalty of removal is
supported by substantial evidence and in accordance with Connor.
In conducting this adjudication, the administrative judge shall hold a
supplemental hearing but may limit the subject matter to issues deemed relevant
on remand. She shall then issue a remand initial decision discussing these issues.
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 the13
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests).11
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
11 To the extent any of the evidence or argument taken on remand affects the
administrative judge’s prior discussion of the appellant’s affirmative defenses, her
remand initial decision should reflect that analysis. 14 | Brenner_LawrenceNY-0714-19-0007-M-1 Remand Order.pdf | 2024-04-02 | LAWRENCE BRENNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0714-19-0007-M-1, April 2, 2024 | NY-0714-19-0007-M-1 | NP |
1,906 | https://www.mspb.gov/decisions/nonprecedential/Cintron_Nancy_AT-0752-17-0078-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY CINTRON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-17-0078-I-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ed Passman , Esquire, and Kevin L. Owen , Esquire, Silver Spring,
Maryland, for the appellant.
Nicole Davis , Esquire, Washington, D.C., for the appellant.
Melissa Martinez , Esquire, and John Schettler Chamblee , Esquire,
Peachtree City, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. For the reasons discussed below, we
GRANT the appellant’s petition for review; AFFIRM the administrative judge’s
findings regarding the agency’s charges and the appellant’s claim of national
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
origin discrimination; MODIFY the initial decision to find that the appellant did
not establish harmful procedural error; VACATE the administrative judge’s
findings on nexus, the penalty, and the appellant’s claims of retaliation for equal
employment opportunity (EEO) and union activities; and REMAND the case to
the regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a second grade teacher at Brittin Elementary School, an
elementary school for children of military members and certain civilian
employees. Initial Appeal File (IAF), Tab 8 at 7, 73. By letter dated
January 28, 2016, the agency notified the appellant that her performance under
Critical Element 1 of her performance plan was unacceptable and that she was
being placed on a 60-day performance improvement plan (PIP). IAF, Tab 13 at
69-80. In May 2016, the appellant’s performance under Critical Element 1 for
school year 2015-2016 was rated “Unacceptable.” Id. at 12. On July 27, 2016,
the agency proposed her removal under chapter 75 of title 5 of the United States
Code based on the following four charges: (1) unacceptable performance;
(2) failure to properly supervise students; (3) failure to follow posted lesson plan;
and (4) inappropriate interactions with students. IAF, Tab 8 at 35-51. Charge 1
was based on the appellant’s alleged unacceptable performance under Critical
Element 1 of her performance plan. Id. at 35-47. The deciding official sustained
the proposed removal effective September 30, 2016. Id. at 69-71. The appellant
subsequently filed an appeal in which she alleged, inter alia, that the agency
committed harmful procedural error, discriminated against her on the basis of her
national origin, and retaliated against her for her protected EEO and union
activities. IAF, Tab 1 at 7.
After holding a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. IAF, Tab 37, Initial Decision (ID). The
administrative judge found that the agency proved each of its four charges by
3
preponderant evidence. ID at 4-36. The administrative judge then considered the
appellant’s affirmative defenses and found that she failed to establish that her
removal was the product of discrimination based on national origin or retaliation
for having been involved in EEO and union activities. ID at 36-38. In addition,
the administrative judge found that the agency established the nexus requirement
and that the penalty of removal was reasonable under the circumstances. ID
at 38-40.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response to the appellant’s petition. PFR
File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant alleges that the administrative judge applied the
incorrect standard for determining if the agency retaliated against her for her
union activity. PFR File, Tab 3 at 6-11. In addition, the appellant contends that,
regardless of whether the administrative judge applied the correct standard to this
claim, the administrative judge erred in failing to address record and testimonial
evidence relating to this allegation.2 Id. at 11-23. The appellant also asserts that
the administrative judge failed to properly adjudicate her affirmative defense of
reprisal for protected EEO activity. Id. at 23-25. In addition, the appellant
alleges that the administrative judge failed to make sufficient findings regarding
her allegation of harmful procedural error. Id. at 25-29. As set forth below, we
find that a remand is necessary for further adjudication of the appellant’s
retaliation claims.
The agency met its burden of proving its charges.
As previously noted, under Charge 1, the agency charged the appellant with
unacceptable performance. IAF, Tab 8 at 35. The administrative judge found
that the agency proved all five specifications that were sustained by the deciding
2 Because we agree that the administrative judge applied the incorrect standard to the
appellant’s claim of reprisal for union activity, we need not address this argument.
4
official under this charge.3 ID at 4-28; IAF, Tab 8 at 35-47, 69. Under each
specification, the agency charged the appellant with failing to meet a different
performance “substandard” under Critical Element 1 of her performance
standards. IAF, Tab 8 at 35-47. On review, the appellant offers no basis for
revisiting the administrative judge’s well-founded conclusions concerning this
charge. Because the record reflects that the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions, we affirm the administrative judge’s findings regarding Charge 1.
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings where she considered the
evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
Similarly, the administrative judge found that the agency proved Charge 2
—failure to properly supervise students—which had one underlying specification.
ID at 28-29; IAF, Tab 8 at 47. Under the specification, the agency charged the
appellant with leaving her students unattended in her classroom while she was
speaking to another teacher in the hallway. IAF, Tab 8 at 47. We discern no
basis for disturbing the administrative judge’s determination that the agency
established this specification—and thus the charge—through
documentary evidence and live testimony. See Crosby, 74 M.S.P.R. at 105-06;
Broughton, 33 M.S.P.R. at 359.
As for Charge 3, failure to follow the appellant’s posted lesson plan, the
administrative judge found that the agency established two specifications
3 The agency initially charged the appellant with six instances of misconduct under
Charge 1. IAF, Tab 8 at 35-47. Specifically, under Specification 2, the agency charged
the appellant with failing to meet Critical Element 1, Substandard (c) of her
performance plan. Id. at 36-38. Under a separate specification also listed as
Specification 2, the agency charged the appellant with unacceptable performance under
Critical Element 1, Substandard (d) of her performance plan. Id. at 38-39. The
deciding official did not sustain the second Specification 2; thus, the administrative
judge properly did not consider that specification. Id. at 69; ID at 4.
5
underlying the charge. ID at 30-31. Under this charge, the agency charged the
appellant with failing, on six different dates, to follow a scheduled time for a
specific classroom activity. IAF, Tab 8 at 47-49. The administrative judge found
that the deciding official only sustained two of the specifications and that the
agency proved these specifications by preponderant evidence. ID at 30-31.
Again, the appellant has provided nothing on review that would require us to
revisit the administrative judge’s findings that the agency proved these two
specifications, and accordingly, the charge.4
Finally, the administrative judge also found that the agency proved Charge
4, inappropriate interactions with students. ID at 32-36. Under the specifications
in support of the charge, the agency charged the appellant with making negative
comments to students that, in certain instances, allegedly embarrassed students.
IAF, Tab 8 at 49-50. The administrative judge found that the agency established
two out of the three specifications listed in support of the charge and, thus, that it
proved its charge. ID at 32-36; see Burroughs v. Department of the Army ,
918 F.2d 170, 172 (Fed. Cir. 1990) (holding that “proof of one or more, but not
all, of the supporting specifications is sufficient to sustain the charge”). The
administrative judge’s finding that the agency proved Charge 4 was based in part
on credibility determinations. ID at 35-36. The Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
4 The administrative judge found, based on the deciding official’s testimony, that the
deciding official sustained only two of the specifications underlying Charge 3 because
the others concerned math. ID at 29 -30. However, the decision letter states that all six
specifications under Charge 3 were sustained by the deciding official. IAF, Tab 8 at 69.
The deciding official did note in the decision letter that observations relating to math
were not considered in deciding the penalty. Id. at 70. To the extent the administrative
judge erred by not considering the other four specifications underlying the charge, any
such error did not prejudice the appellant’s substantive rights . Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is
not prejudicial to a party's substantive rights provides no basis for reversal of an initial
decision). Specifically, because “proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge,” Charge 3 can nonetheless be sustained
based on the specifications that the administrative judge did consider and uphold.
See Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990).
6
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not provided a basis for
disturbing the administrative judge’s credibility determinations or other findings
regarding the two sustained specifications under Charge 4.
Accordingly, we affirm the administrative judge’s finding that the agency
established its four charges.
The appellant has not established harmful procedural error.
As previously noted, the appellant alleges on review that the administrative
judge failed to adequately address her allegation of harmful procedural error.
PFR File, Tab 3 at 25-26. The appellant asserts that the agency violated the
applicable collective bargaining agreement (CBA) by failing to give her a
reasonable opportunity to improve her performance prior to her removal.5 Id.
at 25.
The administrative judge recognized that the appellant raised this
affirmative defense in an order and summary of prehearing conference. IAF,
Tab 31 at 8. The administrative judge properly advised the parties in the order
that, to establish harmful procedural error, the appellant must establish that the
procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id.; Doe v. Department of Justice , 123 M.S.P.R. 90, ¶ 7 (2015).
The administrative judge, however, does not appear to have analyzed this
allegation as a harmful error claim in the initial decision. Rather, the
administrative judge appears to have considered it in analyzing whether the
5 The applicable CBA states that, “[i]n those instances where improvement is necessary,
the [a]gency shall provide assistance to improve unacceptable performance prior to
proposing any performance-based action.” IAF, Tab 8 at 21. The CBA requires, among
other things, that the agency provide the employee with “a reasonable opportunity to
improve performance.” Id.
7
agency established its charge of unacceptable performance. ID at 27. The
administrative judge considered the appellant’s arguments that the principal of
Brittin Elementary School, who supervised the appellant during her PIP, only
criticized her, never told her how to improve, and was disruptive during the
classroom. ID at 27. After carefully considering the record, the administrative
judge found these assertions to be unsupported. Id. Among other things, the
administrative judge noted that the principal tried to help the appellant improve
her performance by giving her written notes from her observations and meeting
with her to discuss them. Id. The administrative judge also noted that the
principal arranged for specialists from the school to work with the appellant and
provide her with additional training. Id.
We therefore find that the administrative judge addressed the appellant’s
allegation that the agency did not provide her with a reasonable opportunity to
improve, and we discern no reason for disturbing the administrative judge’s
findings on this issue. To the extent the administrative judge erred in considering
this issue in analyzing Charge 1 rather than as an allegation of harmful procedural
error, any such error did not prejudice the appellant’s substantive rights because
the administrative judge apprised the appellant on how to establish such an
affirmative defense and the appellant failed to meet her burden of proof on this
claim. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party's substantive
rights provides no basis for reversal of an initial decision). Because the
administrative judge did not explicitly consider this allegation under the
analytical framework that is applicable to harmful procedural error claims, we
modify the initial decision to find that the appellant failed to establish any such
claim of harmful procedural error.
8
Remand is necessary for adjudication of the appellant’s allegation of reprisal for
having engaged in union activity.
The administrative judge applied a general reprisal standard in the initial
decision when analyzing the appellant’s allegation that the agency retaliated
against her for her protected union activity.6 ID at 37-38. However, such a
standard is inapplicable to claims, like the one here, that allege reprisal for
participation in union-related activities under 5 U.S.C. § 2302(b)(9)(B).
See Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 9-11 (2015). Section
2302(b)(9)(B) makes it unlawful for an individual to take, fail to take, or threaten
to take or fail to take a personnel action because of the employee “testifying for
or otherwise lawfully assisting any individual in the exercise of any right referred
to in [5 U.S.C. § 2302(b)(9)(A)] (i) or (ii).” Performing union-related duties are
protected activities under section 2302(b)(9). Alarid, 122 M.S.P.R. 600, ¶ 10.
Under such circumstances, this reprisal claim should be analyzed under the
burden-shifting standards set forth in section 1221(e). Id., ¶ 12.
We therefore vacate the administrative judge’s findings regarding the
appellant’s allegation of reprisal for union activity. Upon remand, the
administrative judge should apprise the appellant of her burden of proof on this
claim, afford the parties an opportunity to conduct discovery on the issue, and
hold a supplemental hearing if requested. The administrative judge must first
determine whether the appellant established that she engaged in such protected
activity, then consider whether that activity was a contributing factor in the
removal at issue in this appeal. Id., ¶ 13. If the appellant establishes those
factors by preponderant evidence, then the administrative judge must consider
whether the agency met its burden by clear and convincing evidence that it would
have taken the same action in the absence of the appellant’s protected activity.
Id., ¶ 14.
6 The administrative judge also provided the appellant with the incorrect standard on
this claim, and on the appellant’s allegation of reprisal for prior EEO activity, in an
order and summary of prehearing conference. IAF, Tab 31 at 8.
9
The administrative judge applied the incorrect standard to the appellant’s
allegation of retaliation for protected EEO activity.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudication of discrimination claims and claims of retaliation for
protected EEO activity. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 21-25, 30. Under Pridgen, the appellant bears the initial
burden of proving by preponderant that the prohibited consideration was a
motivating factor in the agency's action. Id., ¶¶ 21, 30. Here, in considering the
appellant’s allegation of reprisal for protected EEO activity, the administrative
judge applied a general reprisal standard. ID at 37. The use of this standard was
in error. See id., ¶ 32. 7
Thus, we vacate the administrative judge’s findings on the appellant’s
allegation of reprisal for protected EEO activity. On remand, the administrative
judge should instruct the parties of the standards of proof applicable to a claim of
EEO reprisal and provide them with an opportunity to further develop the
evidence on this issue. The administrative judge’s new decision should
incorporate the correct standard for analyzing the appellant’s allegation of
reprisal for EEO activity. In the new initial decision, if the appellant fails to
prove her affirmative defenses of reprisal for EEO and union activities, than the
administrative judge may adopt her original findings regarding nexus and the
penalty. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 11 (2016).
7 Regarding the appellant’s affirmative defense of national origin discrimination, the
administrative judge considered the evidence as a whole in finding that the appellant
failed to show that discrimination was a motivating factor in her removal. Because we
discern no error with the administrative judge’s motivating factor analysis or
conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to
address whether discrimination or retaliation was a but-for cause of the removal action.
See Pridgen, 2022 MSPB 31, ¶¶ 20-25.
10
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. | Cintron_Nancy_AT-0752-17-0078-I-1__Remand_Order.pdf | 2024-04-02 | NANCY CINTRON v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-17-0078-I-1, April 2, 2024 | AT-0752-17-0078-I-1 | NP |
1,907 | https://www.mspb.gov/decisions/nonprecedential/Carballo_Eduardo_B_AT-1221-21-0510-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDUARDO CARBALLO, II,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-1221-21-0510-W-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
nita M. Chambers , Esquire, and Scott Oswald , Esquire, Washington,
D.C., for the appellant.
Bryan Upshur , Esquire, Claudine Landry , Esquire, and Jeanne Louise
Heiser , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 second Carr factor, i.e., motive to retaliate, weighs in favor of the
appellant, and the third Carr factor, i.e., comparator evidence, cannot weigh in
favor of the agency, we AFFIRM the initial decision.
BACKGROUND
The appellant is a GS-14 Deputy District Director in the agency’s Georgia
office. Initial Appeal File (IAF), Tab 6 at 79-80, 93. On April 21, 2020,
the appellant disclosed to M.V.,2 the Associate Administrator of the Office of
Federal Operations (OFO), and V.P., the Deputy Associate Administrator of OFO,
that his second-line supervisor (supervisor), who was the Region IV
Administrator, was engaging in prohibited personnel practices. Hearing
Transcript (HT) at 274-76 (testimony of the appellant). Specifically, the
appellant told M.V. and V.P. that his supervisor promised the appellant that, if he
accepted a detail to the North Florida office, then his supervisor would “do
everything in his power” to ensure that the appellant was permanently made the
District Director of that office, so long as the supervisor was able to “pick” the
appellant’s deputy. HT at 275 (testimony of the appellant). The appellant also
2 Due to the number of individuals involved in this matter, we refer to the individuals
using their initials to minimize confusion.
3
reported that his supervisor had a “pattern” of using the Schedule A hiring
authority to circumvent the competitive hiring process to select an individual of
his choosing, usually one whom he knew personally or who was aligned with his
political preference.3 HT at 274-76 (testimony of the appellant); IAF, Tab 20
at 165.
On December 1, 2020, the appellant elevated his concerns in an email to
J.C., the agency Administrator, and E.H., the agency’s Chief Human Capital
Officer, specifically mentioning that he had reported his concerns to the agency
months prior. IAF, Tab 20 at 164-66. The appellant also explained that he was
concerned that his disclosures would prevent him from getting the New
Hampshire District Director position, particularly because the Regional
Administrator for the area including New Hampshire, W.D., told the appellant
after his interview that he (W.D.) had spoken to the supervisor about the
appellant. Id.
On December 18, 2020, the appellant learned that he was not selected for
the New Hampshire position, and instead, the agency selected A.B., who was the
Maine District Director. Id. at 189, 191-92. Subsequently, in February 2021,
the agency posted vacancy announcements for the Maine and North Carolina
District Director positions. Id. at 125-32, 138-45. In April 2021, the agency
selected D.S. for the Maine position, and in May 2021, the agency selected M.A.
for the North Carolina position. Id. at 57, 59.
The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency retaliated against him for making protected disclosures
by not selecting him for the Maine, New Hampshire, or North Carolina positions.
IAF, Tab 6 at 75-94. After 120 days passed, the appellant filed an IRA appeal
with the Board, IAF, Tab 1, and the administrative judge issued a jurisdictional
order setting forth the applicable legal standard, and providing the appellant with
an opportunity to produce evidence and argument establishing that he exhausted
3 The supervisor left the agency in September 2020. HT at 150-51 (testimony of M.V.).
4
his administrative remedies4 and made a nonfrivolous allegation that his protected
disclosures were a contributing factor in the alleged personnel actions,
IAF, Tab 3. The appellant responded to the order, IAF, Tab 6, and the
administrative judge issued an order finding that the appellant had exhausted his
administrative remedies, made a nonfrivolous allegation that he made protected
disclosures on April 21 and December 1, 2020, and that the Board had
jurisdiction over the 3 nonselections,5 IAF, Tab 10, Tab 19 at 2-3.
After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. IAF, Tab 46, Initial
Decision (ID). First, the administrative judge found that the appellant made
protected disclosures on April 21 and December 1, 2020 because, based on the
evidence, a person in his position, with the essential facts known, could
reasonably conclude that his disclosures concerning improper hiring
practices evidenced the type of wrongdoing specified in 5 U.S.C. § 2302(b)(8)
(A). ID at 8-15. Next, she found that that the appellant satisfied the contributing
factor standard because the agency officials involved in the nonselections had
knowledge of his protected disclosures, and the 3 nonselections occurred within 2
years of his disclosures. ID at 15-16. Then, analyzing the three Carr factors, i.e.,
4 After issuance of the initial decision, the Board clarified that an appellant meets the
substantive requirements of exhaustion when he provides OSC with “sufficient basis” to
pursue an investigation. Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 7; see Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. Thus,
the administrative judge’s statement that, to prove exhaustion, the appellant must
establish that he informed OSC of the “precise grounds” of his claim, was inaccurate.
IAF, Tab 3 at 2, Tab 10 at 3, Tab 19 at 3. However, because the administrative judge
correctly found that the appellant exhausted his administrative remedies, ID at 7, IAF,
Tab 10 at 2-3, Tab 19 at 2-3, the error did not prejudice the appellant’s substantive
rights, Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis to reverse an initial decision).
5 Initially, the administrative judge found that the appellant did not exhaust
his administrative remedies with respect to his December 1, 2020 email.
IAF, Tab 10 at 2-3. However, after the appellant requested reconsideration of the
ruling, the administrative judge found that he had exhausted his administrative remedies
with OSC with respect to the December 1, 2020 email. IAF, Tab 19 at 2-3.
5
strength of the agency’s evidence ( Carr factor 1), motive to retaliate ( Carr factor
2), and comparator evidence ( Carr factor 3), the administrative judge found that
the agency produced strong evidence in support of its actions, the agency officials
had a weak motive to retaliate, and other non-whistleblowers were not selected
for the positions. ID at 16-23. Accordingly, she found that the agency
established by clear and convincing evidence that it would have made the same
decisions even in the absence of the appellant’s whistleblowing, and she denied
the appellant’s request for corrective action. ID at 23-24.
The appellant filed a petition for review, arguing, among other things,
that the administrative judge failed to properly assess the credibility of witness
testimony, and that, contrary to the administrative judge’s finding, V.P.
and others involved in the selection process had a motive to retaliate against him.6
Petition for Review (PFR) File, Tab 1 at 17-26.
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
6 On review, the appellant also argues that the administrative judge abused her
discretion because she denied his request for his supervisor to be a witness. PFR File,
Tab 1 at 26-27; IAF, Tab 35 at 6. 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). Absent a
conclusory statement that this witness was “highly relevant,” the appellant has failed to
present any evidence that his supervisor’s testimony is material to the issues at hand,
especially given that the supervisor left the agency several months before the
nonselections. PFR File, Tab 1 at 26-27; HT at 150-51 (testimony of M.V.).
Accordingly, the appellant has not shown that the administrative judge abused her
discretion.
6
the 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). 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); see Duggan v.
Department of Defense , 883 F.3d 842, 846 (9th Cir. 2018); Soto v. Department of
Veterans Affairs , 2022 MSPB 6, ¶ 11.
Neither party disputes the administrative judge’s finding that the appellant
made protected disclosures on April 21 and December 1, 2020, which was a
contributing factor in the agency’s failure to select him for the New Hampshire,
Maine, and North Carolina positions. ID at 8-16. Accordingly, we focus on the
issue in dispute, i.e., whether the agency met its clear and convincing burden,
and specifically, the second and third Carr factors.
As discussed below, we modify the initial decision to find that the agency
officials involved in the three nonselections had at least some professional motive
to retaliate, and thus, contrary to the administrative judge’s findings, the second
Carr factor weighs in favor of the appellant. We also modify the initial decision
to find that, because the agency failed to produce any comparator evidence, the
third Carr factor cannot weigh in the agency’s favor. Because we are modifying
the findings regarding the second and third Carr factors, we begin with a
discussion of those factors, and then conclude with a discussion of the first Carr
7
factor, finding nevertheless that the agency met its overall burden because the
strength of the agency’s evidence outweighs the other factors.
The second Carr factor weighs in favor of the appellant.
In the initial decision, the administrative judge found that the second Carr
factor weighed in favor of the agency because the agency officials involved in
making the selections had a weak motive to retaliate. ID at 18-20, 22-23.
Specifically, she found that although J.C., who was the selecting official for New
Hampshire position, was a recipient of the appellant’s December 1, 2020
disclosure, there was no evidence that she influenced any of the other individuals
involved in the selection process. ID at 18-19. She also found that the
recommending official for the New Hampshire position, W.D., had a weak motive
to retaliate because according to his testimony, he did not speak to the appellant’s
supervisor about the appellant or his complaints, and the panelists did not discuss
his complaints during the selection process. ID at 19-20. With regard to the
Maine and North Carolina positions, the administrative judge found that the
selecting official, V.P., had a weak motive to retaliate, relying in part on
his testimony in which he claimed that he did not recall much of the appellant’s
April 21, 2020 disclosure, but he did not “negatively consider the concerns”
raised by the appellant and he would have made the same selections regardless.
ID at 22-23. Thus, the administrative judge found that the second Carr factor
weighed in favor of the agency. ID at 18-20, 22-23. On review, the appellant
argues that the agency officials involved in his nonselections had motive to
retaliate against him. PFR File, Tab 1 at 21-26. He also challenged the
administrative judge’s credibility determinations, specifically with respect to the
testimony of W.D.7 Id. at 17-19.
7 The appellant alleges that it was retaliatory for M.V. and V.P. not to place him in the
Maine position using the 30% or More Disabled Veteran Hiring Authority. PFR File,
Tab 1 at 19-24. To the extent that the appellant argues that M.V.’s testimony was
inconsistent because he wanted to use a special authority to hire an individual with
political connections but would not use a special authority to place him in the same
position, id. at 10, 20-22, M.V. was not obligated to use a special authority to place the
8
The U.S. Court of Appeals for the Federal Circuit has instructed that the
Board take a liberal approach with the second Carr factor. For instance,
in Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012),
the court stated, “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees.”
The court in Whitmore determined that, when a whistleblower makes highly
critical accusations of an agency’s conduct that draws the attention of high-level
agency managers, the fact that an agency official is “outside the whistleblower’s
chain of command, not directly involved in alleged retaliatory actions, and not
personally named in the whistleblower’s disclosure is insufficient to remove the
possibility of a retaliatory motive or retaliatory influence,” and that the Board
should consider any motive to retaliate on the part of the agency official who
ordered the action, as well as that of any officials who influenced the action.
Id. at 1371.
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. For instance, in Robinson v. Department of Veterans
Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, although the
deciding official did not have a personal motive to retaliate against the appellant
for contradicting an agency Under Secretary, the administrative judge erred by
failing to consider whether he had a “professional retaliatory motive” against the
appellant because his disclosures “implicated the capabilities, performance,
and veracity of [agency] managers and employees.”
appellant in the position. Furthermore, as the individual in question was not selected,
we do not see the relevance of this argument.
9
Therefore, in line with applicable precedent, we find there is some evidence
of a professional retaliatory motive on the part of the agency officials.
First, V.P., who was the selecting official for the Maine and North Carolina
positions, and J.C., who was the selecting official for the New Hampshire
position, were the direct recipients of the appellant’s disclosures. IAF, Tab 20
at 164-66; HT at 274-76 (testimony of the appellant). Additionally,
the recommending official for the New Hampshire position, W.D., had knowledge
of the appellant’s disclosures because he spoke to the appellant’s supervisor about
the appellant and his complaints, even though he claimed to have had no
discussions with the panelists regarding the same.8 HT at 23-25 (testimony of
W.D.). Furthermore, the nature of the appellant’s disclosures could damage the
agency’s reputation, as the appellant implicated a political appointee, a Regional
Administrator, and accused him of misusing his position and circumventing
competitive hiring practices in order to select candidates whom he knew
personally or who aligned with his political preferences. HT at 274-76
(testimony of the appellant); IAF, Tab 20 at 165. The appellant also escalated his
concerns over the heads of M.V. and V.P., to the Administrator, J.C., and Chief
Human Capital Officer, E.H, creating more opportunity for embarrassment.
IAF, Tab 20 at 164-66.
In conclusion, we acknowledge that the agency officials may have had
some motive to retaliate, even if they were not directly implicated by the
appellant’s disclosures, to the extent that any criticism reflected on them or others
8 In his testimony, W.D. accepted that he had told an equal employment opportunity
(EEO) investigator that he had spoken to the appellant’s supervisor about the
appellant’s complaints, based on a summary of the investigator’s interview as read into
the record by the appellant’s attorney. HT at 23-25 (testimony of W.D.). The record
does not contain a copy of this EEO summary. While the appellant has alleged that
W.D.’s hearing testimony was inconsistent with his statements to the EEO counselor,
because he testified at the hearing that he did not recall speaking to the supervisor about
the appellant, this is not an accurate characterization. PFR File, Tab 1 at 18. Instead,
W.D. testified at the hearing that while he did not “recall” speaking to the supervisor
about the appellant, it “[did not] mean it never came up.” HT at 9 (testimony of W.D.).
10
in their capacities as agency managers and employees. We find that the evidence
demonstrates that there is some evidence of a professional retaliatory
motive,and that the second Carr factor weighs in favor of the appellant, and we
modify the initial decision accordingly.
The third Carr factor cannot weigh in favor of the agency.
In the initial decision, the administrative judge provided a bare analysis of
the third Carr factor, stating that there was minimal pertinent evidence in the
record but that there were other candidates who were not whistleblowers who
were also not selected for the positions. ID at 20, 22-23. However, it does not
appear that the agency put forth any evidence regarding the third Carr factor.9 Id.
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, we modify the initial decision to find that,
because the agency did not produce sufficient comparator evidence, the third Carr
factor cannot weigh in the agency’s favor, and if anything, cuts slightly against it.
The agency met the clear and convincing evidence standard because the strength
of the first Carr factor outweighs the other factors.
Even though the second Carr factor weighs in favor of the appellant, and
the third Carr factor cannot weigh in favor of the agency, we find, as the
administrative judge did, that the strength of the agency’s evidence in support of
its selections, i.e., the first Carr factor, weighs strongly in favor of the agency.
9 The administrative judge cited to the certificate of eligibles, which does not contain
any information regarding whether the candidates engaged in whistleblowing activities.
ID at 20, 22-23; IAF, Tab 20 at 112-13, 119-20. Thus, it is unclear what basis the
administrative judge had for finding that there were other candidates not selected for the
positions who were not whistleblowers.
11
ID at 17-18, 20-23. For instance, the agency’s selectee for the New Hampshire
position, A.B., has been with the agency for over 30 years, was the
New Hampshire Deputy District Director for 6 years, and served as the
Maine District Director for approximately 4 years prior to this selection.
IAF, Tab 20 at 418-423. In contrast, at the time of the selection, the appellant
had been with the agency for just over 4 years, had been the Georgia Deputy
District Director for approximately 2 years, and had never been a District
Director. Id. at 378-382. Furthermore, the interview panel for this position—
W.D., the Philadelphia District Director, and the Pittsburgh District Director—
all agreed not to advance the appellant to the second round of interviews.
HT at 13-17 (testimony of W.D.), 289 (testimony of the appellant). Furthermore,
the interview panel ranked A.B. the highest out of the three finalists.10
IAF, Tab 20 at 197-98, 222-24; HT at 16-17 (testimony of W.D.).
Similarly, the Maine selectee, D.S., had more relevant experience than the
appellant, including approximately 9 years of service with the agency and
approximately 7 years as the office’s Deputy District Director, and had acted as
District Director on for almost 4 years. IAF, Tab 20 at 385-87. D.S. also had
a background in banking, and longstanding relationships in the Maine economic
and business markets. Id.; HT at 104-05 (testimony of V.P). Furthermore,
multiple individuals involved in the interviewing process, including the Director
of the Office of the HUBZone Program, an agency attorney, and the Columbus
and New Mexico District Directors, all ranked D.S. as the top candidate.
IAF, Tab 20 at 83-84, 106-107, 109-110, 115; HT at 98-99, 102 (testimony of
V.P.). Apart from V.P., who was the selecting official, there is no evidence that
any of the other individuals involved in the selection process had any connection
to the appellant’s allegations of wrongdoing, or was aware of his disclosures.
10 W.D. recommended that J.C. select another candidate over both the appellant and
A.B. IAF, Tab 20 at 197-99. As a result, M.V. recommended that the selecting official,
J.C., speak to all candidates before making a selection. Id. Regardless of W.D.’s
recommendation, the agency selected A.B. Id. at 189.
12
Finally, the selectee for the North Carolina position, M.A., also had more
relevant experience than the appellant, as he has been employed by the agency for
over 24 years, served as the North Carolina Deputy Director for approximately
7 years, and acted as District Director. IAF, Tab 20 at 434-437. Additionally,
all of the panelists for this position, including the Wyoming, St. Louis, and New
York District Directors, and the acting Region IV Administrator, rated M.A. as
the top candidate for this position. Id. at 61-64, 66-69, 91-99. There is no
evidence that any of these individuals, besides the selecting official, had any
connection to the appellant’s allegations of wrongdoing, or was aware of his
disclosures.
Therefore, the record establishes that panelists, who apart from W.D. had
no connection to the appellant’s whistleblowing, independently determined that
the individuals the agency selected for each position were the best candidates.
Such evidence is very persuasive, and supports a finding that the agency did, in
fact, select the most qualified individual for each position. Thus, as the
administrative judge correctly noted, while the appellant’s resume may be
impressive, the agency put forth strong evidentiary support for its selections and
the first Carr factor weighs heavily in its favor. ID at 20, 22-23. Accordingly,
the first Carr factors outweighs the other factors, and we find that the agency
established by clear and convincing evidence that it would have made the same
decisions even absent the appellant’s whistleblowing.
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
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.
13
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
15
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
16
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Carballo_Eduardo_B_AT-1221-21-0510-W-1_Final_Order.pdf | 2024-04-02 | null | AT-1221-21-0510-W-1 | NP |
1,908 | https://www.mspb.gov/decisions/nonprecedential/Brown_DerrickAT-0752-20-0484-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK BROWN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-20-0484-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl R. Hudson , Atlanta, Georgia, for the appellant.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a preference-eligible Mail Processing Clerk for the
agency’s North Metro Georgia Processing and Distribution Center. Initial Appeal
File (IAF), Tab 4 at 62. In December 2018, the appellant fell ill with a
non-compensable medical condition that grew progressively worse until he was
forced to take extended leave. IAF, Tab 17, Hearing Recording, Track 1 at 48:20
(testimony of the appellant). The appellant’s last day in duty status was
January 31, 2019. IAF, Tab 4 at 65-67.
On September 4, 2019, the appellant informed the agency that he would be
able to return to work the following week, albeit with significant restrictions and
on a part-time basis. Id. at 44, 61. The agency referred the appellant’s case to
the District Reasonable Accommodation Committee (DRAC), which sent him a
letter on October 28, 2019, requesting additional information. Id. at 59-60. The
appellant forwarded the requested information, and on December 3, 2019, the
appellant met with the DRAC to discuss his situation. Id. at 48. On
December 10, 2019, the DRAC denied the appellant’s request for a reasonable
accommodation on the basis that he was unable to perform the essential functions
3
of a Mail Processing Clerk or of any vacant funded position, with or without
reasonable accommodations. Id. at 45-47.
On December 20, 2019, the appellant filed a request for reconsideration,
clarifying that he was not necessarily seeking a reasonable accommodation but
was interested in a light duty assignment. Id. at 39-40. On January 3, 2020, the
DRAC denied the appellant’s request for reconsideration. Id. at 38. The denial
letter did not specifically address the availability of light duty assignments, but it
indicated that the DRAC had searched for vacant funded positions within a
50-mile radius and was unable to identify one for which the appellant could
perform the essential functions, even with accommodation. Id. On February 12,
2020, the appellant submitted another request for reconsideration based on lesser
medical restrictions. Id. at 29-30. On March 2, 2020, the DRAC denied his
request. Id. at 27-28.
The appellant filed the instant Board appeal, alleging that the agency
constructively suspended him beginning January 3, 2020, and raising a claim of
disability discrimination.2 IAF, Tab 1 at 4. The administrative judge fully
apprised the appellant of his burden of proving jurisdiction over the appeal and of
his burden of proving disability discrimination and the possible methods for
doing so. IAF, Tab 14.
After a hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 21, Initial Decision (ID).
He found that the appellant’s absence from work was involuntary but that it was
not the result of any improper agency action. ID at 6-7. Specifically, he found
that the agency did not deny the appellant a reasonable accommodation because
the appellant was unable to perform the essential functions of a Mail Processing
2 The appellant did not file his appeal until April 29, 2020. IAF, Tab 1. The
administrative judge issued an order notifying the appellant that his appeal appeared to
be untimely, apprising him of the Board’s timeliness and good cause standards, and
ordering the parties to file evidence and argument on the issue. IAF, Tab 7.
Ultimately, the administrative judge declined to reach the timeliness issue in light of the
jurisdictional dismissal. IAF, Tab 21, Initial Decision at 14.
4
Clerk or of any other vacant funded position. ID at 7-10. The administrative
judge also found that the agency did not improperly deny the appellant’s request
for a light duty assignment because there was no such assignment available
within the appellant’s medical restrictions during the relevant time period. ID
at 10-14. The administrative judge also considered whether the agency might
have constructively suspended the appellant by placing him in leave without pay
status rather than charging the paid leave that he had on his balance. However, he
concluded that, even if the agency had acted improperly in this regard, the
appellant’s accumulated and donated leave was less than the 14 days needed for
an appealable constructive suspension. ID at 14 & n.8.
The appellant has filed a petition for review, disputing the outcome of the
initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 3.
ANALYSIS
When an employee voluntarily takes a leave of absence and later requests
to return to duty, but the agency denies the request, the Board may have
jurisdiction over the matter as a constructive suspension. Romero v. U.S. Postal
Service, 121 M.S.P.R. 606, ¶ 8 (2014). To establish jurisdiction over such an
appeal, the appellant must prove, among other things, that (1) he lacked a
meaningful choice in his absence; and (2) it was the agency’s wrongful actions
that deprived him of that choice. Id.; Bean v. U.S. Postal Service , 120 M.S.P.R.
397, ¶ 8 (2013). In this case, the administrative judge found that the appellant
lacked any meaningful choice but to be absent from his position. ID at 6-7. We
agree with this finding, and neither party challenges it on review. See Romero,
121 M.S.P.R. 606, ¶ 9; see also 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for
review.”). Therefore, the remaining issue is whether the agency’s wrongful
actions deprived the appellant of that choice.
5
In that regard, the administrative judge found that the agency did not act
improperly in denying the appellant’s request to return to duty. ID at 7-14.
Specifically, he found that the agency was not obligated to return the appellant to
duty under the Rehabilitation Act of 1973 because he was not a “qualified”
individual with a disability, i.e., he was unable to perform the essential functions
of a Mail Processing Clerk or of any vacant funded position with or without
reasonable accommodation. ID at 7-10. The appellant has not directly
challenged this finding on review, and we find that the administrative judge’s
analysis was correct and consistent with Board precedent on this issue. See
Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶¶ 28-29 (finding that
an agency does not violate the Rehabilitation Act when an employee is unable to
perform the essential functions of a position that he holds or desires with or
without reasonable accommodation).
The administrative judge also considered whether the agency might have
been obligated to provide the appellant with light duty under a local memorandum
of understanding. Even if an employee is not a qualified disabled individual
under the Rehabilitation Act, an agency may be required by policy, regulation, or
contractual provision to attempt to find him work within his medical restrictions,
regardless of whether that work comprises the essential functions of a vacant
funded position. Cf. Marino v. Office of Personnel Management , 243 F.3d 1375,
1377 (Fed. Cir. 2001) (finding that permanent assignment to light duties is not an
accommodation allowing an employee to perform the essential functions of a
position). If an agency fails to meet its obligations to an employee in this regard,
the employee’s continued absence for more than 14 days constitutes an appealable
constructive suspension. Dones v. U.S. Postal Service , 107 M.S.P.R. 235, ¶ 11
(2007).
In this case, the administrative judge found that the agency’s failure to
offer the appellant light duty work did not violate the memorandum of
understanding because there was no light duty work available within his medical
6
restrictions during the relevant time period. ID at-10-14. On review, the
appellant argues that “[t]he Agency did not follow the agreement between the
union by refusing to provide the Appellant light duty work assignment.” PFR
File, Tab 1 at 6. However, we find that this argument constitutes mere
disagreement with the administrative judge’s thorough and well -reasoned findings
on this issue. ID at 10-14; see Weaver v. Department of the Navy , 2 M.S.P.R.
129, 133-34 (1980).
The appellant states that he has attached to his petition for review a copy of
Article 13 of the Collective Bargaining Agreement between the American Postal
Workers Union and U.S. Postal Service. PFR File, Tab 6 at 7. As the
administrative judge correctly found, this document was not contained in the
record below. ID at 10 n.5.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). In this case, Article 13 of the National Agreement was clearly
available prior to the close of the record below, and the appellant has not
explained why he failed to submit it at that time. See Gardner v. Department of
Veterans Affairs , 123 M.S.P.R. 647, ¶ 19 (2016), clarified by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-24. Moreover, we note that the
appellant has not actually included a copy of Article 13 with his petition for
review, and having located and reviewed what appear to be the relevant
provisions at the American Postal Workers Union website, it does not appear to
us that they would be material to the outcome of the appeal. See Collective
Bargaining Agreement between American Postal Workers Union, AFL CIO and
the U.S. Postal Service, Art. 13, available at
https://d1ocufyfjsc14h.cloudfront.net/sites/default/files/2018-2021-apwu-usps-
cba-online_1.pdf; see also Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
7
(1980) (stating that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision).
On petition for review, the appellant argues that he was able to perform
duties at the agency in accordance with Latham v. U.S. Postal Service ,
117 M.S.P.R. 400 (2012), overruled by Cronin v. U.S. Postal Service ,
2022 MSPB 13. PFR File, Tab 1 at 6. However, the appellant does not explain
his theory of how Latham applies to this case, and we conclude that it does not.
Latham pertains to the provision of limited duty work to compensably injured
employees – not the provision of light duty work to employees with
non-compensable conditions like the appellant. 117 M.S.P.R. 400, ¶ 9.
The appellant also clarifies that the period of his claimed constructive
suspension began in September 2019. PFR File, Tab 1 at 7. However, having
reviewed the initial decision, we find that the administrative judge appropriately
considered the viability of a potential constructive suspension claim for the
appellant throughout the time period at issue, including the time period beginning
in September 2019. ID at 4-14. The appellant states that his work restrictions
changed in March 2020, thereby allowing him “to work in areas at the agency in
accordance to the Collective Bargaining Agreement and Local Memorandum of
Understanding.” PFR File, Tab 1 at 7. However, the appellant’s assertions are
unsupported by any evidence. The most recent medical documentation in the
record is dated February 10, 2020, IAF, Tab 4 at 30, and to the extent that the
appellant’s medical restrictions have been updated since that time, he has not
provided any evidence of his new restrictions to the Board. Furthermore, even
assuming that the appellant’s work restrictions changed in March 2020, there is
no evidence that his new restrictions were compatible with any available work
assignments.
The appellant further argues that the agency did not allow him “to use
[accumulated annual leave] from January 2020 until his leave was exhausted.”
8
PFR File, Tab 1 at 7. However, the administrative judge already addressed this
issue, finding no evidence that the appellant ever objected to being placed in
leave without pay status in lieu of paid leave, and in any event, the appellant’s
accumulated leave during the relevant time period fell under the greater than
14-day threshold for a suspension appeal within the Board’s chapter 75
jurisdiction. ID at 14; IAF, Tab 5 at 25-47; see 5 U.S.C. § 7512(2) (stating that
subchapter II of 5 U.S.C. chapter 75 covers “suspensions of more than 14 days”);
Bishop v. Department of Commerce , 62 M.S.P.R. 138, 142 (1994) (“Voluntary
placement on leave without pay status does not constitute a suspension that could
provide a basis for jurisdiction.”). The appellant’s argument constitutes mere
disagreement with the initial decision. See Weaver, 2 M.S.P.R. at 133 -34.
Finally, the appellant has attached a copy of 5 C.F.R. part 1201 as well as
excerpts from several precedential Board decisions, asserting that the
administrative judge failed to apply these correctly to the facts of his case. PFR
File, Tab 1 at 7, 11-18. However, the appellant does not describe how the
administrative judge erred in applying the law to the facts of his case, and we are
unable to identify any error based on the information that the appellant has
provided in his petition. A petition for review must contain sufficient specificity
to enable the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record, and we find that the petition in this
case fails to meet that standard. See Simpkins v. Department of Labor ,
107 M.S.P.R. 651, ¶ 9 (2008).
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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Brown_DerrickAT-0752-20-0484-I-1__Final_Order.pdf | 2024-04-02 | DERRICK BROWN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-20-0484-I-1, April 2, 2024 | AT-0752-20-0484-I-1 | NP |
1,909 | https://www.mspb.gov/decisions/nonprecedential/Ghahramani_FarshadSF-0752-18-0800-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FARSHAD GHAHRAMANI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-18-0800-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Farshad Ghahramani , Las Vegas, Nevada, pro se.
Nadine Scott , 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 his removal appeal for lack of jurisdiction due to his waiver of his
Board appeal rights in a last chance agreement (LCA). On petition for review,
the appellant reiterates his general contentions that the agency falsely charged
him with failing to perform his job duties and that he was coerced into signing 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
LCA. Generally, we grant 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).
Regarding the appellant’s assertion that the agency falsely accused him of
failing to perform his job duties, we agree with the administrative judge that the
appellant’s general contentions that he did not engage in the misconduct are too
vague and conclusory to constitute nonfrivolous allegations that he complied with
the LCA. See 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as one that
is more than conclusory). Additionally, we find that the administrative judge
properly considered and rejected the appellant’s argument that he was forced to
sign the LCA against his will under distress because the appellant failed to offer
sufficient detail concerning such a claim. Finally, as the administrative judge
found, absent an appealable action, the Board lacks jurisdiction over the
appellant’s claims of reprisal and discrimination. See Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
3
Accordingly, we affirm the initial decision dismissing the appeal for lack
of jurisdiction.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 The agency’s removal action was taken pursuant to 38 U.S.C. § 714. We find that this
does not affect the outcome in the instant appeal. The dispositive issue in this appeal is
jurisdictional and remains governed by 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with
the administrative judge that the appellant has failed to establish Board jurisdiction over
his 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.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Ghahramani_FarshadSF-0752-18-0800-I-1 Final Order.pdf | 2024-04-02 | FARSHAD GHAHRAMANI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-18-0800-I-1, April 2, 2024 | SF-0752-18-0800-I-1 | NP |
1,910 | https://www.mspb.gov/decisions/nonprecedential/Ganz_AlexisDE-1221-21-0201-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALEXIS GANZ,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-1221-21-0201-W-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
W
illiam J. Dunleavy , Esquire, Richardson, Texas, for the appellant.
Jeanelle L. Graham , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision,
which denied 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, VACATE the initial decision, and REMAND the case to the
Denver 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 is employed as a GS-12 Clinical Psychologist in the agency’s
Bureau of Prison’s Psychology Services at the Federal Correctional Complex
(FCC) in Florence, Colorado. Initial Appeal File (IAF), Tab 13 at 40. According
to the appellant, in October 2020, she informed her first-level supervisors,
the acting and regular FCC Deputy Chiefs of Psychology, that she had tested
positive for COVID-19. IAF, Tab 20 at 5, 41-42, 59, Tab 45 at 34-35.
On October 27, 2020, following a period of quarantine, the appellant
returned to work. IAF, Tab 45 at 8, 34. Upon her return, two FCC staff members
told her that a third staff member had advised them of her COVID-19 diagnosis.
Id. at 35-36. The staff member who shared the appellant’s diagnosis was not her
supervisor and did not work in Psychology Services. Id. at 35. Around the same
time, an agency employee transferred into the FCC Chief Psychologist position,
thus becoming the appellant’s new second-level supervisor. IAF,
Tab 20 at 16-17.
Between November 5 and 9, 2020, the appellant reported to an Assistant
Human Resources Manager, a Special Investigative Agent, and a Health Services
Administrator, among others, that she believed the agency improperly disclosed
her medical information in violation of the Health Insurance Portability and
Accountability Act (HIPAA) and the Privacy Act after she learned that other staff
knew about her COVID-19 diagnosis. IAF, Tab 45 at 8. On November 6, 2020,
the Health Services Administrator reported to the appellant’s first- and
second-level supervisors that the appellant had alleged the agency violated
HIPAA and was “demanding an investigation.” IAF, Tab 12 at 22, Tab 20 at 6,
17-18. The appellant’s supervisors also learned that same day, from a different
agency employee, that the appellant had published an article that discussed her
prior internship in the Bureau of Prisons and identified her as a current employee.
IAF, Tab 20 at 7, 18, 22, Tab 13 at 37. The article appeared to lack required
agency approval. IAF, Tab 20 at 22-27. On November 17, 2020, the appellant’s2
first- and second-level supervisors issued the appellant a counseling memorandum
for publishing the article without the authorization required by agency policy.
IAF, Tab 20 at 7, 18, 23, Tab 13 at 37.
On November 30 or December 1, 2020, an inmate informed the agency
that he had reported suicidal ideations to the appellant the prior day. IAF,
Tab 13 at 31, Tab 45 at 8. According to the inmate, the appellant ignored this
report and failed to complete a suicide risk assessment, after which the inmate
harmed himself. IAF, Tab 13 at 31-32. The Associate Warden (AW), who was
the appellant’s third-level supervisor, referred the matter to the agency’s Office
of Internal Affairs (OIA) for investigation on December 2, 2020. IAF,
Tab 20 at 36-37, Tab 45 at 10. That same day, at the direction of the AW,
the appellant’s second-level supervisor placed the appellant on administrative
non-clinical duties. IAF, Tab 13 at 29, Tab 20 at 18-19, 38. The administrative
judge found, and the parties do not dispute on review, that this assignment
involved work at the level of a GS-7 Psychology Technician and regular
augmentation. IAF, Tab 73, Initial Decision (ID) at 2-3; IAF, Tab 20 at 38.
“Augmentation” within the agency means ordering employees whose positions do
not primarily involve security duties to perform the duties of a correctional
officer. IAF, Tab 52, Hearing Recording (HR), Day 1, Track 8 (testimony of the
appellant’s second-level supervisor).
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that in retaliation for her Privacy Act and HIPAA disclosures, the agency
issued her the November 17, 2020 counseling memorandum, initiated the OIA
investigation, assigned her to administrative duties, which included performing
correctional officer duties, informed her that she was “no longer a psychologist,”
and subjected her to a hostile work environment. IAF, Tab 1 at 9,
Tab 12 at 21-24. After OSC closed its investigation, the appellant filed this
appeal. IAF, Tab 1 at 1, 9. 3
The administrative judge advised the appellant of her jurisdictional burden
and instructed her to file evidence and argument regarding the jurisdictional
issue. IAF, Tab 3. After the parties responded, the administrative judge found
that the appellant exhausted her OSC remedy and otherwise established
jurisdiction over the above disclosures and some of the alleged personnel actions.
IAF, Tabs 12, 15, Tab 24 at 3-5. The administrative judge determined that the
memorandum of counseling and OIA investigation were not personnel actions
within the Board’s IRA jurisdiction. IAF, Tab 34 at 6-7.
After holding a 3-day hearing, the administrative judge issued an initial
decision in which she found that the appellant proved that she made protected
disclosures and was subjected to personnel actions. ID at 5, 8-9.
The administrative judge concluded that the appellant failed to prove her prima
facie case of whistleblower reprisal because she did not show that her protected
disclosures were a contributing factor in the AW’s decision to place her on
administrative duties because he was unaware of her disclosures. ID at 9-10.
In so holding, the administrative judge credited the AW’s testimony that he did
not know, and that he did not consult with anyone who knew, about the
disclosures. ID at 10.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1-2. She appears to reassert that she was subjected to a “retaliatory
investigation.” PFR File, Tab 2 at 10. She disagrees with the administrative
judge’s determination that the AW credibly denied knowledge of the appellant’s
disclosures. PFR File, Tab 1 at 12-15. She argues that the administrative judge
abused her discretion in her discovery-related rulings and violated the appellant’s
due process rights when technical issues caused the loss of 1 day of the hearing
recording, which required recalling a witness to testify again. PFR File,
Tab 1 at 7, 13, 15-17, 19-20. Finally, she presents evidence, some of which the
administrative judge rejected below, allegedly showing that the agency subjected
her to additional personnel actions after the close of record when it told her4
she could resume clinical duties, continued to investigate her, and refused to
provide a copy of the OIA investigative report. PFR File, Tab 1 at 18-19.
The agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in her jurisdictional determination by failing to
consider the memorandum of counseling and OIA investigation as part of a
hostile work environment claim.
Below, the appellant timely objected to the administrative judge’s finding
that the Board lacks jurisdiction over her memorandum of counseling and the OIA
investigation. IAF, Tab 24 at 4-7, Tab 25. The administrative judge declined to
revisit this determination. IAF, Tab 28. Although the appellant has not directly
challenged the administrative judge’s findings regarding the Board’s jurisdiction
over these alleged personnel actions on review, she reiterates that she was
subjected to a “retaliatory investigation.” PFR File, Tab 2 at 10, 18.
To establish the Board’s jurisdiction over an IRA appeal, an appellant must
have exhausted her administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take,
or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A).2 Spivey v. Department of Justice , 2022 MSPB 24, ¶ 5.
The definition of “personnel action” includes 11 enumerated matters and a final
category for “any . . . significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).
2 Although not necessary for our jurisdictional finding, we observe that the appellant
may be able to prove, on the merits, that some of her disclosures were made to agency
“component[s] responsible for internal investigation or review.” Such disclosures
constitute protected activities under 5 U.S.C. § 2302(b)(9)(C) regardless of their
content. Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶ 62.5
As the administrative judge correctly noted in her jurisdictional findings,
an investigation does not, by itself, constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A). ID at 28; Spivey, 2022 MSPB 24, ¶¶ 11-12. Further,
a counseling letter that merely advises an appellant of agency rules without
warning of future discipline or proposing additional restrictions is not, on its own,
a personnel action. See Hudson v. Department of Veterans Affairs , 104 M.S.P.R.
283, ¶ 17 n.* (2006) (agreeing with an administrative judge’s determination that a
counseling letter that set forth the agency’s existing rules regarding leave usage
without threatening disciplinary action or proposing to restrict the appellant’s
leave usage was not a personnel action). Here, the November 17, 2020
counseling memorandum noted that the appellant had published an article that
“provid[ed] procedural information pertaining to the Bureau of Prisons” and the
appellant’s employment at the agency without obtaining agency approval “prior
to publication as required by policy.” IAF, Tab 20 at 33. The appellant’s
second-level supervisor specifically reassured the appellant that the memorandum
of counseling was “not disciplinary.” IAF, Tab 20 at 32. Thus, the memorandum
was simply a reminder that the appellant was required to follow agency policy.
When, as here, agency actions do not independently fall within the
11 enumerated personnel actions, the administrative judge must “analyze whether
any of [the appellant’s] allegations individually or collectively fall under category
([xii]).” Holderfield v. Merit Systems Protection Board , 326 F.3d 1207, 1209
(Fed. Cir. 2003) (citing to 5 U.S.C. § 2302(a)(2)(A)(xi), where this provision was
previously located).3 Although the Board interprets “significant change” broadly
to include harassment and discrimination that could have a chilling effect on
3 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to the
All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.6
whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties,
or responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 16. Thus, the Board may have jurisdiction over an alleged
significant change in working conditions that includes, among other actions,
an investigation. See id., ¶ 18 (finding that an appellant nonfrivolously alleged
that his employing agency significantly changed his working conditions based on
his claims that officials in his chain of command excluded him from meetings and
conversations, subjected him to multiple investigations, accused him of
“fabricating data” and of a Privacy Act violation, refused his request for a review
of his position for possible upgrade, yelled at him on three occasions, and failed
to provide him the support and guidance needed to successfully perform his
duties). We find that this same reasoning applies to a memorandum of
counseling.
Here, the appellant alleged that, between her November 2020 protected
disclosures and February 2021, her supervisors issued her a memorandum of
counseling, referred an incident with an inmate in which she was the alleged
wrongdoer to OIA for investigation, assigned her duties below her level,
and required her to perform correctional officer duties. IAF, Tab 12 at 8-9,
Tab 20 at 5, 45. She further alleged that her new first-level supervisor advised
her that she was “no longer a psychologist” and that refusal to perform
correctional officer duties could result in discipline.4 IAF, Tab 12 at 9.
4 The administrative judge found that the appellant exhausted her claim regarding her
supervisor’s alleged February 2021 comments. IAF, Tab 24 at 4-5. However, the
administrative judge found that the appellant failed to prove she exhausted her claim
that her first-level supervisor again told her that she was “no longer a psychologist” on
April 4, 2021, as well as claims regarding other incidents occurring after OSC closed its
investigation in March 2021. IAF, Tab 24 at 7, Tab 28. The parties have not
challenged these findings on review, and we discern no basis to disturb them. IAF,
Tab 12 at 13-42.7
She identified the supervisors involved and when the incidents occurred. Id.
Further, although not necessary for a jurisdictional finding, the agency does not
dispute that these incidents took place. IAF, Tab 13 at 29, Tab 20 at 33,
Tab 45 at 8-10; see Hessami v. Merit Systems Protection Board , 979 F.3d 1362,
1367-69 (Fed. Cir. 2020) (finding that a jurisdictional determination in an IRA
appeal should be based on an appellant’s allegations without crediting
an agency’s evidence contradicting those allegations). Taken cumulatively,
we find that the appellant nonfrivolously alleged that these actions constitute a
significant change in duties, responsibilities, and working conditions. Further,
the appellant proved that she exhausted these allegations with OSC. IAF,
Tab 12 at 20-24.
The appellant nonfrivolously alleged that her protected disclosures were a
contributing factor in the alleged personnel actions.
The administrative judge found that the appellant nonfrivolously alleged
that her protected disclosures were a contributing factor in the decision to place
the appellant on administrative status, strip her of clinical responsibilities,
and assign her as a “first line staff member” for augmentation purposes, as well as
the February 22, 2021 comment that she was “no longer a psychologist.” IAF,
Tab 12 at 9-10, Tab 24 at 4-5. The parties do not dispute this finding on review,
and we decline to disturb it.
Because she found that the memorandum of counseling and OIA
investigation were not personnel actions, the administrative judge did not make
jurisdictional findings on contributing factor as to those matters. 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 was one factor that tended to affect the personnel action in any way.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the official taking the personnel action knew of8
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., ¶ 15. Applying this test, we find that the
appellant nonfrivolously alleged contributing factor as to both the memorandum
of counseling and OIA investigation.
The appellant’s first- and second-level supervisors issued the
November 17, 2020 memorandum of counseling 11 days after learning of the
appellant’s disclosures. IAF, Tab 20 at 6-7, 17-18, 33. The Board has held that
the timing prong of the knowledge/timing test is satisfied when a personnel action
occurred within 1 to 2 years of the protected disclosure or activity. Pridgen v.
Office of Management & Budget , 2022 MSPB 31, ¶ 63. Therefore, these facts
amount to a nonfrivolous allegation of contributing factor as to the memorandum
of counseling.
The appellant also alleged to OSC that the AW “demanded that the Special
Investigative Agents . . . refer an inmate allegation against me to OIA for review”
less than 4 weeks after she made her protected disclosures. IAF, Tab 12 at 20-21,
23. Thus, she met the timing prong of the knowledge/timing test as to this
personnel action. She also made nonfrivolous allegations concerning the
knowledge prong. As to the knowledge prong, the appellant need only make a
nonfrivolous allegation that the agency official who took the action had
constructive knowledge of the disclosure. Swinford v. Department of
Transportation, 107 M.S.P.R. 433, ¶ 9 (2007). T he agency submitted a sworn
statement from the AW corroborating that he requested the OIA investigation.
IAF, Tab 20 at 37. The appellant alleged below that the AW had a “very long
standing relationship” with the appellant’s first-level supervisor at the time that
the AW made the OIA referral. IAF, Tab 12 at 6, 23-24. It is undisputed that this
supervisor was aware of the appellant’s disclosure. IAF, Tab 20 at 6.
We interpret this as an implicit allegation that the AW had constructive
knowledge of the appellant’s protected disclosures when he referred her for9
an OIA investigation. This amounts to a nonfrivolous allegation that the
appellant’s protected disclosure was a contributing factor in the AW’s decision to
refer her for an OIA investigation.
Therefore, we find that the appellant nonfrivolously alleged that her
disclosures were a contributing factor in the memorandum of counseling and OIA
investigation under the knowledge/timing test.
We vacate the initial decision in its entirety and remand for new findings on the
merits.
At the merits stage of an IRA appeal, the appellant must prove by
preponderant evidence that she made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action taken
against her. 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 evidence that it would have taken the same personnel action
absent the protected disclosure or activity. Id. The administrative judge made
findings on the merits of the appellant’s claims after she improperly narrowed the
scope of the alleged hostile work environment over which the Board has
jurisdiction.
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 her to make credibility
determinations based on witness demeanor. Lin v. Department of the Air Force ,
2023 MSPB 2, ¶ 24. Because our findings here expand the scope of the hostile
work environment that the administrative judge must address on the merits,
and the parties disagree as to whether the agency’s alleged actions were
motivated by the appellant’s disclosures, we vacate the initial decision in its
entirety. See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37
(2013) (finding that when the relevant evidence needs to be reweighed,10
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). On remand,
the assigned administrative judge should hold a new hearing on the merits of the
appellant’s claims and issue a remand initial decision on all of the issues without
relying on the vacated initial decision.
On remand, in making findings as to whether the appellant proved that her
disclosures were a contributing factor in the AW’s decision to place the appellant
on administrative duties, the administrative judge should consider whether the
appellant proved that the AW was influenced by the appellant’s second-level
supervisor, who had knowledge of the disclosures. In the initial decision,
the administrative judge found no evidence that the AW knew, or consulted with
anyone who knew, of the appellant’s disclosures. ID at 10. The record does not
support this conclusion. The appellant’s second-level supervisor, who both
signed and presented the appellant with the letter assigning her to administrative
duties at the direction of the AW, knew of the appellant’s disclosures. IAF,
Tab 13 at 29, Tab 20 at 17-19. The supervisor testified that she did not discuss
the appellant’s disclosures with the AW and that she decided not to object to the
appellant’s reassignment because she agreed with the decision. HR, Day 2,
Track 5 (testimony of the appellant’s second-level supervisor). On remand, the
administrative judge could find that the supervisor’s silence on this matter
influenced the AW to move forward with the placement of the appellant on
administrative duties, thus establishing constructive knowledge. E.g., Marano v.
Department of Justice , 2 F.3d 1137, 1138-39, 1143 (Fed. Cir. 1993) (finding
an employee met his burden of proving contributing factor because the content of
his disclosure was the reason the agency conducted an investigation which
verified his disclosure and, in turn, led to his reassignment, the personnel action
at issue in the case).
The Board has held that, if an administrative judge determines that
an appellant has failed to satisfy the knowledge/timing test, she shall consider11
other evidence, such as evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and whether they had a
desire or motive to retaliate against the appellant. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 15 (2012). The administrative judge’s initial decision
did not address the alternative to the knowledge/timing test set forth in Dorney.
ID at 9-10. If, on remand, the administrative judge finds that the appellant did
not prove contributing factor under the knowledge/timing test, she should
determine if the appellant proved contributing factor under the reasoning in
Dorney.
On remand, the administrative judge should order the agency to produce the OIA
investigation and related materials.
The appellant alleges that the administrative judge abused her discretion in
denying the appellant’s four motions to compel. PFR File, Tab 2 at 5-7, 14-17;
IAF, Tabs 30, 39, 47, 71. As relevant here, discovery must be completed within
the time period designated by the administrative judge. 5 C.F.R. § 1201.73(d)(4).
Further, a motion to compel must contain a statement that the moving party has
discussed or attempted to discuss the anticipated motion with the nonmoving
party and made good faith efforts to resolve the discovery dispute. 5 C.F.R.
§ 1201.73(c)(1)(iii). An administrative judge has broad discretion in ruling on
discovery matters, and absent an abuse of discretion, the Board will not find
reversible error in such rulings. Pridgen, 2022 MSPB 31, ¶ 71.
The administrative judge denied the appellant’s first motion to compel
because it was untimely filed without good cause and did not state that
she attempted to resolve her discovery dispute with the agency before filing her
motion. IAF, Tab 34 at 1-2. The administrative judge had previously advised the
parties that they had until July 19, 2021, to respond to discovery requests,
and until July 26, 2021, to file motions to compel. IAF, Tab 21 at 1. This
amounted to a 9-day period for filing a motion to compel from the opposing12
party’s allegedly deficient responses. Although the Board’s regulations generally
provide for a 10-day period, Pridgen, 2022 MSPB 31, ¶ 71; 5 C.F.R. § 1201.73(d)
(3), we discern no abuse of discretion in the administrative judge shortening the
period by 1 day. The agency responded to the appellant’s written discovery on
July 19, 2021, as required. IAF, Tab 30 at 28, 47. The appellant’s attorney filed
the first motion to compel on July 27, 2021, and therefore it was 1 day late. IAF,
Tab 30 at 1. Further, he did not state in that motion that he attempted to resolve
the discovery dispute with the agency. Id. at 5-9. Thus, the administrative judge
acted within her discretion in denying the motion based on these deficiencies.
Similarly, the administrative judge did not abuse her discretion in denying
the appellant’s second and third motions to compel. IAF, Tabs 41, 47.
She denied the second motion because the appellant’s attorney’s statement that
he unsuccessfully attempted to contact agency counsel within minutes of filing
his motion was not a good faith attempt to resolve the discovery dispute,
as required by 5 C.F.R. § 1201.73(c)(1)(iii). IAF, Tab 39 at 7-8, Tab 40 at 11,
Tab 41. She denied the appellant’s third motion to compel because her attorney
filed it after the August 27, 2021 deadline for the close of discovery. IAF,
Tab 21 at 1, Tabs 47, 48; see Cassel v. Department of Agriculture , 72 M.S.P.R.
542, 545-46 (1996) (finding no abuse of discretion in denying discovery motions
filed 10 days after the limit specified in the acknowledgment order).
The administrative judge’s denial of the appellant’s fourth motion to
compel discovery is more troublesome. The agency had represented in its
July 19, 2021 responses to the appellant’s request for production of documents
that, at that time, the investigation was still pending. IAF, Tab 39 at 17,
Tab 71 at 5. During a status conference on November 16, 2021, the agency’s
representative acknowledged that the OIA investigation had been completed or
was nearing completion. IAF, Tabs 70-72. The appellant thereafter moved to
compel production of the report and records of the investigation. IAF,
Tab 71 at 4, 7. The administrative judge denied the appellant’s fourth motion to13
compel discovery on the basis that “[t]he results of the investigatory report are
not probative” to the appeal. IAF, Tab 72.
The scope of discovery includes information that appears reasonably
calculated to lead to the discovery of admissible evidence. Jenkins v.
Environmental Protection Agency , 118 M.S.P.R. 161, ¶ 26 (2012); 5 C.F.R.
§ 1201.72(a)-(b). We have now determined that the appellant nonfrivolously
alleged that the OIA investigation was part of a series of actions that
cumulatively constituted a significant change in duties, responsibilities,
and working conditions. We need not determine here if the administrative judge
abused her discretion in denying the appellant’s fourth motion to compel.
Instead, we find that the report and related materials may lead to the discovery of
admissible evidence. Because the discovery dispute here is narrow, we decline to
reopen discovery on remand. However, in order to permit the appellant to fully
adjudicate her claims, the administrative judge should order the agency to
produce a copy of the OIA investigation and underlying materials. See Jenkins,
118 M.S.P.R. 161, ¶¶ 27-29 (permitting the parties to conduct additional
discovery related to an appellant’s whistleblower reprisal affirmative defense on
remand because the administrative judge’s rulings related to discovery effectively
denied the appellant a full opportunity to establish her claim).
The appellant also argues that the administrative judge abused her
discretion when she denied the appellant’s request for the testimony of a
particular Special Investigative Agent at the hearing. PFR File, Tab 2 at 9;
IAF, Tab 46 at 12. The administrative judge denied this request, finding that
the appellant’s proffer did not establish the relevance of this witness. IAF,
Tab 51 at 2. The appellant failed to object to that ruling below and is precluded
from raising the issue on review. Tarpley v. U.S. Postal Service , 37 M.S.P.R.
579, 581 (1988). However, in light of this Remand Order, the parties may make
new requests for witnesses consistent with the administrative judge’s orders, and14
the administrative judge should make new findings whether to permit those
witnesses to testify at the new hearing.
Because we are vacating the initial decision and remanding for a new
hearing, we need not reach the appellant’s arguments that the administrative
judge made erroneous findings of fact; discouraged the appellant from testifying
at the end of the hearing; and improperly considered the AW’s first day of
testimony despite the court reporter failing to record it, requiring that the AW be
recalled. PFR File, Tab 2 at 12-14, 19, 21, 40, Tab 5 at 7. We also do not rule on
the admissibility of the evidence she offers for the first time on review. PFR File,
Tab 2 at 12, 18. On remand, she may request to submit this evidence into the
record consistent with the orders of the administrative judge. The appellant also
names new witnesses on review. Id. at 11-12. Again, she may request the
testimony of these witnesses consistent with the administrative judge’s orders.
We leave whether to permit such witnesses to the sound discretion of the
administrative judge on remand.
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.15 | Ganz_AlexisDE-1221-21-0201-W-1_Remand_Order.pdf | 2024-04-02 | ALEXIS GANZ v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-1221-21-0201-W-1, April 2, 2024 | DE-1221-21-0201-W-1 | NP |
1,911 | https://www.mspb.gov/decisions/nonprecedential/Gabler_RobertDA-0752-21-0146-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT GABLER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-21-0146-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyler J. Sroufe , Esquire, and Veronica Harte , Esquire, Dallas, Texas, for
the appellant.
Nora E. Hinojosa , Fort Cavazos, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his reduction in grade and pay. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review.2 Except as expressly
MODIFIED to clarify that the appellant did not waive his due process claim, we
AFFIRM the initial decision.
In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the
action may not be sustained if the appellant shows that it was the product of a due
process violation or harmful procedural error. 5 U.S.C. § 7701(c)(2)(A);
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991); see
5 C.F.R. § 1201.56(b)(2)(i)(C).
2 In its response, the agency requests that the Board revoke the extension of time
granted to the appellant to file his petition for review and find it untimely filed.
Petition for Review File, Tab 5 at 4. It alleges that the appellant misrepresented his
need for an extension before the Board. Id. Pursuant to 5 C.F.R. § 1201.114(f), the
Board has the discretion to grant such motions that are filed on or before the date on
which the petition is due. Because the appellant requested an extension of time on
February 22, 2022, and his petition for review was due by March 9, 2022, we discern no
basis to revoke his extension. Thus, the agency’s request is DENIED.
3
On petition for review, the appellant challenges the administrative judge’s
finding that he waived his due process claim because he failed to object to the
issue in the order closing the record. Petition For Review (PFR) File, Tab 3
at 15-16; Initial Appeal File (IAF), Tab 34, Initial Decision at 4 n.6. Specifically,
he asserts that “[he] did not learn of these due process violations until reading the
[a]gency’s [r]esponse to [the] [c]lose of [r]ecord [o]rder, and as such, could not
have raised this issue prior to his [r]esponse to the [a]gency’s [c]lose of [r]ecord
[b]rief, submitted on July 28, 2021.” PFR File, Tab 3 at 15.
We acknowledge that the appellant did not object to the absence of this
affirmative defense in the administrative judge’s order closing the record.
However, before the close of the record below, the appellant raised the issue that
the agency presented new evidence in its response to the closing order dated
July 21, 2021. IAF, Tab 31 at 6-7. Therefore, as the administrative judge
observed, pursuant to 5 C.F.R. § 1201.59(c), the appellant must be allowed to
respond to the new evidence submitted by the agency just before the close of the
record. IAF, Tab 21 at 1. We find that he acted with due diligence in raising his
argument at the earliest practicable time under the circumstances; thus, we will
address it on review.
The essential requirements of procedural due process are prior notice of the
charges and evidence against the employee and a meaningful opportunity to
respond to those charges and evidence. Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985). Pursuant to Ward v. U.S. Postal Service ,
634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official
violates an employee’s due process rights when he relies upon new and material
ex parte information as a basis for his decision on the merits of a proposed charge
or the penalty to be imposed. Mathis v. Department of State , 122 M.S.P.R. 507,
¶ 6 (2015). Therefore, an employee must be given advance notice of any
aggravating factors supporting an enhanced penalty as well as a meaningful
4
opportunity to address whether the level of penalty to be imposed is appropriate.
Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1376.
The appellant argued below and reasserts on review that the agency
violated his due process rights when the agency “identifie[d] and reference[d]
instances [that were] not included in the [p]roposal [l]etter where [he] allegedly
failed to follow instructions and meet deadlines” and the deciding official
consulted his first-line supervisor prior to issuing the decision letter. PFR File,
Tab 3 at 15-16; IAF, Tab 31 at 6-7. The appellant appears to construe some of
the agency’s statements as an admission that it considered information not
identified in the proposal.3 PFR File, Tab 3 at 15-16; IAF, Tab 31 at 6-7.
However, there is no indication in the record that the deciding official relied on
any specifications of misconduct not identified in the proposal to change him to a
lower grade. Further, the appellant’s vague assertion that the deciding official
considered ex parte information because he consulted with his first-line
supervisor prior to issuing the decision is unavailing. Therefore, we find that the
appellant has not shown that the agency violated his right to due process.4
For the foregoing reasons, we affirm the initial decision sustaining the
appellant’s reduction in grade and pay, as modified by this Final Order.
3 Upon reviewing the record, we believe that the appellant is referring to the agency’s
statements that, amongst other things, it could have added more specifications to the
proposal notice, the events at issue occurred after the appellant served a 14-day
suspension which involved other incidents, and he was fully aware through numerous
verbal and email notices that his conduct was unacceptable. IAF, Tab 29 at 11, 21, 24.
We are not persuaded by the appellant’s purported evidence.
4 Although the agency’s conduct did not constitute a constitutional violation, the Board
must still decide whether the agency committed a harmful error. See Ward, 634 F.3d
at 1281-83. Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency
decision if the appellant “shows harmful error in the application of the agency’s
procedures in arriving at such decision.” The record does not support a finding that the
agency committed a harmful error.
5
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | Gabler_RobertDA-0752-21-0146-I-1__Final_Order.pdf | 2024-04-02 | ROBERT GABLER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-21-0146-I-1, April 2, 2024 | DA-0752-21-0146-I-1 | NP |
1,912 | https://www.mspb.gov/decisions/nonprecedential/McGowan_Val_DC-844E-22-0044-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VAL MCGOWAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-22-0044-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Johnson , Esquire, Winter Park, Florida, for the appellant.
James W. Mercier , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for disability retirement benefits. On petition for
review, the appellant, among other things, reasserts his entitlement to disability
retirement benefits and challenges the administrative judge’s determinations
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
regarding his credibility. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant claims that the administrative judge was biased
against him. Petition for Review (PFR) File, Tab 1 at 11. 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). 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 conduct on the
administrative judge’s part, and on that basis, we find that the appellant’s2
allegations do not overcome the presumption and do not meet the high standard
required to demonstrate bias.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Among the parties’ arguments on review are claims they raise for the first time despite
having had the opportunity to raise them below. For instance, the appellant claims that
the U.S. Navy records OPM submitted during the appeal constituted hearsay
“newspaper articles” upon which the administrative judge improperly relied. PFR File,
Tab 4 at 5. Meanwhile, OPM argues that the appellant’s claim to disability retirement
benefits should be denied based on the unclean hands doctrine. PFR File, Tab 3 at 6-7.
Because the parties raise these arguments for the first time on review without having
shown that they are based on new and material evidence not available despite due
diligence, we decline to consider them. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016 ). In any event, because hearsay is admissible in Board
proceedings and the appellant did not challenge the Navy records on appeal, the
administrative judge did not err in relying on them. See Borninkhof v. Department of
Justice, 5 M.S.P.R. 77, 83 (1981 ) (stating that hearsay evidence is admissible in
administrative proceedings). Further, in affirming the initial decision, we find that the
administrative judge appropriately denied the appellant’s claim to disability retirement
benefits without relying on the unclean hands doctrine.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | McGowan_Val_DC-844E-22-0044-I-1__Final_Order.pdf | 2024-04-02 | VAL MCGOWAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-22-0044-I-1, April 2, 2024 | DC-844E-22-0044-I-1 | NP |
1,913 | https://www.mspb.gov/decisions/nonprecedential/Leach_Robert_M_AT-0752-21-0199-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. LEACH,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-0752-21-0199-I-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
G
eorgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Christiann C. Burek , Esquire, and William T. Yon , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, except as to the
findings pertaining to the appellant’s sex discrimination claim, which we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
AFFIRM, 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-13 International Trade Specialist with
the International Trade Administration. Initial Appeal File (IAF), Tab 10 at 34.
Effective December 19, 2020, the appellant was removed from Federal service
based on the charge of conduct unbecoming, supported by 11 specifications of
what the agency characterized as inappropriate telephone conversations and email
messages with his supervisor, on three separate dates.2 Id. at 34-42; IAF, Tab 11
at 7-16. He subsequently filed a Board appeal challenging the merits of his
removal, and alleging disability and sex discrimination, as well as retaliation for
protected activity.3 IAF, Tab 1 at 5, Tab 17 at 5. After holding a hearing, the
administrative judge sustained the agency’s charge and denied the appellant’s
affirmative defenses of disability and sex discrimination. IAF, Tab 27, Initial
Decision (ID). The administrative judge did not address the appellant’s
retaliation claim. ID.
The appellant has filed a petition for review alleging, in part, that the
administrative judge erred because she “failed to consider the retaliatory nature of
the interactions or even evaluate the reprisal affirmative defense[] that was
2 The appellant was accused of, among other things, hanging up on his supervisor
several times, raising his voice to her, and accusing her of lying and being lazy. IAF,
Tab 11 at 12-16.
3 In his initial appeal, the appellant also alleged age discrimination. IAF, Tab 1 at 5.
However, the appellant, who was represented by counsel, did not include that
affirmative defense in his prehearing submission. IAF, Tab 17 at 5. In her list of the
issues set forth in the summary of the prehearing conference, the administrative judge
did not mention the affirmative defense of age discrimination, and, despite being
afforded the opportunity to do so and objecting to other matters, the appellant did not
object to the administrative judge’s exclusion of age discrimination. IAF, Tabs 23-24.
On review, the appellant does not complain about the administrative judge’s failure to
adjudicate his age discrimination claim, and thus, we discern no basis to address the
claim further. Petition for Review File, Tab 1.2
raised.” Petition for Review (PFR) File, Tab 1 at 5, 13-15. The agency
responded in opposition to the petition for review. PFR File, Tab 3.
ANALYSIS
In his initial appeal, the appellant alleged, among other things, that the
agency “engaged in retaliation against protected claims.” IAF, Tab 1 at 5.
Thereafter, in his statement of issues in his prehearing submission, he asserted
that one of the issues in the appeal was that “[t]he unlawful removal was [] a
result of retaliation based [on his] engagement in protected activities
(participatory and oppositional activities).” IAF, Tab 17 at 5. Despite the
appellant’s statements, in her prehearing conference summary, the administrative
judge, without explanation, excluded retaliation from the issues raised by the
appeal. IAF, Tab 23 at 3-12. The appellant then filed objections to the summary
regarding affirmative defenses and complained about the analytical framework for
claims of disability and sex discrimination, as well as retaliation. IAF, Tab 24
at 3. At the hearing, the appellant continued to raise his retaliation claim. See
generally Hearing Record (HR). Nevertheless, the administrative judge did not
address the retaliation claim in the initial decision. ID.
An adverse action is sustainable only if the appellant cannot establish his
affirmative defenses. Gath v. U.S. Postal Service , 118 M.S.P.R. 124, ¶ 10 (2012);
Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566, ¶ 10 (2010). On
review, the appellant has argued that the conduct alleged in some of the
specifications supporting the agency’s charge is the protected activity that serves
as the basis of his retaliation claim . PFR File, Tab 1 at 9-13. Accordingly,
because the agency’s charge and the appellant’s retaliation claim are inextricably
intertwined, it would be premature for the Board to consider the merits of the
charge, or whether the agency established nexus or the reasonableness of the
penalty, without making findings regarding the appellant’s retaliation claim. 3
The administrative judge is in the best position to address the retaliation
claim in the first instance. Soto v. Department of Veterans Affairs , 2022 MSPB 6,
¶ 19 (finding that the administrative judge, having heard the live testimony, is in
the best position to conduct additional proceedings); Bennett v. Department of
Justice, 119 M.S.P.R. 685, ¶ 11 (2013) (finding that the administrative judge was
in the best position to resolve a factual question in the first instance); Barnes v.
U.S. Postal Service , 49 M.S.P.R. 21, 26-27 (1991) (finding that the administrative
judge was in the best position to make credibility findings and remanding the
appeal for him to adjudicate the appellant’s discrimination claim). Accordingly,
we remand this appeal to the Atlanta Regional Office for the administrative judge
to fully address the appellant’s retaliation claim. On remand, the administrative
judge must have the appellant clarify the precise nature of his retaliation claim.4
The administrative judge must also determine whether the activity asserted by the
appellant is protected, address the effect of those claims, if any, on this appeal,
and may hold a supplemental hearing if she deems it necessary to adequately
develop the record. The remand 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 .5 Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980).
4 Based on the record, it is unclear whether the basis of the appellant’s retaliation claim
is the conduct alleged in some of the specifications, as alleged in his petition for
review, PFR File, Tab 1 at 9-13, and/or the appellant’s reports of harassment, as the
appellant testified to during the hearing, HR (testimony of the appellant).
5 The appellant has not challenged the administrative judge’s finding that he failed to
establish that his sex was a motivating factor in the agency’s action, and we see no
reason to disturb this finding on review. In his petition, however, the appellant does
argue that the administrative judge erred in finding that he had failed to prove his
disability discrimination defense. After the administrative judge issued the initial
decision in this appeal, the Board issued Pridgen v. Office of Management and Budget ,
2022 MSPB 31, clarifying the standards of proof applicable when adjudicating various
affirmative defenses. Therefore, on remand, the administrative judge should reconsider
the appellant’s disability discrimination claim under the standard set out in Pridgen.4
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 | Leach_Robert_M_AT-0752-21-0199-I-1_Remand_Order.pdf | 2024-04-02 | ROBERT M. LEACH v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-0752-21-0199-I-1, April 2, 2024 | AT-0752-21-0199-I-1 | NP |
1,914 | https://www.mspb.gov/decisions/nonprecedential/Keehr_Riley_C_CH-0752-19-0520-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RILEY C. KEEHR,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-19-0520-I-2
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
David D. Gorman , Springfield, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his 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
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. However, after full
consideration of the appellant’s appeal, we VACATE the initial decision, and
DISMISS the appeal for lack of jurisdiction.
BACKGROUND
The following facts are undisputed unless otherwise indicated. The
appellant is employed as a dual status military technician with the Illinois Army
and Air National Guard. Keehr v. Department of the Army , MSPB Docket
No. CH-0752-19-0520-I-1 Initial Appeal File (IAF) Tab 5 at 12. As a dual status
military technician, as defined in 10 U.S.C. § 10216(a), he was required to be a
member of the National Guard. Id. at 5, 12; see 32 U.S.C. § 709(b). On May 30,
2019, the Governor of Illinois and the Adjutant General of the Illinois National
Guard ordered the appellant to State Active Duty (SAD) to help protect
communities along the Illinois and Mississippi rivers from rising flood waters.
IAF, Tab 5 at 5, Tab 8 at 15-16. The order indicated that the appellant’s effective
dates of SAD were from May 30, 2019, through June 9, 2015.2 IAF, Tab 8 at 15.
On June 9, 2019, while on SAD, the appellant was arrested by local police
for an incident that occurred during the early morning hours of that day and was
ultimately charged with aggravated battery and battery, two crimes under Illinois
2 The record includes two SAD orders dated the same day. IAF, Tab 8 at 15-16. One
provides that the effective dates of the service are from May 30, 2019, through June 14,
2019, and the second SAD order shows the effective dates of the appellant’s service as
from May 30, 2019, through June 9, 2019. Id. 2
law for which a sentence of imprisonment can be imposed. IAF, Tab 5 at 5-6,
Tab 6 at 7, Tab 7 at 30. Thereafter, the appellant was released from active
military duty. IAF, Tab 6 at 7, 9, 15. As a result, the agency proposed the
appellant’s indefinite suspension on July 9, 2019, based on a charge of conduct
unbecoming a National Guard technician, citing his June 9, 2019 arrest while on
SAD for “flood duty” with the Illinois National Guard. Id. at 7. Following a
response from the appellant, IAF, Tab 5 at 23, the deciding official sustained the
proposed action based on the reasons set forth in the proposal notice and imposed
the appellant’s indefinite suspension, effective August 9, 2019, id. at 12, 14.
The appellant timely filed an appeal of his indefinite suspension with the
Board, arguing that he was not guilty of any wrongdoing.3 IAF, Tab 1 at 4. The
appellant subsequently withdrew his initial request for a hearing, id. at 2;
Keehr v. Department of the Army , MSPB Docket No. CH-0752-19-0520-I-2
Appeal File (I-2 AF), Tab 12 at 1, and the administrative judge decided the appeal
on the written record, I-2 AF, Tab 13, Initial Decision (ID) at 1. In the initial
decision, the administrative judge discussed the circumstances under which an
agency may impose an indefinite suspension, noting that one such circumstance is
when the agency has reasonable cause to believe an employee has committed a
crime for which a sentence of imprisonment could be imposed. ID at 3 (citing
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 5 (2016)). She
concluded that the agency proved that it had reasonable cause to indefinitely
suspend the appellant, despite his decision to waive his right to a preliminary
hearing. ID at 4-5. She further found that the appellant’s suspension had an
ascertainable end, that it bore a nexus to the efficiency of the service, and that it
3 On October 1, 2019, the administrative judge dismissed the appellant’s initial appeal
without prejudice and with leave to refile after the final disposition of his criminal case.
IAF, Tab 13. On November 13, 2019, the appellant pled guilty to the charge of
disorderly conduct and was sentenced to 4 days incarceration with credit for the 2 days
he had served immediately following his arrest. Keehr v. Department of the Army ,
MSPB Docket No. CH-0752-19-0520-I-2, Appeal File (I-2 AF), Tab 4 at 6-11. On
November 15, 2016, the appellant refiled his appeal. I-2 AF, Tab 1. 3
was a reasonable penalty. ID at 5-7. Accordingly, she affirmed the appellant’s
indefinite suspension. ID at 8.
The appellant has filed a petition for review of the initial decision, wherein
he argues that his waiver of the preliminary hearing prevented the agency from
establishing reasonable cause and that, therefore, the agency’s indefinite
suspension action was improper. Petition for Review (PFR) File, Tab 1 at 4-5.
He further argues that, even if the agency had reasonable cause once he waived
his right to a preliminary hearing, it could not show that it had reasonable cause
to indefinitely suspend him at the time it proposed the action, which was before
the appellant waived the preliminary hearing. Id. at 5. The agency has responded
to the appellant’s petition for review. PFR File, Tab 3. While the appellant’s
petition for review was pending before the Board, the Board recognized that there
may be a question of whether it has jurisdiction to hear this matter in the first
instance, explained to the parties the question at issue, and provided them with an
opportunity to brief the jurisdictional question. PFR File, Tab 4. Both parties
filed submissions on the question of jurisdiction. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the initial decision and dismiss the appellant’s appeal for lack of
jurisdiction under 32 U.S.C. § 709.
As a limited jurisdiction tribunal whose authority to act is derived from
statute and regulation, the Board is obligated to satisfy itself that it has
jurisdiction over the action before it. See Cooley v. U.S. Postal Service ,
68 M.S.P.R. 353, 357 (1995). The Board will not act when it lacks statutory or
regulatory authority and may raise the matter of jurisdiction at any time in the
proceedings. Id. We, therefore, examine the issue of whether the action being
appealed in the first instance, here, the appellant’s indefinite suspension, is within
our jurisdiction. See id.
In Dyer v. Department of the Air Force , the U.S. Court of Appeals for the
Federal Circuit explained that the National Defense Authorization Act for Fiscal4
Year 2017 amended existing law to provide that dual status military technicians,
such as the appellant, may appeal an adverse action under chapter 75 to the Board
only when their appeals do not concern “activity occurring while the member is in
a military pay status” or “fitness for duty in the reserve components.” 971 F.3d
1377, 1381-82 (Fed. Cir. 2020); see 32 U.S.C. § 709(f)(4)-(5), (g). In an order
regarding jurisdiction, the Acting Clerk of the Board informed the parties that,
because it was undisputed that the appellant was on SAD by order of the
Governor of Illinois and the Adjutant General between May 30, 2019, and June 9,
2019, and the appellant was arrested while on SAD on June 9, 2019, it appeared
the Board may lack jurisdiction based on his military pay status under 32 U.S.C.
§ 709(f)(4).4 PFR File, Tab 4. After informing the appellant that he bears the
burden of establishing jurisdiction over his appeal, id. at 3 (citing 5 C.F.R.
§ 1201.56(b)(2)(i)(A)), the Acting Clerk of the Board issued an order for him to
submit evidence and argument regarding Board jurisdiction, id. The order also
instructed the agency to submit all evidence it had regarding jurisdiction, such as
pay records reflecting the appellant’s pay status for each day during the time
period in question and records showing the appellant’s military service status for
each day during the time period in question, and to submit argument on the
subject. Id.
The appellant responded to the Board’s order on jurisdiction, stating that,
because he was activated and served as part of the SAD, he was “not working in a
military pay status.”5 PFR File, Tab 5 at 4. He further states that he was
“working for the State and received his payment from the State.” Id. at 4-5. As
stated above, the appellant bears the burden of proof on jurisdiction. See 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Although the appellant asserts that he was not working in
a military pay status, it is undisputed that he was on SAD, and he has not
4 It does not appear that the question of jurisdiction was raised below.
5 The agency also responded to the order on jurisdiction, but it did not submit any of the
documentation requested by the Board. PFR File, Tab 6. 5
provided any evidence to support his assertion that being on SAD does not
constitute being in a military pay status, despite bearing the burden and having
been provided with the opportunity to do so. PFR File, Tab 5.
Further, the source of his payment—whether he was paid by the Federal
Government or the State of Illinois—is not relevant to the question of his pay
status under section 709. Indeed, subsection (j)(1) of section 709—the section
that sets forth the limited appeal rights for dual status technicians—defines
“military pay status” as “a period of service where the amount of pay payable to a
technician for that service is based on rates of military pay provided for under
title 37.” 32 U.S.C. § 709(j)(1) (emphasis added). Here, the agency indicated in
its response to the order regarding jurisdiction that the governing state provision
for the appellant’s SAD pay is 20 I.L.C.S. § 1805/49, which concerns “[a]ctive
service pay for enlisted personnel” for the Illinois’s Department of Military
Affairs.6 PFR File, Tab 6 at 4; see 20 I.L.C.S. § 1805/49. That provision
provides that “[w]hen in active service of the State, under orders of the
Commander-in-Chief, enlisted personnel of the Illinois National Guard shall
receive all pay as provided by law for enlisted personnel of the armed forces of
the United States of like grade and longevity.” See 20 I.L.C.S. § 1805/49. In
other words, the applicable statute for the appellant’s pay as a National
Guardsman for the State of Illinois provides that his pay rate for his service is
based on the same rates as the armed forces of the United States. See id. In the
U.S. Code, Title 37 governs pay and allowances of the uniformed services of the
United States. See 37 U.S.C. §§ 203, 206. Thus, because 32 U.S.C. § 709(j)(1)—
the section defining “military pay status”—defines that term as a period of
service for which an individual is paid based on the rates set forth in Title 37, we
find that the appellant’s pay for his National Guard service for the time period in
6 Because the applicable state statute is one that can be independently found and
verified, we take official notice of it. See 5 C.F.R. § 1201.64 (explaining that
“[o]fficial notice is the Board’s or judge’s recognition of certain facts without requiring
evidence to be introduced establishing those facts”). 6
question, as provided for in 20 I.L.S.C. § 1805/49, brings him within the
definition of “military pay status” as set forth in 32 U.S.C. § 709(j)(1). The
appellant’s assertion to the contrary, without any supporting evidence and a
dearth of analysis, does not overcome the plain meaning of the statutes.
PFR File, Tab 5 at 4. Accordingly, we find that the appellant has failed to prove
that he was not in a “military pay status” while on SAD and during the time
which the activity at issue in his appeal occurred, namely, his June 9, 2019 arrest.
Accordingly, he has failed to prove the Board’s jurisdiction over his appeal. See
32 U.S.C. § 709(f)(4)-(5), (g).
Based on the foregoing, we vacate the initial decision and dismiss the
appeal for lack of jurisdiction.
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
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 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 | Keehr_Riley_C_CH-0752-19-0520-I-2_Final_Order.pdf | 2024-04-02 | RILEY C. KEEHR v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-19-0520-I-2, April 2, 2024 | CH-0752-19-0520-I-2 | NP |
1,915 | https://www.mspb.gov/decisions/nonprecedential/Robbins_Charles_E_AT-0752-22-0188-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES EDWARD ROBBINS,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
AT-0752-22-0188-I-1
DATE: April 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Charles Edward Robbins , Knoxville, Tennessee, pro se.
Alexander Borman , Esquire, and Amy Sirignano , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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 appellant’s
involuntary retirement appeal as settled and entered the settlement agreement into
the record for enforcement purposes. For the reasons discussed below, we
GRANT the petition for review and the cross petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant retired from his position as a GS-13 Auditor, effective
October 31, 2020. Initial Appeal File (IAF), Tab 9 at 4. On January 19, 2021,
the appellant filed an Equal Employment Opportunity complaint alleging that the
agency discriminated against him on the basis of his disability and subjected him
to a hostile work environment, and that its actions forced him to retire. IAF,
Tab 8 at 46-50. The agency accepted his complaint and identified his alleged
involuntary retirement as a “mixed case issue.”2 Id. at 115-19. On January 10,
2022, the agency issued a final agency decision on the merits of the appellant’s
involuntary retirement claim, finding no discrimination. IAF, Tab 1 at 7-22. In
its decision, the agency informed the appellant that he could file a Board appeal
regarding his involuntary retirement claim. Id. at 21-22.
The appellant timely filed an appeal with the Board, IAF, Tab 1, and
requested a hearing, id. at 2, which the administrative judge duly set, IAF,
Tab 42. Before the scheduled hearing, the parties submitted a signed settlement
agreement, effective October 20, 2022, to the administrative judge. IAF, Tab 43
at 7-9. In pertinent part, the agreement provided that, among other things, the
appellant agreed to voluntarily withdraw “MSPB Case No. AT-0752-22-0188-I-1”
in exchange for a $10,000.00 payment from the agency. Id. The agreement also
provided for a 7-day revocation period. Id. at 8. On October 24, 2022, the
2 A mixed case arises when an appellant has been subject to an action that is appealable
to the Board, and he alleges that the action was effected, in whole or in part, because of
discrimination. Miranne v. Department of the Navy , 121 M.S.P.R. 235, ¶ 8 (2014). An
appellant has two options when filing a mixed case: he may initially file a mixed-case
complaint with the agency, followed by an appeal to the Board, or he may file a
mixed-case appeal with the Board and raise his discrimination claim in connection with
his appeal. Id. When an employee files a timely mixed-case complaint with the
agency, the employing agency must issue a final agency decision on the employee’s
discrimination claims and provide the employee with notice of his rights to file an
appeal with the Board. Id., ¶ 9; 29 C.F.R. § 1614.302(d)(3).2
administrative judge issued an initial decision canceling the hearing and
dismissing the appeal as settled. IAF, Tab 44, Initial Decision at 1-2.
The agency has filed a pleading titled “Reopening an Appeal Dismissed
Without Prejudice,” notifying the Board that the appellant rescinded the
settlement agreement. Petition for Review (PFR) File, Tab 1 at 1, 4. The Office
of the Clerk of the Board construed the pleading as a petition for review of the
initial decision. PFR File, Tab 2. The appellant has filed a cross petition for
review. PFR File, Tab 3. The agency has filed a response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the agency asserts that the appellant timely rescinded the
settlement agreement, wherein he voluntarily withdrew his appeal, and it requests
“any relief deemed proper.” PFR File, Tab 1 at 4. In the appellant’s cross
petition for review, he also asserts that he timely rescinded the settlement
agreement. PFR File, Tab 3 at 3. He also requests to reopen his appeal “and
proceed to a hearing at the earliest opportunity.” Id.
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 Servi ce,
113 M.S.P.R. 486, ¶ 7 (2010). Generally, the Board will not reinstate a
withdrawn appeal absent unusual circumstances, such as misinformation or new
and material evidence. Page v. Department of Transportation , 110 M.S.P.R. 492,
¶ 5 (2009). As previously explained, the parties’ settlement agreement is the
basis for the appellant’s withdrawal. IAF, Tab 43 at 7-9.
A settlement agreement is a contract between the parties and may only be
voided in limited circumstances, such as fraud, coercion, or mutual mistake.
Linares-Rosado v. U.S. Postal Service , 112 M.S.P.R. 599, ¶ 8 (2009). In
addition, events occurring after the purported settlement of an appeal can cast
doubt on the settlement’s validity. Id.; see Hazelton v. Department of Veterans3
Affairs, 112 M.S.P.R. 357, ¶ 11 (2009); DeLoach v. Department of the Air Force ,
108 M.S.P.R. 485, ¶ 11 (2008).
Although the appellant voluntarily withdrew his appeal, under the
settlement agreement, he retained the right to “rescind the agreement within a
seven-day period after execution,” i.e., by October 27, 2022. IAF, Tab 43 at 8.
The appellant states, and the agency agrees, that he timely revoked the settlement
agreement on October 27, 2022.3 PFR File, Tabs 1, 3. In circumstances such as
this, where an appellant has revoked a settlement agreement, the Board has
reopened or remanded the appeal. See Linares-Rosado , 112 M.S.P.R. 599, ¶ 11;
see also Jarosz v. Department of the Air Force , 107 M.S.P.R. 281, ¶ 6 (2007)
(determining that it was appropriate to reopen and reinstate the appellant’s appeal
after he revoked the settlement agreement under the agreement’s revocation
provision); Brown v. Department of Defense , 94 M.S.P.R. 669, ¶¶ 6-8 (2003)
(remanding the appeal for adjudication because the agreement was no longer valid
after the appellant revoked her consent under the terms of the agreement). Thus,
we find it appropriate to vacate the initial decision and remand the appeal for
further adjudication.
The administrative judge determined below that the appellant made a
nonfrivolous allegation of Board jurisdiction over his appeal sufficient to entitle
him to a hearing on his involuntary retirement claim. IAF, Tab 30 at 1.
Accordingly, on remand, the administrative judge should hold the appellant’s
requested hearing on the issue of whether his October 31, 2020 retirement was the
result of coercion based on intolerable working conditions and, therefore, a
constructive removal within the Board’s jurisdiction. See Vitale v. Department of
3 To the extent the administrative judge dismissed the appeal as settled and entered the
settlement agreement into the record before the expiration of the 7-day period in which
the appellant could revoke the agreement, ID at 1-2, he erred. See Brown v. Department
of Defense, 94 M.S.P.R. 669, ¶ 6 (2003). However, in view of our findings in this
decision, and the ultimate disposition, any such error did not prejudice the appellant’s
substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984).4
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). If, on remand, the
administrative judge determines that the Board has jurisdiction over this appeal as
a constructive removal, then the administrative judge shall adjudicate the
appellant’s affirmative defenses and order appropriate relief. IAF, Tab 1 at 2, 4;
see Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586, ¶ 46 (2009)
(noting that when the Board finds a resignation or retirement involuntary, the
Board not only has jurisdiction over the appeal, but the appellant wins on the
merits and is entitled to reinstatement).
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 | Robbins_Charles_E_AT-0752-22-0188-I-1__Remand_Order.pdf | 2024-04-02 | CHARLES EDWARD ROBBINS v. DEPARTMENT OF ENERGY, MSPB Docket No. AT-0752-22-0188-I-1, April 2, 2024 | AT-0752-22-0188-I-1 | NP |
1,916 | https://www.mspb.gov/decisions/nonprecedential/Nunley_Sandra_L_PH-0831-22-0078-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA LYNN NUNLEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-22-0078-I-2
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sandra Lynn Nunley , Huntington, West Virginia, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying the appellant’s application for survivor annuity benefits.2 On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The initial decision is dated June 29, 2022, and establishes a petition for review filing
deadline of August 3, 2022. Appeal File, Tab 7, Initial Decision at 1, 6. However, the
postmark date on the mailing envelope shows that the decision was mailed to the
appellant on July 19, 2022. Petition for Review (PFR) File, Tab 3 at 3, 5-6. The
petition for review, the appellant realleges that, among other things, her
now-deceased husband and she went to an office to file paperwork presumably
about benefits. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
appellant further avers that she received the decision on July 25, 2022, 6 days after
mailing. PFR File, Tab 1 at 3, Tab 3 at 3, 5, 9. Although these circumstances raise a
question concerning the timeliness of the appellant’s petition for review, see 5 C.F.R.
§ 1201.114(e), in light of our finding on the merits of the petition, we make no finding
regarding the timeliness issue.
3 We agree with the administrative judge’s finding that the appellant went with her now-
deceased husband to file paperwork with the Department of Veterans Affairs (DVA),
not OPM, which is a separate Government agency responsible for administering totally
different programs than DVA. While we are sympathetic to the appellant’s situation,
the Board does not have the authority to waive statutory requirements that Congress has
imposed as a condition to the payment of Federal funds. Schoemakers v. Office of
Personnel Management , 180 F.3d 1377, 1382 (Fed. Cir. 1999).2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7
DECISION CASE CITES LISTING
Sandra Lynn Nunley v. Office of Personnel Management
Docket No. PH-0831-22-0078-I-2
Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017) ................................ 4
Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017)
Schoemakers v. Office of Personnel Management, 180 F.3d 1377, 1382 (Fed. Cir.
1999)............................................................................................................................. 2
Schoemakers v. Office of Personnel Management, 180 F.3d 1377 (Fed. Cir.
June 22, 1999) (No. 98-3144)
THIS CITE CHECK CONDUCTED BY ___________________ ON June 26,
2023.8 | Nunley_Sandra_L_PH-0831-22-0078-I-2__Final_Order.pdf | 2024-04-02 | SANDRA LYNN NUNLEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-22-0078-I-2, April 2, 2024 | PH-0831-22-0078-I-2 | NP |
1,917 | https://www.mspb.gov/decisions/nonprecedential/Nemerow_DarinCH-0752-18-0202-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARIN NEMEROW,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-18-0202-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Katherine Stewart and Meredith Ann McHugh , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
sustained his removal from the agency for various acts of misconduct. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant worked for the agency’s Bureau of Alcohol, Tobacco,
Firearms and Explosives as a GS-14 Supervisory Criminal Investigator.
Initial Appeal File (IAF), Tab 7 at 28. Effective January 10, 2018, the agency
removed the appellant under chapter 75 of title 5 of the United States Code based
on the charges of sexual misconduct, willful misuse of a government-owned
vehicle (GOV), and lack of candor. Id. at 28-39.
The appellant appealed his removal to the Board and withdrew his hearing
request. IAF, Tab 1, Tab 28 at 3. In his appeal, the appellant conceded that he
engaged in the charged sexual misconduct and willful misuse of a GOV, but
argued that he did not lack candor and that his removal penalty was too severe.
IAF, Tab 29 at 4-5, Tab 39 at 5-18. The administrative judge issued an initial
decision based on the written record, sustaining the two specifications included in
the sexual misconduct charge and the single specification of the willful misuse of
a GOV charge. IAF, Tab 41, Initial Decision (ID) at 6-8. The administrative
judge found that the agency proved one of the two specifications of the lack of2
candor charge, but still sustained the overall charge.2 ID at 8-11.
The administrative judge also found a nexus between the sustained charges and
the efficiency of the service and that the appellant’s removal penalty was
reasonable. ID at 11-16. The appellant’s petition for review followed. Petition
for Review (PFR) File, Tab 1. The agency responded in opposition and the
appellant filed a reply to the agency’s response. PFR File, Tabs 3, 5.
In an appeal before the Board of a removal taken under chapter 75, an
agency bears the burden to prove by preponderant evidence the charged
misconduct, a sufficient nexus between the charge and the efficiency of the
service, and that the imposed penalty is reasonable under the circumstances. See
5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Gonzalez v. Department of Homeland
Security, 114 M.S.P.R. 318, ¶ 11 (2010) (quoting Pope v. U.S. Postal Service ,
114 F.3d 1144, 1147 (Fed. Cir. 1997)). Upon review, we find that the
administrative judge correctly held that the agency met its burden in proving each
of these requisites. We discern no reason to disturb the initial decision, as the
administrative judge considered the parties’ arguments, applied the appropriate
legal standards, and drew proper conclusions that are supported by the evidence
of record. ID at 1-16.
On review, the appellant argues that the administrative judge erred when
holding that the agency proved the lack of candor charge. PFR File, Tab 1
at 5-12, Tab 5 at 4-5. In the single upheld specification under this charge, the
agency alleged that the appellant provided less than candid information regarding
his misuse of a GOV when during a sworn interview with agency investigators, he
denied driving a GOV to a bar while off-duty in March 2017. IAF, Tab 9 at 42,
44. In order to prove lack of candor, an agency must show: (1) the employee
gave incorrect or incomplete information, and (2) did so knowingly. Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016); see Parkinson v.
2 Specification 1 of the lack of candor charge was not sustained. ID at 9-11. Neither
party disputes this finding on review. Petition for Review (PFR) File, Tabs 1, 3, 5. 3
Department of Justice , 815 F.3d 757, 766 (Fed. Cir. 2016) (holding that lack of
candor requires that information is conveyed “knowing” that such information is
incomplete or incorrect), aff’d in part and rev’d in part by 874 F.3d 710, 712
(Fed. Cir. 2017) (en banc).
The appellant claims that he did not knowingly provide incorrect
information to the agency during his sworn interview; rather, he states that the
questions asked to him were unclear and that he was answering them in good
faith. PFR File, Tab 1 at 5-12, Tab 5 at 4-5. A review of the interview transcript
establishes that the agency’s investigators asked the appellant unambiguous
questions about the incident. IAF, Tab 12 at 25-27. Through his responses, the
appellant demonstrated an understanding of the topic that he was being
questioned about, as he provided details, including confirming that the evening in
question started at another establishment, the location of the second bar that he
went to, and the identity of the agency employee who accompanied him.
Id. at 25-26. The appellant told agency investigators twice during this interview
that he did not drive a GOV to the second bar. Id. at 27. Specifically, the
agency’s investigator asked the appellant, “[d]id you drive your GOV to that
bar?” Id. The appellant responded, “[n]o.” Id. In a follow-up to a related
question, the appellant stated, “I, I did not drive my GOV.” Id. Later in the same
day, the appellant then admitted to the agency’s investigators that he did in fact
drive a GOV to two bars while off -duty, contradicting his earlier responses.
Id. at 75-76. The appellant was asked, “[d]id you or did you not drive your
GOV? Please.” Id. at 75. The appellant responded with, “I believe I did, yes.
Yeah.” Id. The agency’s investigator followed-up by asking the appellant,
“. . . you were in your GOV when you left Cowboy Jack’s[?]” Id. at 76.
The appellant stated in reply, “[y]es.” Id.
The contradiction between the appellant’s initial responses to the agency’s
investigators denying his misuse of a GOV, and his admission of such misuse
later in the same day, indicate that he must have known that he was providing4
inaccurate information at the onset. Furthermore, the interview with agency
investigators occurred approximately 3 months after the incident. Id. at 15, 25. It
is highly unlikely that the appellant was confused about the incident that he was
being questioned about or that he had forgotten that he drove a GOV given the
fact that he outlined other details about the evening. The appellant also stated
that he routinely drove his personal vehicle to off-duty events, which should have
made the occasion in which he drove a GOV to one even more memorable.
IAF, Tab 12 at 77, Tab 39 at 19. The appellant admitted that he knew that he
misused a GOV when he drove it to a bar and consumed alcohol, further
evidencing an understanding of why agency investigators sought information
from him on the matter. IAF, Tab 12 at 80-81. The evidence supports the
administrative judge’s finding that the agency proved by preponderant evidence
that the appellant lacked candor as alleged in the upheld specification.3
See Ludlum v. Department of Justice , 87 M.S.P.R. 56, ¶ 17 (2000) (finding that
the agency proved that the appellant lacked candor because he did not respond
fully and truthfully in a statement made to agency investigators), aff’d, 278 F.3d
1280 (Fed. Cir. 2002).
In his petition for review, the appellant also claims that his removal was
not a reasonable penalty under the circumstances. PFR File, Tab 1 at 12-17,
Tab 5 at 5-6. The Board will review an agency -imposed penalty only to
determine if the agency considered the relevant factors and exercised
management discretion within the tolerable limits of reasonableness . Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981). When all of the agency’s
charges are sustained, but some of the underlying specifications are not sustained,
3 The administrative judge found that the agency only proved one of the two lack of
candor specifications. ID at 8-11. When more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge. Burroughs v. Department of the Army ,
918 F.2d 170, 172 (Fed. Cir. 1990 ). Here, as the administrative judge found, the record
is sufficiently developed to determine that the agency proved the overall charge.
ID at 8. 5
the agency’s penalty determination is entitled to deference and should be
reviewed only to determine whether it is within the parameters of reasonableness.
Parker v. U.S. Postal Service , 111 M.S.P.R. 510, ¶ 8, aff’d, 355 F. App’x 410
(Fed. Cir. 2009). This is because the agency has primary discretion in
maintaining employee discipline and efficiency. Thomas v. U.S. Postal Service ,
96 M.S.P.R. 179, ¶ 4 (2004). The Board will not displace management’s
responsibility in this respect, but will instead ensure that managerial judgment
has been properly exercised. Id.
Here, the administrative judge appropriately found that the deciding
official took into account the relevant Douglas factors, including those of a
mitigating nature, when concluding that the appellant’s removal was a reasonable
penalty. ID at 12-16. In particular, the appellant’s 14 years of service with the
agency with no prior disciplinary history, his accomplished work performance,
and multiple positive character references weighed in his favor. IAF, Tab 7 at 36;
ID at 14. However, among the stronger aggravating factors were the serious
nature of the proven misconduct, the direct relationship between the proven
misconduct and the appellant’s job responsibilities, the appellant’s slim
rehabilitative potential, and the negative impact the appellant’s proven
misconduct had on the agency’s working relationship with another law
enforcement agency. IAF, Tab 7 at 36-37; ID at 13-16. In addition, removal was
in line with the agency’s table of penalties for the committed offenses.
IAF, Tab 12 at 115, 120, 124. As determined by the administrative judge, the
deciding official properly exercised his judgment when reaching the removal
decision. ID at 16;4 see Penland v. Department of the Interior , 115 M.S.P.R. 474,
¶ 7 (2010).
The penalty of removal given the gravity of the proven misconduct
committed by the appellant, who was a law enforcement officer in a supervisory
4 The administrative judge referenced the position of the deciding official that the
appellant’s proven sexual misconduct was sufficient alone to justify removal.
IAF, Tab 7 at 37; ID at 14. 6
position, does not exceed the maximum limits of reasonableness. This holding
aligns with Board precedent, which has found removal as a reasonable penalty for
unauthorized use of a GOV. Garcia v. Department of the Air Force , 34 M.S.P.R.
539, 541-42 (1987). Relatedly, removal has been deemed reasonable where an
employee engaged in lack of candor and inappropriate conduct. Kamahele v.
Department of Homeland Security , 108 M.S.P.R. 666, ¶¶ 2, 15 (2008).
Similarly, the Board has concluded that removal was proper in view of, inter alia,
an employee’s supervisory position and the seriousness of proven sexual
misconduct. Cisneros v. Department of Defense , 83 M.S.P.R. 390, ¶¶ 19-20
(1999), aff’d, 243 F.3d 562 (Fed. Cir. 2000) (Table).
In closing, the appellant’s arguments on review mirror those that he set
forth before the administrative judge. IAF, Tab 39 at 5-18; PFR File, Tab 1
at 5-17, Tab 5 at 4-6. As outlined above, the administrative judge detailed these
arguments and considered each when reaching the appropriate conclusions of the
initial decision. ID at 11-16. We have long held that mere reargument of the
same issues heard and correctly decided by the administrative judge, with nothing
more, does not constitute a basis to grant a petition for review. See Hsieh v.
Defense Nuclear Agency , 51 M.S.P.R. 521, 524 -25 (1991), aff’d, 979 F.2d 217
(Fed. Cir. 1992) (Table).
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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Nemerow_DarinCH-0752-18-0202-I-1 Final Order.pdf | 2024-04-02 | DARIN NEMEROW v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-18-0202-I-1, April 2, 2024 | CH-0752-18-0202-I-1 | NP |
1,918 | https://www.mspb.gov/decisions/nonprecedential/Smith_Michele_A_DE-0831-16-0422-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELE A. SMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0831-16-0422-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michele A. Smith , Denver, Colorado, pro se.
Lesley Gordon , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying credit for portions of her Federal service in the calculation of her
retirement annuity under the Civil Service Retirement System (CSRS). For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons 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).
BACKGROUND
Effective September 30, 2014, the appellant retired under the CSRS from
Federal civilian service with the Department of the Air Force. Initial Appeal File
(IAF), Tab 1 at 10, Tab 7 at 30, 33, 39, 44. On July 1, 2016, OPM issued a
reconsideration decision calculating the appellant’s annuity benefit. IAF, Tab 1
at 1-4. The appellant timely appealed OPM’s final decision, and an
administrative judge issued an initial decision on September 27, 2016, affirming
OPM’s reconsideration decision. IAF, Tab 12, Initial Decision (ID) at 1, 7-8.
The initial decision included instructions that it would become final on
November 1, 2016, unless a petition for review was filed by that date. ID at 8.
On February 11, 2021, the appellant filed the petition for review currently
before us. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board
issued an acknowledgment letter, advising the appellant that her petition for
review was untimely filed and informing her that she must establish good cause
for the untimely filing. PFR File, Tab 2 at 1-2. To assist the appellant, the
Acting Clerk of the Board attached a form “Motion to Accept Filing as Timely
and/or to Ask the Board to Waive or Set Aside the Time Limit.” Id. at 2, 7-8.
The appellant did not respond to the acknowledgment letter or file such a motion.
The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the date of issuance, within 30 days
after the date she received the initial decision. 5 C.F.R. § 1201.l14(e). Here, the
initial decision was issued on September 27, 2016, and sent to the appellant, as a
registered electronic filer, by electronic mail on the same day. ID at 1; IAF,2
Tabs 4, 13. The appellant has not alleged that she received the initial decision
more than 5 days after the date of issuance; thus, the deadline to file a petition for
review was on November 1, 2016. PFR File, Tab 1; see 5 C.F.R. § 1201.14(m)
(2021) (providing that documents served electronically on registered e-filers are
deemed received on the date of their electronic submission). She filed her
petition for review in February 2021; therefore, her petition for review is
untimely by over 4 years. PFR File, Tab 1.
The Board generally will waive its filing deadline only upon a showing of
good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good
cause for an untimely filing, a party must show that she exercised due diligence
or ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). The Board will
consider the length of the delay, the reasonableness of her excuse and her
showing of due diligence, whether she is proceeding pro se, and whether she has
presented evidence of the existence of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to her inability to timely
file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
In this case, the appellant failed to respond to the Acting Clerk’s notice
providing her the opportunity to file an affidavit, evidence, and argument to show
either her petition was timely filed or good cause for the delay. The appellant’s
petition also contains no explanation of the delay. Although the appellant is pro
se, her filing delay of over 4 years is significant. Youngblood v. U.S. Postal
Service, 112 M.S.P.R. 136, ¶¶ 7-8 (2009) (finding a delay of over 2 years in the
filing a petition for review was “significant” and declining to excuse the
untimeliness of the petition, even considering the appellant’s pro se status).
Because the appellant failed to show that she exercised due diligence or ordinary3
prudence that would justify waiving the deadline for filing a petition for review,
we decline to do so in this case. See id., ¶ 8.
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 calculation of the appellant’s annuity benefits.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Smith_Michele_A_DE-0831-16-0422-I-1__Final_Order.pdf | 2024-04-02 | MICHELE A. SMITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-16-0422-I-1, April 2, 2024 | DE-0831-16-0422-I-1 | NP |
1,919 | https://www.mspb.gov/decisions/nonprecedential/Hammack_John_O_PH-0731-22-0268-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN ORVILLE HAMMACK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0731-22-0268-I-1
DATE: April 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Orville Hammack , Edgewood, Maryland, pro se.
Amanda L. Jordan , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed without good cause shown his appeal challenging the
final decision of the Office of Personnel Management finding him unsuitable for
Federal employment. On petition for review, the appellant repeats the arguments
he made below as to why he believes his appeal was timely. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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 | Hammack_John_O_PH-0731-22-0268-I-1__Final_Order.pdf | 2024-04-02 | JOHN ORVILLE HAMMACK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0731-22-0268-I-1, April 2, 2024 | PH-0731-22-0268-I-1 | NP |
1,920 | https://www.mspb.gov/decisions/nonprecedential/Stocks_Jay_R_DE-0752-18-0116-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAY R. STOCKS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-18-0116-I-1
DATE: March 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Stephen J. Stocks , Esquire, Moab, Utah, for the appellant.
Michael R. Tita , Esquire, and Roderick Eves , 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
affirmed his removal. On petition for review, the appellant argues that the
administrative judge erred by finding that he failed to prove that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
violated his right to due process. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review 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 | Stocks_Jay_R_DE-0752-18-0116-I-1__Final_Order.pdf | 2024-03-29 | JAY R. STOCKS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-18-0116-I-1, March 29, 2024 | DE-0752-18-0116-I-1 | NP |
1,921 | https://www.mspb.gov/decisions/nonprecedential/Stewart_Marvin_L_SF-3330-18-0074-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARVIN L. STEWART,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3330-18-0074-I-1
DATE: March 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marvin L. Stewart , Long Beach, California, pro se.
Thomas L. Davis , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998. On petition for review, the appellant argues that the
agency failed to credit him for all of his experience material to the positions for
which he applied. He also argues that the agency should have substituted 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).
Juris Doctor degree for the specialized experience required for the positions at
issue in this appeal and utilized its discretionary special hiring authorities, among
other purposes, to exempt him from the time-in-grade requirements listed in the
job announcements for those positions. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 In analyzing whether the appellant met the pertinent time-in-grade requirements, the
administrative judge cited 5 C.F.R. § 300.604(a), which addresses advancement to
positions graded GS-12 and above, instead of 5 C.F.R. § 300.604(b), which addresses
advancement to positions graded GS-6 through GS-11, like the positions at issue in this
appeal. Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 11; IAF, Tab 5 at 83,
134, 147. Although the record does not show whether the positions at issue here are
properly classified at 2-grade intervals as set forth in 5 C.F.R. § 300.604(b)(1), or at
1-grade intervals as set forth in 5 C.F.R. § 300.604(b)(2), the administrative judge
nevertheless correctly determined that the appellant lacks the 52 weeks of time in grade
necessary for the positions. ID at 11; IAF, Tab 5 at 86, 136, 150. This is because his
most recent service was at the GS-07 level, 4 grades lower than the GS-11 positions to
which he applied. IAF, Tab 1 at 1, Tab 5 at 174, 182. Nevertheless, the administrative
judge’s error is of no legal consequence because it did not adversely affect the
appellant’s substantive rights . Karapinka v. Department of Energy , 6 M.S.P.R. 124,
127 (1981). 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Stewart_Marvin_L_SF-3330-18-0074-I-1__Final_Order.pdf | 2024-03-29 | MARVIN L. STEWART v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3330-18-0074-I-1, March 29, 2024 | SF-3330-18-0074-I-1 | NP |
1,922 | https://www.mspb.gov/decisions/nonprecedential/Fass_Jason_S_DE-0752-17-0441-I-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON S. FASS,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-17-0441-I-2
DATE: March 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
J
ames R. Tanner , Esquire, Tooele, Utah, for the appellant.
Dustin W. Smith , Esquire, Hill Air Force Base, Utah, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision that
sustained his removal from the agency for various acts of misconduct and found
that he did not prove any of his affirmative defenses. For the reasons discussed
below, we GRANT IN PART and DENY IN PART the appellant’s petition for
review. We AFFIRM the following holdings from the initial decision: (1) the
agency proved the charges of careless performance of duties and disregard of a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
directive; (2) a sufficient nexus exists between these charges and the efficiency of
the service; (3) the appellant failed to prove his due process violation claims that
the administrative judge addressed in the initial decision; and (4) the appellant
did not prove his harmful procedural error affirmative defense. We VACATE the
initial decision’s findings related to (1) the lack of candor charge, (2) whether the
appellant made protected whistleblowing disclosures, (3) the analysis of the
factors set forth in Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999), and (4) the penalty determination. We FIND instead that (1) the
agency failed to prove the lack of candor charge, and (2) the appellant proved that
he made whistleblowing disclosures that were a contributing factor in the removal
action. Finally, we REMAND this appeal to the Denver Field Office to
(1) conduct a new Carr factor analysis and render a new conclusion on whether
the agency met its burden of proving by clear and convincing evidence that it
would have removed the appellant in the absence of his whistleblowing
disclosures, (2) address the appellant’s remaining due process violation claims,
and (3) reassess the reasonableness of the penalty.
BACKGROUND
The appellant worked as a General Schedule grade 11 Air Traffic Control
Specialist (Terminal) at the agency’s Hill Air Force Base in Utah. Fass v.
Department of the Air Force , MSPB Docket No. DE-0752-17-0441-I-1,
Initial Appeal File (IAF), Tab 9 at 13. In this position, the appellant supported
the 75th Operations Support Squadron, trained Air Traffic Controllers, and served
as a Watch Supervisor in the flight control tower at the base (Hill Tower).
Hearing Testimony (HT) (testimony of the appellant); Fass v. Department of the
Air Force, MSPB Docket No. DE-0752-17-0441-I-2, Appeal File (I-2 AF), Tab 4,
Initial Decision (ID) at 2. On May 5, 2017, the agency proposed the appellant’s
removal under chapter 75 of Title 5 of the U.S. Code, alleging three charges of2
misconduct (careless performance of duties, disregard of a directive, and lack of
candor). IAF, Tab 12 at 12-14.
Regarding the careless performance of duties charge, the agency alleged
that the appellant failed to maintain situational awareness of air traffic operations
on March 15, 2017, when he allowed a local controller that he was training in Hill
Tower to clear a military aircraft (RAID92) for takeoff without providing
RAID92 instructions to remain outside of Salt Lake City International Airport’s
Class B controlled airspace.2 Id. at 12. As a result, the appellant was unaware
that RAID92 then entered Class B controlled airspace without clearance. Id.
In the disregard of a directive charge, the agency alleged through three
specifications that the appellant failed to follow agency policy or instructions
when he did not maintain headset use during training, did not properly notify
management of the RAID92 incident, and failed to enter the RAID92 incident
into the daily log. Id. at 12-13. In the lack of candor charge, the agency alleged
through three specifications that the appellant gave incorrect or incomplete
information about the RAID92 incident. Id. at 13.
After the appellant provided written and oral replies to the proposed
removal, the deciding official sought written statements from witnesses who were
in Hill Tower during the RAID92 incident, along with the March 2017 Air Traffic
Control Operations Schedule. IAF, Tab 9 at 44-79. The deciding official
provided the appellant with these statements and schedule and gave him an
additional opportunity to provide an oral and/or written reply. Id. at 44-45.
The appellant then provided additional oral and written replies. Id. at 17-43.
Subsequently, the deciding official upheld each of the specifications and charges
and removed the appellant, effective August 25, 2017. Id. at 13-14.
2 The control tower at Salt Lake City International Airport was responsible for Class B
controlled airspace above 7,000 feet, which was subject to high aircraft traffic, mostly
from passenger planes departing from and landing at Salt Lake City International
Airport. HT (testimony of the appellant, the proposing official, the appellant’s
second-line supervisor, and the deciding official); ID at 11 n.2.3
On September 22, 2017, the appellant filed a Board appeal contesting his
removal, while also raising the affirmative defenses of reprisal for whistleblowing
disclosures, due process violations, and harmful procedural error. IAF, Tab 1,
Tab 16 at 4-20, Tab 25 at 11-17, Tab 28 at 4. A 4-day hearing was held.3 IAF,
Tabs 31, 33, 37, 39. At the conclusion of the hearing, the administrative judge
dismissed the appeal without prejudice, with an automatic refiling date, in order
for the parties to review the hearing record and submit closing briefs.
IAF, Tab 41 at 1-2. Following the refiling, the administrative judge issued an
initial decision finding that the agency proved the charges and upheld the
removal. ID at 10-19, 24 -27. The administrative judge also determined that the
appellant failed to meet his burden of proving any of his affirmative defenses.
Id. at 19-24.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 4-5.
ANALYSIS
In an appeal before the Board of a removal taken under 5 U.S.C. chapter
75, an agency bears the burden to prove by preponderant evidence the charged
misconduct, a sufficient nexus between the charge and the efficiency of the
service, and the reasonableness of the imposed penalty. Pope v. U.S.
Postal Service, 114 F.3d 1144, 1147 (Fed. Cir. 1997); see 5 U.S.C. §§ 7513(a),
7701(c)(1)(B).
3 The first 2 days of the hearing were held in-person and the final 2 days were held
telephonically. ID at 1. Telephonic testimony was taken from multiple witnesses,
notably the appellant and the deciding official. IAF, Tab 38. The Board has held that,
with certain limitations not relevant here, an appellant is entitled to an in-person
hearing but may avail himself of the opportunity for a telephonic hearing in lieu of an
in-person hearing. McGrath v. Department of Defense , 64 M.S.P.R. 112, 115 (1994).
The appellant made no argument before the administrative judge, or on review, that the
decision to hold the telephonic portion of the hearing was done over his objection.
To the contrary, the evidence shows that the appellant agreed to such a decision.
IAF, Tab 30 at 1, Tab 35 at 4. 4
Charges of misconduct
Upon review, we find that the administrative judge appropriately found in
the initial decision that the agency proved the charges of careless performance of
duties and disregard of a directive and that a sufficient nexus exists between both
of these charges and the efficiency of the service.4 ID at 10-17, 24-25.
The appellant’s arguments on review disputing these findings, including that he
was on an authorized break during the RAID92 incident, essentially mirror those
that he set forth before the administrative judge. I-2 AF, Tab 1 at 7-28; PFR File,
Tab 1 at 5-13. However, we discern no reason to disturb the administrative
judge’s findings on these matters, as they are supported by the evidence,
the inferences are appropriate, and the credibility determinations are
well-reasoned. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016) (finding no reason to disturb the administrative judge's findings where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions) ; Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). Thus, the initial decision is affirmed as to
the findings on these two charges and their nexus to the efficiency of the service.5
4 The administrative judge did not sustain the portion of the careless performance of
duties charge pertaining to the appellant failing to ensure that the trainee under his
supervision reminded RAID92 prior to takeoff to remain outside of controlled airspace.
ID at 12-13. Further, the administrative judge did not consider specification 2 of the
disregard of a directive charge, which alleged that the appellant failed to notify
management of the RAID92 incident, because the specific misconduct was not clearly
set forth in the proposal. ID at 15 n.6. Neither party disputes these findings on review,
and we find no reason to disturb them. Even though we affirm the administrative
judge’s decision not to sustain these specifications, the administrative judge still
properly found that the agency proved the careless performance of duties and disregard
of a directive charges. See Burroughs v. Department of the Army , 918 F.2d 170, 172
(Fed. Cir. 1990) (holding that where more than one event or factual specification
support a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge).
5 The appellant’s argument relating to the impropriety of the agency charging him with
unacceptable performance is misplaced, as unacceptable performance is not one of the
charges in this removal action. IAF, Tab 12 at 12-14; PFR File, Tab 1 at 9-10.5
The lack of candor charge consists of three specifications. The first
specification alleged that during a conversation with Salt Lake City International
Airport’s control tower, the appellant mischaracterized statements that Hill Tower
made to RAID92 and also failed to advise that Hill Tower made two
transmissions to RAID92 after the plane entered Class B controlled airspace.
IAF, Tab 12 at 13. The second specification alleged that the appellant failed to
inform his supervisor of all pertinent details regarding the RAID92 incident when
they spoke shortly after it occurred. Id. The final specification alleged that the
appellant, when questioned days later by management, provided incorrect
information regarding RAID92’s altitude and location during the incident. Id.
In his decision to sustain specifications 1 and 2 of the lack of candor charge
and the charge itself, the administrative judge assessed the appellant’s alleged
misconduct to see if the agency proved that his statements were “less than candid,
truthful, accurate, or complete, and involved deception.”6 ID at 8, 17-18.
We agree with the appellant’s argument on review that the administrative judge
committed an error by applying a broader definition of lack of candor and not the
elements for the charge that are set forth in Fargnoli v. Department of Commerce ,
123 M.S.P.R. 330 (2016). PFR File, Tab 1 at 14. I n Fargnoli, 123 M.S.P.R. 330,
¶ 17, the Board detailed that lack of candor requires proof of two elements:
(1) the employee gave incorrect or incomplete information, and (2) he did so
knowingly. When an agency affixes a labeled charge to the alleged misconduct,
as was done in the appellant’s case, it must prove the elements that make up the
legal definition of the charge. Hollingsworth v. Department of the Air Force ,
121 M.S.P.R. 397, ¶ 4 (2014). Thus, in order to meet its burden in proving that
the appellant lacked candor, the agency must meet the standard from Fargnoli.
We agree with the administrative judge that the appellant provided
incorrect and incomplete information as set forth in specifications 1 and 2 of the
6 The administrative judge did not uphold a portion of specification 1 and the entirety of
specification 3 of the lack of candor charge. ID at 18-19. Neither party disputes these
findings on review, and we discern no error in this regard.6
charge. ID at 17-18. We also concur with the administrative judge’s finding that
the evidence shows that the appellant lacked “actual knowledge” that the
information that he was providing was incorrect and/or incomplete. Id. When
applying these determinations, in conjunction with the standard as set forth in
Fargnoli, we find that the agency failed to prove these specifications and charge
by preponderant evidence because the appellant did not knowingly provide
incorrect or incomplete information, which is a necessary element to prove in
order for a lack of candor charge to be upheld. Therefore, we find that the agency
did not prove the lack of candor specifications or charge.
Affirmative defenses
In an appeal of a removal before the Board, an appellant bears the burden
to prove his affirmative defenses by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C). In this appeal, the appellant raised the affirmative
defenses of reprisal for whistleblowing disclosures, due process violations, and
harmful procedural error. IAF, Tab 16 at 4-20, Tab 25 at 11-17, Tab 28 at 4.
In the initial decision, the administrative judge found that the appellant did not
meet his burden in proving any of his affirmative defenses. ID at 19-24.
Whistleblower reprisal
The appellant alleged that the agency’s decision to remove him was taken
in reprisal for whistleblowing disclosures that he made. IAF, Tab 16 at 4-20,
Tab 25 at 11-12; HT (testimony of the appellant). An adverse or
performance-based action appealable to the Board, such as a removal, may not be
sustained if it is shown “that the decision was based on any prohibited personnel
practice described in [5 U.S.C. §] 2302(b).” 5 U.S.C. § 7701(c)(2)(B). Among
other things, section 2302(b)(8) prohibits reprisal against an employee for making
a whistleblowing disclosure, while section 2302(b)(9) prohibits reprisal for
engaging in protected activity. In order to prevail on the merits of this claim, an
appellant must prove by preponderant evidence that he made a whistleblowing7
disclosure as described under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action outlined in 5 U.S.C. § 2302(a). 5 U.S.C.
§ 1221(e)(1); Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015). If
an appellant meets his burden, then the Board shall order corrective action unless
the agency shows by clear and convincing evidence that it would have taken the
same personnel action in the absence of the whistleblowing disclosure and/or
protected activity. 5 U.S.C § 1221(e)(2); Ayers, 123 M.S.P.R. 11, ¶¶ 12, 27.
In the initial decision in this case, the administrative judge determined that
the appellant failed to establish that he made a whistleblowing disclosure.7
ID at 20-21. The administrative judge found in the alternative that even if the
agency perceived the appellant as a whistleblower, it proved by clear and
convincing evidence that it did not remove him based on such a perception.8 ID
at 21-22.
Protected whistleblowing takes place when an appellant makes a disclosure
that he 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. 5 U.S.C.
7 The appellant does not allege that he engaged in protected activity as described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
8 An appellant who is perceived as a whistleblower by an agency is still entitled to the
protection of the whistleblower protection statutes, even in the absence of a
whistleblowing disclosure. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 6
(2011). It does not appear that the appellant ever advanced a claim that the agency
perceived him as a whistleblower, so the administrative judge’s consideration of this
alternative argument was likely a typographical or administrative error that did not
prejudice the appellant. IAF, Tab 16 at 4-20, Tab 25 at 11-12; I-2; AF, Tab 1 at 36-44;
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). Nevertheless, as discussed further herein,
because we have found that the appellant proved that he made whistleblowing
disclosures that contributed to his removal, an assessment of whether the agency met its
clear and convincing burden is necessary.8
§ 2302(b)(8)(A); DeLeonardo v. Equal Employment Opportunity Commission ,
103 M.S.P.R. 301, ¶ 6 (2006). An appellant need not show that the matter
disclosed actually established a violation or other situation as described in
5 U.S.C. § 2302(b)(8)(A). DeLeonardo, 103 M.S.P.R. 301, ¶ 6. Instead, an
appellant must prove that the matter disclosed was one which a reasonable person
in his position would believe evidenced any of the situations set forth in 5 U.S.C.
§ 2302(b)(8). Id. The proper test for determining whether an appellant had a
reasonable belief that his disclosures revealed misconduct prohibited under the
whistleblower protection statutes is whether a disinterested observer, with
knowledge of the essential facts known to and readily ascertainable by an
appellant, could reasonably conclude that the disclosure describing the actions of
the government evidences wrongdoing as defined in 5 U.S.C. § 2302(b)(8).
Id. (citing Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999)).
The appellant’s disclosures consisted of multiple conversations that he had
with officials in his supervisory chain between April 2016 and May 2017 wherein
he expressed concerns with the delay in training of military personnel to serve as
Air Traffic Control Specialists. IAF, Tab 16 at 5-6, 16-17; Tab 25 at 11-12;
HT (testimony of the appellant). We disagree with the administrative judge’s
finding in the initial decision that these disclosures were not protected and were
merely expressions of policy disagreements. ID at 20. A reasonable person in
the appellant’s position, an Air Traffic Control Specialist with over a decade of
experience who also served as a Watch Supervisor, would conclude that the
appellant’s disclosures evidenced, among other things, a substantial and specific
danger to public health and safety, as the delays in training purportedly had
negative impacts on the staffing of Hill Tower, the fatigue of controllers, and the
safety of air traffic control at the base. IAF, Tab 16 at 5, 16. To further support
that such belief was reasonable, the appellant’s second-line supervisor, to whom
he made some of the whistleblowing disclosures, testified that the issues raised by
the appellant had merit. HT (testimony of the appellant’s second-line supervisor).9
Other witnesses testified that the delays in training were a common concern at the
base. HT (testimony of the appellant’s first-line supervisor, J.H.). As a result,
we vacate the administrative judge’s finding in the initial decision on this matter
and find instead that the appellant proved by preponderant evidence that he made
whistleblowing disclosures.
One way for an appellant to prove that a whistleblowing disclosure was a
contributing factor in a personnel action9 is the knowledge/timing test, which
includes evidence that the official taking the action knew of the disclosure and
that the action occurred within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor in the decision to
take the contested action. Mastrullo v. Department of Labor , 123 M.S.P.R. 110,
¶ 18 (2015). Here, the appellant began making whistleblowing disclosures to his
supervisors in April 2016, culminating in a disclosure made to the deciding
official on May 4, 2017. IAF, Tab 16 at 6, 16-17. The agency proposed the
appellant’s removal on May 5, 2017. IAF, Tab 12 at 12-14. The deciding official
issued his decision removing the appellant on August 25, 2017, which was less
than 4 months after he made a whistleblowing disclosure to him. IAF, Tab 9
at 14, Tab 16 at 17. Given this short period of time, a reasonable person could
conclude that the appellant’s whistleblowing disclosures had an impact on the
agency’s decision to remove him. Thus, the appellant satisfied the
knowledge/timing test. See Ontivero v. Department of Homeland Security ,
117 M.S.P.R. 600, ¶¶ 22-23 (2012) (holding that because the responsible agency
official knew of the appellant’s disclosures and only 4 months elapsed between
the disclosures and the personnel action, the appellant satisfied the
knowledge/timing test).
Because the appellant met his burden of proving that he made
whistleblowing disclosures that were a contributing factor in the agency’s
9 The appellant’s removal under chapter 75 is a personnel action as recognized under
5 U.S.C. § 2302(a)(2)(A)(iii). 10
decision to remove him, the analysis shifts to whether the agency proved by clear
and convincing evidence that it would have taken the removal action despite the
whistleblowing disclosures. Ayers, 123 M.S.P.R. 11, ¶ 12. 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. Carr, 185 F.3d at 1323. The Board does not view
the Carr factors as discrete elements; rather, they are weighed together to
determine if the evidence is clear and convincing as a whole. Elder v.
Department of the Air Force , 124 M.S.P.R. 12, ¶ 42 (2016).
The administrative judge analyzed the Carr factors in his alternate analysis
and found that the agency proved by clear and convincing evidence that it did not
remove the appellant based on any perception that he was a whistleblower.
ID at 21-22. In doing so, the administrative judge determined that the evidence
relevant to Carr factor 1 weighed in the agency’s favor, particularly due to the
fact that the agency met its burden in proving each of the charges of misconduct
laid out in the proposal and that removal was within the tolerable limits of
reasonableness. Id. at 21. Because on review we find that the agency did not
prove the lack of candor charge, the strongest charge in support of removal, the
evidence surrounding Carr factor 1 should be reevaluated. Further, in the
analysis of Carr factor 2, the administrative judge found that because the
deciding official was not involved in the training delay of military Air Traffic
Control Specialists, he had little, if any, motivation to retaliate against the
appellant for his whistleblowing disclosures. Id. Yet, it is undisputed that the
deciding official was the military officer in charge of the 75th Operations Support
Squadron at Hill Air Force Base during the relevant time period, and thus, was
likely involved in the training of military personnel to work as Air Traffic11
Control Specialists. HT (testimony of the deciding official); see Whitmore v.
Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (“[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.”). Lastly, when analyzing Carr factor 3,
the administrative judge found that the comparators were not similarly situated
because they did not lack candor like the appellant. ID at 22. Here, too, because
we do not sustain the lack of candor charge, the administrative judge’s analysis of
Carr factor 3 needs to be revisited.
Therefore, we vacate the Carr factor analysis contained in the initial
decision. On remand, the administrative judge shall conduct a new Carr factor
analysis consistent with this order and render a new conclusion on whether the
agency met its burden of proving by clear and convincing evidence that it would
have removed the appellant in the absence of his whistleblowing disclosures.
This may require the reopening of the record for additional argument and
evidence on the matter. See Agoranos v. Department of Justice , 119 M.S.P.R.
498, ¶ 33 (2013) (ordering the administrative judge to analyze the Carr factors on
remand due to the findings made on review).
Due process violations
A public employee has a property interest in his continued employment,
meaning the Federal government, as an employer, cannot deprive an employee of
such interest without due process. Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686, ¶ 7 (2014) (citing Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 538 (1985)). As outlined by the Supreme Court, the
essentials of due process in this context are notice of the reasons for discipline
and an opportunity to respond. Loudermill, 470 U.S. at 546. 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 material12
information; therefore, it is constitutionally impermissible to allow a deciding
official to receive additional material information that may undermine the
objectivity required to protect the fairness of the process. Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999).
The Board will consider the following factors, among others, to determine
whether an ex parte contact is constitutionally impermissible: (1) whether the
ex parte communication merely introduces “cumulative” information or new
information; (2) whether the employee knew of the error and had a chance to
respond to it; and (3) whether the ex parte communications were of the type likely
to result in undue pressure upon the deciding official to rule in a particular
manner. Id. at 1377.
Specifically, the appellant cites the following violations of his due process
rights: (1) the deciding official did not provide him with the questions asked of
witnesses when obtaining statements on the RAID92 incident; (2) the deciding
official did not advise him of conversations that he had with other management
officials regarding the charges of misconduct contained in the proposal; (3) the
deciding official did not advise him that he considered an agreement between
Salt Lake City International Airport and Hill Tower and an Air Force Instruction;
and (4) the deciding official improperly considered the Douglas factors, without
providing him notice of such consideration in his penalty determination. I-2 AF,
Tab 1 at 44-46; PFR File, Tab 1 at 24-26.
In the initial decision, the administrative judge correctly determined
regarding the first alleged due process violation that the failure to provide the
appellant with the questions that the deciding official asked of the witnesses when
obtaining statements on the incidents involved in the appellant’s removal was not
a due process violation. ID at 23-24. The questions were not new and material
information, and in reaching his decision, the deciding official only considered
the witnesses’ responses, which he indisputably provided to the appellant.
IAF, Tab 9 at 44-45. This finding is hereby affirmed. 13
However, the administrative judge did not address the appellant’s other
allegations of a due process violation. 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); 5 C.F.R. § 1201.111(b).
The administrative judge’s failure to address these allegations is an error. As a
result, on remand, the administrative judge should analyze these additional due
process violation claims. See Alarid v. Department of the Army , 122 M.S.P.R.
600, ¶ 7 (2015) (remanding an appeal to adjudicate the appellant’s affirmative
defenses when the administrative judge failed to do so).
Harmful procedural error
The appellant argued that the agency committed harmful procedural error
because the deciding official and other supervisors relevant to his removal were
not certified Air Traffic Control Specialists, meaning they were not familiar
enough with the mandates of the position to make informed decisions on the
appellant’s alleged misconduct. I-2 AF, Tab 1 at 46; PFR File, Tab 1 at 26-27.
The Board may not sustain an agency’s decision to impose an adverse action if an
appellant shows harmful error in the application of the agency’s procedures in
arriving at that decision. 5 U.S.C. § 7701(c)(2)(A); Doe v. Department of Justice ,
123 M.S.P.R. 90, ¶ 7 (2015). Harmful error cannot be presumed; an agency error
is harmful only where the record shows that the procedural error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. Doe, 123 M.S.P.R. 90, ¶ 7.
The administrative judge properly found in the initial decision that the
appellant failed to prove this affirmative defense. ID at 22-23. We agree.
The appellant did not cite to any requirement mandating that the deciding official
or other involved supervisors in this case be certified Air Traffic Control
Specialists. Notwithstanding, the administrative judge took into consideration the
fact that the deciding official was not certified in this field when analyzing his14
testimony and decision making on the careless performance of duties charge.
ID at 23. Therefore, we affirm the initial decision’s finding that the appellant
failed to prove harmful procedural error in this regard.
Penalty determination
When the Board sustains fewer than all of the charges, as here, it may
mitigate the penalty to the maximum reasonable penalty, so long as the agency
has not indicated in either its final decision or in proceedings before the Board
that it desires that a lesser penalty be imposed on fewer charges. Spencer v. U.S.
Postal Service, 112 M.S.P.R. 132, ¶ 8 (2009). In this case, the deciding official
stated that each charge standing alone warranted removal. IAF, Tab 9 at 14.
However, a reevaluation of the penalty must be done to determine if removal was
reasonable, especially due to the fact that lack of candor, the strongest charge in
support of removal, is no longer a consideration.
There are a few issues relating to an assessment of the relevant factors
under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), for
the administrative judge to consider. For example, the deciding official testified
that mitigating factors, such as the appellant’s 12 years of Federal service, lack of
a prior disciplinary history, and positive performance reviews, would have led
him to demote the appellant instead of removing him. HT (testimony of the
deciding official). However, the deciding official testified that he could not
demote the appellant because Air Traffic Control Specialist positions are now
filled by active military members, which the appellant is not. Id. It is not clear if
the deciding official considered demotion to another non-Air Traffic Control
Specialist position as an alternative sanction. Contrary to the administrative
judge’s holding in the initial decision, the Board has held that mitigation of a
penalty can include demotion to a position for which an employee is qualified,
even if it is a different position than the one the employee held when disciplined.
ID at 25-26; see, e.g., Fischer v. Department of the Treasury , 69 M.S.P.R. 614,
619 (1996) (finding that removal was unreasonable and mitigating the penalty to15
a demotion to a nonsupervisory position with the least reduction in grade and a
suspension). Moreover, it remains unclear whether the agency’s apparent policy
of how it fills Air Traffic Control Specialist positions, in the absence of any other
information that the policy is dictated by statute or regulation, is an appropriate
factor to consider under Douglas. Further, the deciding official’s position that
the appellant lacked rehabilitative potential, another Douglas factor, contradicts
his position that he would have demoted the appellant to a nonsupervisory
Air Traffic Control Specialist position had one been available. HT (testimony of
the deciding official).
Regarding disparate penalties, when others engaged in similar misconduct,
such as losing situational awareness in the control tower, the agency suspended
their various certifications and required retraining, but did not subject the
employees to chapter 75 adverse actions. IAF, Tab 25 at 40-41, Tab 26 at 26-29;
HT (testimony of the appellant’s first-line supervisor, P.S.). In addition, Board
precedent now dictates that the relevant inquiry for assessing a claim of disparate
penalties is whether the agency knowingly and unjustifiably treated employees
who engaged in the same or similar offenses differently. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 14 (2022).
The administrative judge is in a better position to evaluate these factors,
particularly in light of our conclusion to not sustain the lack of candor charge,
which was the most serious charge. See Downey v. Department of Veterans
Affairs, 119 M.S.P.R. 302, ¶ 14 (2013) (stating that the administrative judge was
in the best position to resolve the reasonableness of the penalty). We therefore
vacate the administrative judge’s penalty analysis contained in the initial
decision. On remand, the administrative judge should reassess the penalty
consistent with this order. The administrative judge has discretion to reopen the
record to take additional argument and evidence on this issue. See Berkey v. U.S.
Postal Service, 38 M.S.P.R. 55, 58-59 (1988) (remanding an appeal to the
administrative judge to reassess the penalty and noting that the parties shall be16
allowed to present additional argument and evidence concerning the penalty on
remand).
Issues with the hearing
In his petition for review, the appellant asserts that the administrative judge
denied him a fair and impartial hearing pursuant to 5 C.F.R. § 1201.41(b) when
he allowed the deciding official to serve as a technical representative to the
agency attorney, to be present during the hearing testimony of all of the
witnesses, and to testify after many of the agency’s witnesses testified. PFR File,
Tab 1 at 15-18. The appellant specifically alleges that (1) the deciding official’s
presence had a chilling effect upon the witnesses, many of who were subordinate
in rank;10 (2) the deciding official testified late in the hearing, and after observing
the testimony of many of the witnesses, improperly refreshed his recollection; and
(3) the deciding official’s testimony effectively served as rebuttal to every
witness that testified before him, as he had the opportunity to shape his testimony
to directly respond to previous testimony that he heard. Id. at 17-18.
Under 5 C.F.R. § 1201.41(b), Board judges are to conduct fair and
impartial hearings. When looking to the Board’s guidance on this topic,
sequestration of witnesses is the recommended practice; however, when a witness
serves in a representative capacity, he should testify first without the opportunity
to provide rebuttal testimony. Merit Systems Protection Board Judges Handbook,
Chapter 10 at 50-51, 54. For reasons that are not clear, the deciding official
testified on the third day of hearing, after many substantive witnesses, including
the appellant, already testified. IAF, Tab 38 at 2. We agree with the appellant
that this was an error.
However, the appellant has not submitted any evidence to substantiate his
claim that he was denied a fair and impartial hearing. The appellant had an
10 The deciding official’s military rank is Lieutenant Colonel. IAF, Tab 9 at 14, 16;
HT (testimony of the deciding official); ID at 2. A number of the witnesses at the
hearing were active duty military. IAF, Tab 28 at 5. 17
opportunity to cross-examine the deciding official and question other witnesses to
ascertain if the deciding official’s presence had a chilling effect on them.
The appellant also had the chance to question the deciding official on various
matters to challenge his credibility. Therefore, while the administrative judge
committed an error by allowing the deciding official to testify late in the hearing
after serving as a technical representative, we find that such error did not impact
the appellant’s substantive right to a fair and impartial hearing. 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).
ORDER
For the reasons discussed above, we affirm the following holdings of the
initial decision: (1) the agency proved the charges of careless performance of
duties and disregard of a directive; (2) a sufficient nexus exists between these
charges and the efficiency of the service; (3) the appellant failed to prove the
portion of his due process violation claims addressed by the administrative judge;
and (4) the appellant did not prove his harmful procedural error affirmative
defense. We vacate the initial decision’s findings related to (1) the lack of candor
charge, (2) whether the appellant made whistleblowing disclosures, (3) the Carr
factor analysis, and (4) the penalty determination. We find instead that (1) the
agency failed to prove the lack of candor charge, and (2) the appellant proved that
he made whistleblowing disclosures that were a contributing factor to the removal
action. Consistent with this order, we remand this case to the Denver Field
Office to (1) conduct a new Carr factor analysis and render a new conclusion on
whether the agency met its burden of proving by clear and convincing evidence
that it would have removed the appellant in the absence of his whistleblowing18
disclosures, (2) address the appellant’s remaining due process violation claims,
and (3) reassess the reasonableness of the penalty.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Fass_Jason_S_DE-0752-17-0441-I-2_Remand_Order.pdf | 2024-03-29 | JASON S. FASS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-17-0441-I-2, March 29, 2024 | DE-0752-17-0441-I-2 | NP |
1,923 | https://www.mspb.gov/decisions/nonprecedential/Brown_Robin_PH-0432-19-0213-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN BROWN,
Appellant,
v.
NATIONAL CREDIT UNION
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0432-19-0213-I-1
DATE: March 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robin Brown , Wilmington, Delaware, pro se.
Shamar R. Cowan , 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
dismissed her appeal as untimely filed without good cause shown for the delay.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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). 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.
BACKGROUND
By decision dated March 5, 2019, the agency removed the appellant
effective March 8, 2019, from her position of CU-12 Principal Examiner for
performance reasons under the provisions of 5 U.S.C. chapter 43. Initial Appeal
File (IAF), Tab 5 at 35-40. On April 10, 2019, the appellant filed the instant
Board appeal challenging her removal and indicating that she received the
agency’s decision on March 11, 2019. IAF, Tab 1 at 1, 6. The administrative
judge issued a timeliness order, stating that the appeal appeared to be untimely
and informing the appellant of the general timeliness standards. IAF, Tab 3
at 2-4. He ordered both the appellant and the agency to file evidence and
argument on the issue. Id. at 3-4. The appellant did not respond within the
deadline, and the agency moved to dismiss the appeal as untimely filed. IAF,
Tab 5. It submitted evidence showing that the decision letter was delivered to the
appellant’s home address via Federal Express on March 6, 2019. Id. at 42.
The administrative judge issued an initial decision dismissing the appeal as
untimely filed without good cause shown for the delay. IAF, Tab 7, Initial
Decision (ID). The administrative judge found that, because the appellant
received the agency’s decision before its effective date, the 30-day filing period2
began to run on March 8, 2019, the effective date of the removal. ID at 3. He
further found that the appellant failed to offer any evidence to show that the
appeal was timely filed or that good cause existed to justify a waiver of the filing
deadline. ID at 4.
The appellant has filed a petition for review, arguing that, although the
agency’s decision was delivered on March 6, 2019, she did not actually receive it
until March 11, 2019, because she had been traveling abroad. Petition for Review
(PFR) File, Tab 1 at 4-5. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
Under 5 C.F.R. § 1201.22(b)(1), an appeal must be filed no later than
30 days after the effective date of the action being appealed, or 30 days after the
date of the appellant’s receipt of the agency’s decision, whichever is later. In this
case, the filing date of the appeal, April 10, 2019, is undisputed. IAF, Tab 1;
see 5 C.F.R. § 1201.4( l) (“The date of filing by e-filing is the date of electronic
submission.”). Therefore, the timeliness issue hinges on the date that the
appellant received the agency’s decision, a matter which is in dispute and upon
which the appellant bears the burden of proof. See 5 C.F.R. § 1201.56(b)(2)(i)
(B).
In his initial decision, the administrative judge found that “[b]ecause the
appellant received the letter of decision on March 6, 2019, and the effective date
of her removal was March 8, 2019, the appeal deadline runs from her date of
removal.” ID at 3. However, the only evidence that the appellant received the
decision letter on March 6, 2019, was a Federal Express delivery notification
showing that the letter had been delivered to her address on that date.2 IAF,
Tab 5 at 42. Although this delivery notice created a rebuttable presumption that
2 Along with its response to the timeliness order, the agency submitted a copy of a
March 5, 2019 email from the deciding official to the appellant at her work email
address that included an “advance copy” of the decision letter. IAF, Tab 5 at 44. The
appellant, however, was on leave during this time, and there is no indication that she
was monitoring her work email. PFR File, Tab 1 at 5.3
the appellant received the letter on March 6, 2019, see 5 C.F.R. § 1201.22(b)(3),
the appellant rebutted this presumption by certifying on her appeal form that she
did not actually receive it until March 11, 2019,3 IAF, Tab 1 at 6; see Cabarloc v.
Department of Veterans Affairs , 110 M.S.P.R. 695, ¶¶ 7, 11 (2009) (finding that
the appellant’s statement on his appeal form as to the date of receipt of the
agency’s removal decision, coupled with supporting circumstantial evidence, was
sufficient to rebut the presumption of receipt in the due course of the mail). In
the absence of actual receipt of the agency’s decision on March 6, 2019, the
administrative judge effectively charged the appellant with constructive receipt
on that date.
Under 5 C.F.R. § 1201.22(b)(3), an appellant may be deemed to have
constructively received documents under certain circumstances. Little v. U.S.
Postal Service, 124 M.S.P.R. 183, ¶¶ 7-8 (2017). This regulation provides as
follows:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and correspondence which is properly addressed and sent to
the appellant’s address via postal or commercial delivery is presumed
to have been duly delivered to the addressee. While such a
presumption may be overcome under the circumstances of a
particular case, an appellant may not avoid service of a properly
addressed and mailed decision by intentional or negligent conduct
which frustrates actual service. The appellant may also be deemed to
have received the agency’s decision if it was received by a
designated representative or a person of suitable age and discretion
residing with the appellant.
5 C.F.R. § 1201.22(b)(3).
Thus, an appellant may be deemed to have received an agency’s decision
letter if actual receipt was frustrated by her intentional or negligent actions, or if
the decision letter was actually received by certain other persons. We find it
inappropriate at this time to charge the appellant with constructive receipt of the
3 The delivery notice specifically states “[s]ignature not required” and that the package
was “[l]eft at front door.” IAF, Tab 5 at 42.4
agency’s decision because the timeliness order, the initial decision, and the
agency’s filings did not apprise her of the applicable legal standard. IAF, Tabs 3,
5; ID. Before an appeal can be dismissed on timeliness grounds, the appellant
must receive notice of the specific timeliness issue presented by the
circumstances of her case. Farooq v. Corporation for National and Community
Service, 109 M.S.P.R. 73, ¶ 12 (2008).
Because the administrative judge dismissed the appeal on timeliness
grounds without affording this pro se appellant the required notice, we have
considered the evidence and argument that she has filed for the first time on
petition for review. See Hamilton v. Merit Systems Protection Board , 75 F.3d
639, 642, 646-47 (Fed. Cir. 1996) (considering evidence related to timeliness that
the appellant submitted for the first time on review when the initial decision was
the first notice she had of the delivery presumptions on which the administrative
judge relied in finding her appeal untimely). Reviewing the parties’ submissions,
it is apparent that neither one of them fully complied with the administrative
judge’s timeliness order. The appellant did not respond to the order at all, and
the agency provided only a portion of the relevant evidence in its possession.
IAF, Tab 3 at 4, Tab 5; PFR File, Tab 3. The Board now has a more complete
picture of the facts and circumstances surrounding the timeliness issue than the
one that was available to the administrative judge.
The record shows that the appellant maintains three different residences—
one in Delaware, one in Georgia, and one in Pennsylvania, although her Delaware
residence seems to be the primary one and was the address that she designated
with the agency for purposes of receiving the decision letter. PFR File, Tab 1
at 5, Tab 3 at 11. In addition to sending its decision letter to the appellant’s work
email on March 5, 2019, and by Federal Express to her Delaware address on
March 6, 2019, the agency also sent copies of the letter by mail to the appellant’s
Delaware, Georgia, and Pennsylvania addresses. IAF, Tab 5 at 45; PFR File,
Tab 1 at 5, 10, Tab 3 at 16. These letters arrived on or about March 8, 2019.5
PFR File, Tab 1 at 10, Tab 3 at 16. The Delaware letter was signed for by an
unidentified individual other than the appellant. PFR File, Tab 3 at 16. The
Georgia letter was not delivered because there was no authorized individual
available to receive it. PFR File, Tab 1 at 10. A notice was left on the door, and
the letter was returned to the local postal facility for pickup. Id. at 5, 10. The
appellant returned from her trip abroad and arrived at her Georgia residence later
that day. She discovered the notice shortly before midnight on Friday, March 8,
2019. Id. at 1. The appellant went to the post office and retrieved the letter the
following Monday, March 11, 2019. Id. at 5, 10.
The current record, therefore, appears to corroborate the appellant’s
statement on her appeal form that she did not actually receive the agency’s
decision letter until March 11, 2019. However, it may also support a finding of
constructive receipt prior to that date to the extent that the appellant was
negligent in failing to retrieve the Georgia decision letter from the post office at
her earliest opportunity, see Little, 124 M.S.P.R. 183, ¶¶ 7-10 & n.2 (finding an
appellant constructive received a document that he was expecting on the date it
was delivered to his post office box), or to the extent that either the Federal
Express delivery or the mailing to her address of record was received by a person
of suitable age and discretion residing with the appellant, see Marcantel v.
Department of Energy , 121 M.S.P.R. 330, ¶ 7 (2014) (concluding that an
appellant constructively received a removal decision sent to his address of record
and signed for by his father). Nevertheless, because the appellant had not
received specific notice of the precise timeliness issue in her case at the time she
filed her petition for review, and she has not yet had a full and fair opportunity to
litigate it, we decline to make any findings on the timeliness issue at this time.
See Wright v. Department of Transportation , 99 M.S.P.R. 112, ¶ 13 (2005)
(remanding an appeal for the administrative judge to give clear notice to an
appellant of the precise timeliness issue involved in his appeal). We find it most
appropriate to remand the appeal for the administrative judge to make these6
findings in the first instance after affording the parties an additional opportunity
to file evidence and argument relevant to the specific issues of timeliness
presented in this case.
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.7 | Brown_Robin_PH-0432-19-0213-I-1__Remand_Order.pdf | 2024-03-28 | ROBIN BROWN v. NATIONAL CREDIT UNION ADMINISTRATION, MSPB Docket No. PH-0432-19-0213-I-1, March 28, 2024 | PH-0432-19-0213-I-1 | NP |
1,924 | https://www.mspb.gov/decisions/nonprecedential/Hill_Donnell_E_DA-0752-17-0319-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNELL E. HILL,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-17-0319-I-1
DATE: March 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donnell E. Hill , Dallas, Texas, pro se.
Michael L. Salyards , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the absence without
leave charge and that the appellant failed to prove his affirmative defenses .
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).
Regarding the appellant’s affirmative defenses of discrimination and equal
employment opportunity (EEO) reprisal, the administrative judge found that the
appellant did not prove that a prohibited consideration was a motivating factor in
the agency’s removal action. Initial Appeal File, Tab 23, Initial Decision (ID)
at 19-22. The motivating factor standard applies to claims of reprisal for
engaging in activity protected under Title VII and the Age Discrimination in
Employment Act (ADEA). See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 20-22, 30. To the extent that the appellant claims reprisal for2
prior EEO activity based on Title VII or the ADEA, we see no error in the
administrative judge’s findings.1 ID at 19-22.
However, since the issuance of the initial decision in this matter, the Board
has recognized that a more stringent standard applies to retaliation claims based
on activity protected under the Rehabilitation Act, such that an appellant must
prove that his activity was a “but-for” cause of the retaliation . Desjardin v. U.S.
Postal Service, 2023 MSPB 6, ¶ 33; Pridgen, 2022 MSPB 31, ¶¶ 44-47. To the
extent that the appellant claims retaliation for prior disability -based EEO activity,
his failure to meet the lesser burden of proving that his protected activity was a
motivating factor in his removal necessarily means that he failed to meet the more
stringent “but-for” standard that applies to his claim. See Desjardin, 2023 MSPB
6, ¶ 33; Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 32.
Accordingly, we conclude that the appellant did not prove this affirmative
defense.
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).
1 The Board has clarified that the methods of proof for these claims are (1) direct
evidence; (2) circumstantial evidence; and (3) some combination of direct and indirect
evidence. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-24, 30
(clarifying Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), and Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 (2016)). No one method is the
exclusive path to a finding of liability. Id., ¶¶ 23. Here, although the administrative
judge discussed the distinction between direct and circumstantial evidence, there is no
allegation that he disregarded any type of evidence. ID at 19-22. Moreover, we find
that the administrative judge properly considered the documentary and testimonial
evidence as a whole in finding that the appellant did not prove this affirmative defense.
Id. Because we discern no error with the administrative judge’s motivating factor
analysis, we do not reach the question of whether discrimination or retaliation was a
“but-for” cause of the removal action. See Pridgen, 2022 MSPB 31, ¶ 20-22, 29-33.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement
Act of 2012 . This option applies to you only if you have raised claims of reprisal
for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected
activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your
judicial petition for review “raises no challenge to the Board’s disposition of
allegations of a prohibited personnel practice described in section 2302(b) other
than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or
(D),” then you may file a petition for judicial review either with the U.S. Court of
Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3
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.6
The court of appeals must receive your petition for review within 60 days of the
date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Hill_Donnell_E_DA-0752-17-0319-I-1 Final Order.pdf | 2024-03-28 | DONNELL E. HILL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-17-0319-I-1, March 28, 2024 | DA-0752-17-0319-I-1 | NP |
1,925 | https://www.mspb.gov/decisions/nonprecedential/Mottas_Anthony_J_DE-1221-18-0118-W-1_DE-1221-18-0195-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. MOTTAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
DE-1221-18-0118-W-1
DE-1221-18-0195-W-1
DATE: March 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Joseph Mottas , Crestview, Florida, pro se.
Zane Perry Schmeeckle , Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his joined individual right of action
(IRA) appeals. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these appeals, we conclude that 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
denying the appellant’s request for corrective action, as MODIFIED, by finding
that the appellant’s performance appraisal was a cognizable personnel action and
VACATING the administrative judge’s conclusion to the contrary.
BACKGROUND
¶2The following facts, as further detailed in the record below, are undisputed.
The agency appointed the appellant to the position of Advanced Medical Support
Assistant for the Eastern Kansas Health Care System in Junction City, Kansas, in
February 2017. Mottas v. Department of Veterans Affairs , MSPB Docket No.
DE-1221-18-0118-W-1, Initial Appeal File (0118 IAF), Tab 17 at 43. Later that
same year, in August 2017, the agency temporarily detailed the appellant to the
same position at a facility in Topeka, Kansas, while it convened an
Administrative Investigation Board (AIB) to consider allegations that he had
engaged in misconduct. Id. at 30-32. Among other things, the agency indicated
that the AIB would investigate complaints of the appellant intimidating staff, not
following procedures, and acting outside his scope of duties by trying to
supervise others. Id. at 31.
¶3Over the following months, the appellant filed two IRA appeals. 0118 IAF,
Tab 1; Mottas v. Department of Veterans Affairs , MSPB Docket No. DE-1221-18-2
0195-W-1, Initial Appeal File (0195 IAF), Tab 1. In pertinent part, the first
alleged that the AIB and detail assignment were the products of whistleblower
retaliation, while the second alleged that his subsequent performance appraisal
was also retaliatory. 0118 IAF, Tab 1 at 5; 0195 IAF, Tab 1 at 5, 11-12. The
administrative judge joined these appeals for adjudication. 0118 IAF, Tab 21;
0195 IAF, Tab 18.2
¶4After providing the appellant with an opportunity to do so, the
administrative judge found that the appellant met his jurisdictional burden for
some of the alleged disclosures, activities, and personnel actions he had raised.
0118 IAF, Tab 22 at 3-6, 8, 10-11; 0195 IAF, Tab 20 at 3-6, 8-10. Consequently,
he developed the record and held a 4-day hearing before issuing a decision that
denied the appellant’s request for corrective action. 0118 IAF, Tab 43, Initial
Decision (ID); accord 0195 IAF, Tab 39.
¶5Of the disclosures and activities that were within the Board’s jurisdiction,
the administrative judge found three protected. ID at 5-17. As described by the
appellant, they were as follows:
June 2, 2017 – Phone call to the Office of Compliance and Business
Integrity for an issue of untimely access to care standards at the
Junction City Community Based Outpatient Clinic by leadership
procedures.
June 6, 2017 – Sent email to [the] Compliance Officer asking about
block scheduling and cancellation of Veteran appointments within
the 45 day approval time standard.
July 26, 2017 – Email sent by me to . . . my Supervisor stating that
Physicians return to clinic orders were not being entered into the
computer system allowing medical support assistants to make follow
up appointments for Veterans after seeing their Physician prior to
leaving the clinic.
0118 IAF, Tab 5 at 5-6; ID at 7-9, 17. The administrative judge determined that
the first two constituted protected activity under section 2302(b)(9)(C), while the
2 For the most part, the records for the two separate IRA appeals mirror each other after
the date on which the administrative judge issued the joinder order. Accordingly, for
the sake of simplicity, this decision will oftentimes cite to just one of the records. 3
third constituted a protected disclosure under section 2302(b)(8). ID at 11-15.
He further found that the appellant proved that his protected activities were a
contributing factor to a single cognizable personnel action—the appellant’s detail
assignment. ID at 17-21. For the only other alleged personnel action over which
the appellant established jurisdiction—his performance appraisal—the
administrative judge found that, although the appellant proved that his protected
disclosure was a contributing factor, he did not prove that the performance
appraisal was a cognizable personnel action because it was not punitively low.
ID at 21-24.
¶6Because the appellant met his burden concerning his protected activity and
his detail assignment, the administrative judge shifted the burden to the agency.
Upon doing so, he found that the agency proved by clear and convincing evidence
that it would have taken the same personnel action in the absence of the protected
activity. ID at 24-31. He also presented alternative findings concerning the
appellant’s performance appraisal. Specifically, the administrative judge found
that, even if the appellant had proven that his performance appraisal was a
cognizable personnel action, the agency proved that it would have also taken that
same action in the absence of the appellant’s protected disclosure. ID at 31-32.
¶7The appellant has filed a petition for review for each of his appeals.
Mottas v. Department of Veterans Affairs , MSPB Docket No. DE-1221-18-0118-
W-1, Petition for Review (0118 PFR) File, Tab 1; Mottas v. Department of
Veterans Affairs , MSPB Docket No. DE-1221-18-0195-W-1, Petition for Review
(0195 PFR) File, Tab 1.3 The agency has filed an untimely response to the
appellant’s petitions, along with argument and evidence to explain its
untimeliness. 0118 PFR File, Tabs 3-4. The appellant filed a motion, arguing
that we should reject the agency’s response. 0118 PFR File, Tab 5. We find it
3 The appellant’s separate petitions largely mirror one another, but the latter contains a
couple of minor points that are not included in the former, so we will exclusively cite to
that petition. Compare 0118 PFR File, Tab 1 at 4-7, with 0195 PFR File, Tab 1 at 4-8. 4
unnecessary to consider the agency’s response or rule on whether the agency
presented good cause for its untimeliness.
ANALYSIS
¶8The appellant’s arguments on review are limited to ones concerning whether
the AIB constituted a personnel action, whether the agency proved that it would
have taken the same actions in the absence of his protected activity and
disclosure, whether the administrative judge timely issued the initial decision, and
whether the agency committed harmful error. 0195 PFR File, Tab 1 at 4-8.
Therefore, our analysis will be similarly focused.
¶9Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before the Office of Special Counsel and makes
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 by 5 U.S.C. § 2302(a). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes jurisdiction
over his IRA appeal, he is entitled to a hearing on the merits of his claim, which
he must prove by preponderant evidence.4 Id.
¶10If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence,5 that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established; it is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).5
Id. In determining whether the agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials involved in the decision; and (3) any evidence that
the agency takes similar actions against employees who are not whistleblowers,
but who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather, the Board will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. Phillips v. Department
of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). We are also mindful that
“[e]vidence only clearly and convincingly supports a conclusion when it does so
in the aggregate considering all the pertinent evidence in the record, and despite
the evidence that fairly detracts from that conclusion.” Whitmore v. Department
of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
The appellant failed to establish jurisdiction over the AIB as an additional
personnel action.
¶11The appellant suggests that the administrative judge erred by finding that he
failed to meet his jurisdictional burden concerning the agency’s AIB. 0195 PFR
File, Tab 1 at 5; 0118 IAF, Tab 22 at 10-11. We disagree.
¶12A “personnel action” is defined as follows: (i) appointments;
(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or
corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements;
(vi) restorations; (vii) reemployments; (viii) performance evaluations under
5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or
awards, or involving education or training if it reasonably may be expected to
lead to an appointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing
or examination; (xi) implementations or enforcements of any nondisclosure6
policy, form, or agreement; and (xii) any other significant changes in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); see Sistek v.
Department of Veterans Affairs , 955 F.3d 948, 954 (Fed. Cir. 2020) (recognizing
that “investigation” is “[n]otably absent” from the list of personnel actions).
¶13An investigation into an allegation of misconduct is not a personnel action
per se. Sistek, 955 F.3d at 955. Instead, the investigation must otherwise fit
within one of the items listed under section 2302(a)(2)(A) to constitute a covered
personnel action. Id. (noting that “a retaliatory investigation, either on its own or
as part of a broader set of circumstances, may qualify as a personnel action if it
rises to the level of a ‘significant change . . . in working conditions’”). However,
even if the investigation does not constitute a significant change in working
conditions or other personnel action enumerated in section 2302(a)(2)(A), the
Board will consider evidence of the conduct of an agency investigation when it is
so closely related to a personnel action that it could have been pretext for
gathering evidence to retaliate. Id. at 956-57 (discussing Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-24 (1997)). In considering such evidence, the
Board looks at where the investigation had its beginnings. Russell, 76 M.S.P.R.
at 324.
¶14The Board’s decision in Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658 (2008), is illustrative. The appellant in Mangano argued that
the administrative judge erred by finding that two investigations were not
personnel actions. Id., ¶ 36. The Board did not adopt the appellant’s position—
the Board did not find that the agency’s investigations were covered personnel
actions. Id., ¶¶ 36-44. Instead, the Board recognized that the investigations were
so closely related to the misconduct charge underlying the appellant’s removal
that they could have been pretext for gathering evidence to use to retaliate for his
whistleblowing. Id., ¶ 44. In doing so, the Board discussed how the one
investigation was convened by the subject of the employee’s whistleblowing and
was conducted in an unusual manner, and the agency included the results from the7
other investigation in its misconduct charge against the employee in a way that
was inconsistent with the investigatory results. Id. Under those circumstances,
the Board concluded that the appellant’s allegation of retaliation by investigation
should be considered in determining the strength of the agency’s evidence
supporting the appellant’s removal. Id. In other words, the alleged retaliation by
investigation was not a separate personnel action subject to its own
burden-shifting analysis. Instead, the Board would consider the alleged
retaliation by investigation as part of the burden-shifting analysis of a personnel
action that is enumerated in section 2302(a)(2)(A).
¶15Turning back to the instant appeal, the appellant acknowledged that the
agency informed him of the AIB and detail assignment simultaneously, explaining
that he would remain in the detail assignment until the AIB was complete. 0118
IAF, Tab 1 at 5, Tab 17 at 30-32. The administrative judge correctly determined
that the detail assignment did qualify as a personnel action, as defined in section
2302(a)(2)(A). 0118 IAF, Tab 22 at 10-11. Setting that personnel action aside,
the appellant did not present any allegations or evidence concerning any practical
or significant effects that the AIB had on the overall nature and quality of his
working conditions, duties, or responsibilities. Instead, he simply described the
AIB as retaliatory and asserted that the agency failed to comply with associated
requirements, including one concerning the speed with which the investigation
should be completed. E.g., 0118 IAF, Tab 1 at 5, Tab 5 at 4, 7, Tab 19 at 4-5.
Accordingly, we agree with the administrative judge. The appellant failed to
nonfrivolously allege that the AIB was a separate personnel action. He therefore
failed to establish jurisdiction over that claim.
The appellant is not entitled to corrective action regarding his detail assignment.
¶16Because the administrative judge found that the appellant met his burden of
proving that he engaged in protected activity that was a contributing factor in a
personnel action taken against him—the detail assignment—the agency had the
burden of proving, by clear and convincing evidence, that it would have taken the8
same personnel action in the absence of that protected activity. See supra ¶ 10.
The administrative judge relied upon the proper legal standard to conduct that
analysis. ID at 24-25. Among other things, he noted that 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. ID at 25; see supra ¶ 10.
¶17On review, the appellant argues that the administrative judge repeatedly
ignored evidence that detracted from his conclusion regarding each of the Carr
factors. 0195 PFR File, Tab 1 at 5-8. But the appellant’s arguments do not meet
the Board’s standards because he has not identified any specific and supportive
evidence from the record. See 5 C.F.R. § 1201.114(b) (providing that a petition
for review must state a party’s objections to the initial decision and must be
supported by references to specific references to the record); see also Weaver v.
Department of the Navy , 2 M.S.P.R. 129, 133 (1980) (observing that, before the
Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect, and identify the
specific evidence in the record which demonstrates the error). Nevertheless, we
will briefly discuss the administrative judge’s findings and the appellant’s
arguments about the same.
¶18Concerning the first Carr factor, the strength of the agency’s evidence in
support of its action, the administrative judge recognized various documents and
testimony that gave credence to the agency’s decision to convene the AIB and
detail the appellant away from his duty station. ID at 25-29. Generally speaking,
that evidence showed that the agency received various complaints regarding the
appellant’s conduct—complaints that matched the reasons the agency cited when
informing the appellant of the AIB and detail assignment—and the agency
responded in accordance with its policies. Id.; see, e.g., 0118 IAF, Tab 17
at 31, 34-35, Tab 35, Hearing Compact Disc, Day 2 (HCD2) (testimony of the9
Nurse Case Manager), Tab 36, Hearing Compact Disc, Day 3 (testimony of the
Director) (testimony of the Group Practice Manager).
¶19The appellant argues that several of the complaints against him were not
justified or were eventually dropped, and the final outcome of the agency’s
investigation could have detracted from the strength of the agency’s evidence had
the administrative judge not prevented him from eliciting associated testimony.
0195 PFR File, Tab 1 at 5. However, even if the appellant had identified
evidence establishing the same, we discern no basis for concluding that the
administrative judge’s apparent limitation on testimony amounted to an abuse of
discretion. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 12 (2013)
(explaining that an administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony he believes would be
irrelevant, immaterial, or unduly repetitious). The question at hand was not
whether the complaints were proven correct or whether they warranted discipline;
the question was whether the complaints warranted the agency’s decision to place
the appellant on a detail assignment as it investigated. To the extent that the
appellant presents other arguments about the first Carr factor and his detail
assignment, they are similarly unsupported by references to the record and
address matters that are of no apparent relevance to the legal question at hand.
0195 PFR File, Tab 1 at 5.
¶20For the second Carr factor, the existence and strength of any motive to
retaliate, the administrative judge made several findings. ID at 29-31. Most
notably, he found that the official responsible for placing the appellant on the
detail assignment—the Director—credibly testified that the appellant’s protected
activity did not upset him or cause him any sort of problem. ID at 29. But he
also found that this official had warned the appellant not to raise concerns outside
his chain of command, which suggested a slight motive to retaliate. ID at 29-30.
The administrative judge further noted that, although one other official—the
Chief of Staff—had a significant motive to retaliate, because the appellant’s10
protected activity implicated her, she had no involvement in the appellant’s detail
assignment. ID at 31.
¶21The appellant argues that the administrative judge failed to mention a
July 3, 2017 email from the Director, which asked the Chief of Staff to find
evidence of the appellant engaging in wrongdoing. 0195 PFR File, Tab 1 at 6.
But again, the appellant has failed to provide a citation or anything else to direct
us to this purported email. Supra ¶ 17. In another argument about the second
Carr factor, the appellant summarily asserts that the Director violated his privacy.
0195 PFR File, Tab 1 at 6. He also asserts that his direct supervisor was aware of
his disclosures and did nothing about them. Id. Although we have considered
these and each of the appellant’s other arguments regarding the second Carr
factor, none warrant disturbing the administrative judge’s conclusion about the
strength of officials’ motive to retaliate.
¶22For the third Carr factor, any evidence that the agency takes similar actions
against employees who are not whistleblowers, but who are otherwise similarly
situated, the administrative judge found that the Director testified that he had
similarly detailed one or two others who were subject to an AIB. ID at 31. The
administrative judge found this testimony credible but cursory. Id. He therefore
concluded that the third Carr factor weighed only slightly in the agency’s favor.
Id.
¶23On review, the appellant reiterates that it was the agency’s burden, yet the
agency provided no specific information about similarly situated individuals.
0195 PFR File, Tab 1 at 7. However, as we just mentioned, the administrative
judge recognized the same. The appellant also asserts that he did not receive
advanced notice of the agency’s witnesses, to prepare for and rebut the agency’s
testimony about the third Carr factor. Id. But the record reflects otherwise. The
agency specifically identified its requested witnesses and their expected testimony
in a prehearing submission, after which the administrative judge issued an order11
specifically identifying them again, months before the hearing. 0118 IAF, Tab 20
at 21-24, Tab 24 at 9.
¶24In sum, the appellant has presented a number of cursory arguments
regarding the agency’s burden of proof and his detail assignment. He has not,
however, identified any evidence to support his arguments or otherwise provided
any basis for us to disturb the administrative judge’s well-reasoned findings of
fact.
The appellant is not entitled to corrective action regarding his performance
appraisal.
¶25As we previously mentioned, the administrative judge made alternative
findings regarding the appellant’s performance appraisal. He first found that the
rating official had knowledge of the appellant’s protected disclosure in the
months leading up to the performance appraisal, satisfying the knowledge/timing
test for the contributing factor element. ID at 21. However, the administrative
judge found that the “fully successful” performance appraisal did not qualify as a
personnel action within the meaning of the whistleblower statute because the
appellant failed to establish that it was punitive. ID at 21-24. The administrative
judge then found that, even if the performance appraisal did constitute a personnel
action, the agency proved that it would have also taken that same action in the
absence of the appellant’s protected disclosure. ID at 31-32.
The administrative judge erred in finding that the appellant’s
performance appraisal was not a cognizable personnel action.
¶26On review, the appellant does not present any argument about the one
matter the administrative judge found lacking from his prima facie case of
reprisal, i.e., whether his performance appraisal constituted a cognizable
personnel action. Nevertheless, we vacate the administrative judge’s findings
about the same.
¶27In Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 16 (2013), the
Board considered whether an employee’s performance appraisal was a “personnel12
action,” within the meaning of the whistleblower statute when that
appraisal was similar to ones from the years before. The Board found that section
2302(a)(2)(A)(viii) specifically identifies a performance appraisal as a cognizable
personnel action, without any qualifying language that would require the
contested performance appraisal to be either less than satisfactory or tangibly
lower than a prior appraisal. Id. The same rationale can be extended to the
circumstances at hand. Although the administrative judge determined that the
appellant’s performance appraisal was not a personnel action because it was not
punitively lowered, the statute contains no such requirement. Therefore, the
appellant’s performance appraisal is a cognizable personnel action,
notwithstanding the fact that the agency rated him as “fully successful.”
The administrative judge correctly found that the agency met its
burden.
¶28Although the administrative judge erred in finding that the appellant’s
performance appraisal was not a personnel action, the appellant has not presented
any basis for us to disturb the administrative judge’s alternative findings about
the agency meeting its burden, and we found none. The appellant’s performance
appraisal included rating the appellant as “exceptional” in two critical elements
and “fully successful” in the third. 0118 IAF, Tab 17 at 24-28. Consistent with
the guidelines delineated in the performance appraisal, those individual ratings
resulted in an overall rating of fully successful. Id. at 28. Had the appellant
received an exceptional rating in the third critical element, customer service, he
would have received an overall rating of exceptional. Id.
¶29The customer service critical element required courteous and cooperative
interaction with staff, along with tactful and positive responses to requests,
among other things. Id. at 25. According to the administrative judge, the
Supervisory Medical Support Assistant credibly testified that the appellant did not
achieve an exceptional rating in this element because of the way he handled
certain interpersonal situations, including some that were both described in detail13
and unrebutted. ID at 23-24 (citing HCD2 (testimony of the Supervisory Medical
Support Assistant)). This is consistent with testimony from others who described
the appellant’s conduct, particularly his conduct towards coworkers. See supra
¶ 18. Therefore, the agency’s evidence in support of the agency rating the
appellant as fully successful, rather than exceptional, was quite strong.
¶30The only thing in the appellant’s petition for review that could be construed
as an argument to the contrary is an assertion that the agency failed to give the
appellant a mid-year review or any “written negative counseling” before the
performance appraisal. 0195 PFR File, Tab 1 at 5-6. But neither is
consequential. The absence of a mid-year review has no apparent relevance to the
veracity of the appellant’s end-of-year review, and we would not necessarily
expect prior written negative counseling to justify a fully successful, rather than
exceptional, performance rating.
¶31Turning to the second and third Carr factors, the administrative judge
recognized that the Supervisory Medical Support Assistant was both aware of the
appellant’s protected disclosure and responsible for rating the appellant’s
performance just months later. ID at 21. Yet he found that the Supervisory
Medical Support Assistant was not personally or professionally implicated in the
appellant’s disclosure. ID at 32. The administrative judge also noted that the
Supervisory Medical Support Assistant—whom he found credible—provided
testimony about other individuals in the appellant’s position receiving similar
ratings. Id. Ultimately, he concluded that the agency met its burden of proving,
by clear and convincing evidence, that it would have given the appellant the same
performance appraisal in the absence of his protected disclosure. Id.
¶32The appellant’s petition for review contains no other substantive argument
about his claim that the performance appraisal was retaliatory, except to generally
and correctly reiterate that it was the agency’s burden of proving otherwise. 0195
PFR File, Tab 1 at 6-7. In the absence of more, we find no basis for concluding
that the administrative judge erred in determining that the agency met its burden.14
The appellant’s remaining arguments are unavailing.
¶33On review, the appellant argues that the administrative judge erred by
suspending case processing several times and otherwise causing or allowing
delays in resolving his appeals. 0195 PFR File, Tab 1 at 4. However, he has
failed to identify any basis for us to determine that the delays were harmful, and
we found none. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127
(1981) (considering an appellant’s allegations of improper delays and explaining
that, if an administrative judge commits a procedural error, it is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights). The appellant also argues that the agency violated its own procedures
regarding AIB proceedings and therefore committed a harmful procedural error.
0195 PFR File, Tab 1 at 4-5 (citing 5 U.S.C. § 7701(c)(2)). According to the
appellant, the Director failed to meet a notice requirement, failed to meet a
deadline for completing the AIB, and then reopened the otherwise stalled AIB
shortly after he received a letter from the Equal Employment Opportunity
Commission regarding complaints of harassment. Id. However, the Board does
not have jurisdiction to hear a harmful procedural error claim in the context of the
IRA appeals before us. Salerno, 123 M.S.P.R. 230, ¶ 15. To the extent that the
argument could be construed as implicating issues that are properly before us, it
remains unavailing. The appellant has failed to identify any evidentiary support
for the AIB irregularities he alleges.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the17
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 of18
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Mottas_Anthony_J_DE-1221-18-0118-W-1_DE-1221-18-0195-W-1_Final_Order.pdf | 2024-03-28 | ANTHONY J. MOTTAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-18-2, March 28, 2024 | DE-1221-18-2 | NP |
1,926 | https://www.mspb.gov/decisions/nonprecedential/Stevens_Dayo_PH-0714-22-0158-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAYO STEVENS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-22-0158-I-1
DATE: March 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dayo Stevens , Georgetown, Delaware, pro se.
Nelda R. Davis , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his affirmative defense of national origin discrimination and implicitly
dismissed his removal appeal as moot. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based 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 explicitly DISMISS the removal appeal as moot, we AFFIRM the
initial decision.
The Board may dismiss an appeal as moot if the appealable action is
canceled or rescinded by the agency. Fernandez v. Department of Justice ,
105 M.S.P.R. 443, ¶ 5 (2007). For the appeal to be deemed moot, the employee
must have received all of the relief that he could have received if the matter had
been adjudicated and he had prevailed. Id. When an agency cancels an action
after an appellant files a Board appeal and the appellant has a viable outstanding
compensatory damages claim, such as a discrimination claim, the appeal is not
mooted by the cancellation. See Currier v. U.S. Postal Service , 72 M.S.P.R. 191,
195-97 (1996).
On review, the appellant challenges the administrative judge’s findings
regarding his affirmative defense of national origin discrimination, and he asserts
that he is entitled to compensatory damages for the pain and suffering he endured
in connection with the removal. Petition for Review (PFR) File, Tab 1.
Compensatory damages are typically not available in connection with a removal
appeal unless the appellant prevails on an affirmative defense.2 See Currier,
2 In any event, the appellant has waived this argument because he did not timely raise it
before the administrative judge. Initial Appeal File (IAF), Tab 21 at 1 n.1, 6 (noting
that, aside from the discrimination claim, the appellant did not dispute that he was2
72 M.S.P.R. at 195 -96 (explaining that, in the absence of an affirmative defense
such as a discrimination claim, compensatory damages are not available in
connection with an adverse action appeal before the Board). The appellant’s
arguments concerning his national origin discrimination claim are not clear. To
the extent the appellant is asserting that the removal action was discriminatory,
we agree with the administrative judge, for the reasons stated in the initial
decision, that there is no evidence that the agency considered the appellant’s
national origin in connection with proposing or sustaining the removal. Initial
Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-13. The appellant’s
arguments on review provide no basis to disturb this finding.3 See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357, 359 (1987). To the extent the appellant is
asserting that he was subjected to harassment, separate and apart from the
removal, the Board lacks jurisdiction over a harassment claim unless it is
connected to an otherwise appealable action. See Lethridge v. U.S. Postal
Service, 99 M.S.P.R. 675, ¶¶ 8-9 (2005) (holding that claims of discrimination
and harassment are within the jurisdiction of the Board only when they are related
to an otherwise appealable personnel action). Based on the foregoing, we deny
returned to the status quo ante); see McCarty v. Department of the Navy , 67 M.S.P.R.
177, 180-81 (1995) (finding that the appellant failed to preserve an objection for review
when he failed to object to the administrative judge’s ruling contained in a prehearing
conference order).
3 We have not considered the documents filed with the appellant’s petition for review.
PFR File, Tab 1 at 5-13, 19. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 213-14 (1980). Some of the documents were filed before the administrative judge
and are not new, including an excerpt from an agency handbook, which was discussed
by the administrative judge in the initial decision. ID at 10-11 n.4; see Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980). To the extent any of the
documents in the petition for review are not already in the record, the appellant has not
alleged that they were unavailable before the record closed judge despite his due
diligence. See Avansino, 3 M.S.P.R. at 213-14; 5 C.F.R. § 1201.115.3
the petition for review and affirm the initial decision, as modified to explicitly
dismiss the removal appeal as moot.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 Board8 | Stevens_Dayo_PH-0714-22-0158-I-1__Final_Order.pdf | 2024-03-28 | DAYO STEVENS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-22-0158-I-1, March 28, 2024 | PH-0714-22-0158-I-1 | NP |
1,927 | https://www.mspb.gov/decisions/nonprecedential/Wynn_AerielleAT-0752-20-0497-X-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AERIELLE WYNN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-20-0497-X-1
DATE: March 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aerielle Wynn , Montgomery, Alabama, pro se.
Mary Sellers , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a January 25, 2021 compliance initial decision granting the appellant’s
petition for enforcement, the administrative judge found the agency in partial
noncompliance with the Board’s final decision reversing the appellant’s demotion
on due process grounds. Wynn v. Department of Veterans Affairs , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
No. AT-0752-20-0497-C-1, Compliance File (CF), Tab 4, Compliance Initial
Decision (CID); Wynn v. Department of Veterans Affairs , MSPB Docket No.
AT-0752-20-0497-I-1, Initial Appeal File, Tab 8, Initial Decision (ID). For the
reasons discussed below, we now FIND the agency in compliance and DISMISS
the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In a June 8, 2020 initial decision, the administrative judge found that the
agency failed to provide the appellant due process in effecting her demotion from
her position of Medical Administration Officer, GS-0301-12, to Administrative
Officer, GS-0341-11. ID at 3-4. Therefore, he reversed the demotion and
ordered the agency to restore the appellant to the Medical Administration Officer,
GS-0301-12, position effective April 26, 2020, and to provide her the appropriate
amount of back pay with interest and benefits. ID at 4. The June 8, 2020 initial
decision became the final decision of the Board after neither party filed a petition
for review by July 13, 2020. ID at 6.
In a December 4, 2019 petition for enforcement, the appellant argued that
the agency was not in compliance with the Board’s final decision because she had
still not been restored to her prior position of Medical Administration Officer,
GS-0301-12. CF, Tab 1. In the January 25, 2021 compliance initial decision, the
administrative judge agreed, finding that, although the agency demonstrated that
it had canceled the appellant’s demotion, returned her to a GS -12 position, and
paid her the appropriate amount of back pay and benefits, it failed to show that it
had returned her to the specific position she occupied prior to the reversed
demotion, i.e., Medical Administration Officer, GS-0301-12. CID at 4. The
administrative judge considered the agency’s justification for failing to do so—
namely, that someone else now encumbered her former position—but found this
was insufficient to constitute a strong overriding interest for assigning the
appellant to a different position. CID at 5. Regarding the agency’s assertion that2
it was in compliance because it recently offered the appellant a Health Systems
Specialist position, he found that the agency failed to show that such position was
the same as the position from which she was demoted. CID at 4 n.1. Thus, the
administrative judge granted the appellant’s petition for enforcement and ordered
the agency to restore the appellant to the position of Medical Administration
Officer, GS-0301-12. CID at 5.
On January 29, 2021, the agency notified the Board that it was in
compliance with the Board’s final decision and submitted a January 3, 2021
Standard Form 50 (SF-50) reflecting that the appellant occupied the GS-0301-12
Medical Administration Officer position. Wynn v. Department of Veterans
Affairs, MSPB Docket No. AT-0752-20-0497-X-1, Compliance Referral File
(CRF), Tab 1.2 The appellant objected to the agency’s claim of compliance,
explaining that, although she held the Medical Administration Officer position on
paper, she had not been assigned to the position since 2019. CRF, Tab 2. In
addition, she provided evidence showing that the agency placed her on a
temporary detail to the Safety Service Line effective February 19, 2020, until
further notice and that, as late as December 29, 2020, she was still reporting to
the Safety Service Chief. Id. at 8, 11.
On April 8, 2021, the Board ordered the agency to respond to the
appellant’s challenges to its compliance. CRF, Tab 4. In an April 28, 2021
2 As noted in the compliance initial decision, the Board’s regulations provide that, upon
a finding of noncompliance, the party found to be in noncompliance must do the
following: (i) To the extent that the party decides to take the actions required by the
initial decision, the party 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 the party
has taken the actions identified in the initial decision, along with evidence establishing
that the party has taken those actions; and/or (ii) To the extent that the party decides not
to take all of the actions required by the initial decision, the party must file a petition
for review under the provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)
(6). As the agency has submitted evidence of compliance and neither party filed a
petition for review, the appellant’s petition for enforcement has been referred to the
Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c).
CRF, Tab 3.3
submission, the agency stated that the appellant was no longer on detail and
provided an SF-50 reflecting that she was reassigned effective January 17, 2021,
to the position of Health System Specialist, GS-0671-12, in the Office of the
Director. CRF, Tab 5. The agency stated that the appellant’s current position is
“substantially equivalent in scope and status to her former position.” Id. at 5. In
response, the appellant again argued that the agency had not complied with the
Board’s order. CRF, Tab 6. She explained that, although she had applied for and
accepted the Health System Specialist position, she did so only because of the
agency’s continued noncompliance, which forced her to “seek alternative
opportunities instead of literally sitting on a detail doing nothing day in and day
out, waiting for them to comply.” Id. at 4-5. In addition, she argued that the
duties of the Health System Specialist position are not similar to those of the
Medical Administration Officer position and that the two positions are not in the
same job series, do not have the same occupational code, and do not have the
same promotion potential. Id. at 4-5.
In a September 27, 2021 submission, the appellant notified the Board that
she had been informed that she was now being returned to her former position as
a Medical Administration Officer. CRF, Tab 8 at 3. She objected to this action,
however, arguing that the agency was involuntarily reassigning her from her new
position, which she had applied for and accepted. Id. She stated that she did not
accept or approve the reassignment back to her former position and that she
would “not be going.” Id. at 3-4.
On October 29, 2021, the agency submitted a supplemental compliance
response reflecting that, on September 23, 2021, it canceled the appellant’s
reassignment from the Medical Administration Officer position to the Health
System Specialist position. CRF, Tab 9 at 9. The agency stated the cancellation
operated to return the appellant to her former position effective April 26, 2020.
Id. at 5. The agency also provided an October 12, 2021 letter to the appellant
informing her that she was being permanently returned to her former position as a4
Medical Administration Officer, GS-0301-12, effective October 24, 2021, and
directing her to report for duty. Id. at 10. In addition, the letter stated that all
records regarding her reassignment to the Health System Specialist position had
been removed from her record. Id.
In an April 15, 2022 order, the Board directed the agency to address the
appellant’s contention that the agency had improperly involuntarily reassigned
her from the Health System Specialist position, which she applied for and
accepted as a result of the agency’s compliance delays, and whether its decision
to involuntarily reassign her from the Health System Specialist position and
remove references to it from her personnel file had placed the appellant in a
worse position than she would have been in had the reversed demotion not
occurred. CRF, Tab 10 at 3-4. The order informed the appellant of her right to
respond to the agency’s submission and cautioned her that, if she did not respond,
the Board may assume that she is satisfied and dismiss the petition for
enforcement. Id. at 4.
In a May 20, 2022 response, the agency asserted that it did not improperly
involuntarily reassign the appellant from the Health Systems Specialist position
to the Medical Administration Officer position because it had to effect this
reassignment pursuant to the Board’s orders and because the appellant had
consistently argued that she was entitled to be returned to that position, even after
accepting the Health System Specialist position. CRF, Tab 13 at 10. The agency
further stated that the appellant was not in a worse position than if the reversed
demotion had not occurred because, although the SF-50 reassigning her to the
Health System Specialist position had been removed from her official personnel
file, she was free to include that experience on her resume and had received an
“excellent” performance appraisal from her work in that position that she could
use to her advantage. Id. at 10-11.
The appellant did not respond to the agency’s May 20, 2022 submission.5
ANALYSIS
When the Board corrects a wrongful personnel action, it is required to
ensure that the employee is returned, as nearly as possible, to the status quo ante.
Kerr v. National Endowment for the Arts , 726 F.2d 730, 733 (Fed. Cir. 1984).
Restoration to the status quo ante requires that the employee be placed back in
her former position or in a position substantially equivalent in scope and status to
her former position. Taylor v. Department of the Treasury , 43 M.S.P.R. 221,
224-25 (1990).
As described above, the agency’s evidence reflects that it has now
complied with the outstanding compliance obligation identified in the compliance
initial decision by restoring the appellant to her former position of Medical
Administration Officer, GS-0301-12. CRF, Tabs 9, 13; CID at 4-5. Although the
appellant was dissatisfied with the agency’s delays and the fact that it only
restored her to her former position after she accepted the Health System
Specialist position, she does not dispute that the agency has in fact now restored
her to former position in compliance with the Board’s order.3 CRF, Tab 8. In
addition, she did not respond to the agency’s May 20, 2022 submission
addressing her allegations regarding her reassignment back to her former position
after she accepted the Health System Specialist position, despite being cautioned
that the Board may assume she was satisfied in the absence of a response.
Moreover, since being returned to her former position in October 2021, the
appellant has not filed anything further with the Board indicating that she still
objects to being returned to her former position pursuant to the Board’s order.
3 In notifying the Board of her objection to the agency’s decision to return her to her
former position in October 2021, the appellant argued that she “deserves to be
compensated for what [she has] been put through.” CRF, Tab 8 at 3-4. However, the
Board lacks the authority to award punitive damages or compensatory damages in
compliance cases. Cunningham v. Department of Veterans Affairs , 91 M.S.P.R. 523,
¶ 3 (2002). Although the Board has the authority to impose sanctions for failure to
comply with any order, the Board does not award damages as a sanction. Id. Moreover,
in view of the agency’s compliance, the imposition of sanctions would be inappropriate.
Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 8 (2010).6
Accordingly, we assume that the appellant is satisfied. See Baumgartner v.
Department of Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009).
In light of the foregoing, we find that the agency has established that it is
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 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Wynn_AerielleAT-0752-20-0497-X-1 Final Order.pdf | 2024-03-28 | AERIELLE WYNN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-20-0497-X-1, March 28, 2024 | AT-0752-20-0497-X-1 | NP |
1,928 | https://www.mspb.gov/decisions/nonprecedential/Futrell_Ollie_M_DA-0841-18-0324-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OLLIE M. FUTRELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-18-0324-I-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ollie M. Futrell , Garland, Texas, 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 of the Office of Personnel Management (OPM) finding
that she was not eligible to receive a deferred annuity under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant was previously employed with the U.S. Army. Initial Appeal
File (IAF), Tab 1 at 12-22, Tab 7 at 16-23. She filed an application for deferred
retirement under FERS, identifying periodic prior Federal service between 1979
and 1995. IAF, Tab 7 at 10-15. OPM denied the application, finding that the
appellant did not meet the eligibility criteria based on her Federal service history.
Id. at 8-9. OPM found that the appellant had less than 5 years of creditable
civilian service, with approximately 1 year and 2 months of creditable service
under FERS between November 1989 and January 1991, and approximately
2 years and 8 months of non-creditable service covered only under the Federal
Insurance Contributions Act (FICA) between January 1980 and September 1982.
Id. She subsequently filed an appeal with the Board, asserting that she had more
than 18 years of Federal service beginning in 1975. IAF, Tab 1 at 3-5. Following
a telephonic hearing, the administrative judge issued an initial decision affirming
OPM’s decision. IAF, Tab 13, Initial Decision (ID) at 1, 6.2
For the reasons set forth in the initial decision, the appellant has failed to
show by preponderant evidence2 that she is entitled to the FERS annuity she
seeks. ID at 2-6; see Cheeseman v. Office of Personnel Management ,
791 F.2d 138, 140-41 (Fed. Cir. 1986); Davis v. Office of Personnel Management ,
104 M.S.P.R. 70, ¶ 7 (2006) (observing that the burden of proving entitlement to
retirement benefits is on the applicant for benefits) . On review, the appellant
submits for the first time earnings records from the Social Security
Administration seemingly identifying additional Federal Service. Petition for
Review (PFR) File, Tab 1 at 2-11. She also states for the first time on review that
her Federal service began in high school under the “Ceda government program”
in 1973. Id. at 1.
Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with a petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Although the
appellant suggests on review that she obtained this information from the Social
Security Administration following the hearing after being “asked to provide
further proof of [her] service,” she has not made such a showing or provided any
explanation why she could not have obtained the records prior to the close of the
record below. PFR File, Tab 1 at 1. In any event, the appellant’s new evidence
does not demonstrate that she is entitled to a deferred FERS annuity, and thus
provides no basis for disturbing the administrative judge’s findings. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
generally not grant a petition for review based on “new” evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision).
2 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3
The appellant’s purported new evidence does not demonstrate that she
completed at least 5 years of civilian service creditable under FERS or that she
paid the necessary FERS service deposit for any eligible non -deduction service
performed prior to 1989. PFR File, Tab 1 at 2-11; ID at 2; see 5 U.S.C. § 8410;
5 C.F.R. §§ 842.203, 843.304(a)(1)-(2). As stated in the initial decision, the
appellant made no assertion in the record below that she made a service deposit to
obtain FERS credit for her FICA -covered service, and she makes no such
contention on review. ID at 3; PFR File, Tab 1 at 1. Although the Social
Security Administration earnings records the appellant submitted on review show
earnings from various Department of Defense entities between 1979 and 1992, the
records provide no information regarding the type of appointment held by the
appellant, or whether the earnings were covered under FERS or the Civil Service
Retirement System. PFR File, Tab 1 at 2 -11. Therefore, the appellant’s new
evidence does not alter the administrative judge’s well-reasoned finding that
OPM correctly denied her request for a deferred annuity under FERS. ID at 5.
Accordingly, we deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Futrell_Ollie_M_DA-0841-18-0324-I-1__Final_Order.pdf | 2024-03-27 | OLLIE M. FUTRELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-18-0324-I-1, March 27, 2024 | DA-0841-18-0324-I-1 | NP |
1,929 | https://www.mspb.gov/decisions/nonprecedential/Lynch_Melissa_K_CH-1221-20-0040-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA K. LYNCH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0040-W-1
DATE: March 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Linda Rademaker , Swayzee, Indiana, for the appellant.
Preandra Landrum , Indianapolis, Indiana, for the agency.
Nicholas Pasquarella , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Central Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
On April 1, 2018, the appellant was appointed to the position of Nurse,
subject to a 2-year probationary period. Initial Appeal File (IAF), Tab 9 at 145.
On November 1, 2018, she was notified that a Summary Probationary Review and
Nurse Professional Standards Board (PSB) was set to convene after the agency
had identified eight allegations of conduct unbecoming a Government employee,
which included alleged conduct such as calling her supervisor a liar, dancing
inappropriately in a hallway in front of a veteran patient, raising her shirt above
her breasts exposing her brassiere while at work, and leaving a veteran patient
alone in a retail store. Id. at 41-42. After convening and considering the
appellant’s reply to the allegations, the PSB sustained the charge and
recommended that the appellant be separated during her probationary period. Id.
at 30-40. On January 31, 2019, the agency terminated the appellant during her
probationary period, effective February 16, 2019. Id. at 16-18.
On May 6, 2019, the appellant filed a complaint with the Office of Special
Counsel (OSC), wherein she claimed that her termination was in reprisal for a
July 2018 disclosure in which she informed an agency Police Officer that, in June
and July of 2018, her supervisor repeatedly instructed staff not to call a code
orange for a psychiatric emergency on a certain veteran patient, which she
claimed was “unsafe” and a violation of law, rule, or regulation, gross
mismanagement, and an abuse of authority.2 IAF, Tab 1 at 23, 27. By letter
dated August 20, 2019, OSC informed the appellant that it was closing its
investigation into her allegations and that she had the right to seek corrective
action from the Board. Id. at 30.
2 According to the agency’s code orange policy statement, a code orange is defined as a
“behavior emergency that requires prompt intervention from a multidisciplinary team to
prevent harm to the [v]eterans, visitors, [] staff, or to property.” IAF, Tab 9 at 115. 2
Thereafter, the appellant filed the instant appeal with the Board, asserting
that she disclosed to a sergeant, a captain, and an officer with the agency’s police
force that her supervisor repeatedly instructed staff not to call a code orange for a
particular veteran and that, in reprisal for the disclosure, the agency took the
following actions against her: (1) issued a letter of expectation; (2) increased
face-to-face counseling sessions; (3) ignored emails from her; (4) failed to timely
provide requested documentation to assist in her response to the agency’s
allegations against her; and (5) terminated her during her probationary period.
IAF, Tab 1, Tab 4 at 4. She also alleged that her disclosure was a contributing
factor to the alleged actions because it “aligned with the timing of the start of
[the] retaliation.” Id.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, the
administrative judge issued an initial decision on the pleadings, IAF, Tab 19,
Initial Decision (ID) at 1. She found that the sole personnel action exhausted by
the appellant before OSC was her probationary termination and that the appellant
failed to nonfrivolously allege that she made a protected disclosure pursuant to
5 U.S.C. § 2302(b)(8) that was a contributing factor to her termination. ID at 4,
8-9. Accordingly, she dismissed the appeal for lack of jurisdiction.
The appellant has filed a petition for review of the initial decision, wherein
she claims that the administrative judge erred in concluding that she failed to
nonfrivolously allege that her disclosure was protected under section 2302(b)(8)
and that the disclosure was a contributing factor to her probationary termination.
Petition for Review (PFR) File, Tab 1 at 4-6. She also submits with her petition
for review a new employee quarterly review form dated July 5, 2018. Id. at 7-8.
The agency has responded to the appellant’s petition for review. PFR File, Tab 3.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant established Board jurisdiction over her IRA appeal.
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act if the appellant has exhausted her administrative
remedies before OSC and makes nonfrivolous allegations that: (1) she made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor to the agency’s decision
to take or fail to take a personnel action. Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).
As an initial matter , the record demonstrates, and neither party disputes,
that the appellant exhausted with OSC her claim that the agency terminated her
probationary appointment in reprisal for the disclosure concerning her
supervisor’s instruction to not call a code orange on a veteran patient. IAF, Tab 1
at 23. The appellant does not challenge on review the administrative judge’s
finding that this was the only claim exhausted with OSC. As such, we agree with
the administrative judge’s conclusion that the Board may only consider whether
the appellant’s termination was in reprisal for her disclosure concerning the code
orange. ID at 4; see Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011) (stating that the Board may consider only matters that the
appellant first raised and exhausted before OSC). Therefore, the issue currently
before the Board is whether the appellant nonfrivolously alleged that her
disclosure was protected under 5 U.S.C. § 2302(b)(8) and whether it was a
contributing factor to the agency’s decision to terminate her. As explained
below, we find that the appellant has made such nonfrivolous allegations.
The appellant nonfrivolously alleged that she made a protected
disclosure under 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 reasonable4
person in her position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6.
The test to determine whether a putative whistleblower has a reasonable belief in
the disclosure is an objective one: whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions of the agency evidenced a
violation of law, rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to public health or
safety. Id.
In the initial decision, the administrative judge considered the appellant’s
disclosure regarding her supervisor instructing employees not to call a code
orange on a specific patient and correctly observed that the appellant’s disclosure
could be construed as a disclosure of a policy dispute. ID at 5, 8-9. The Board
has stated that “general philosophical or policy disagreements with agency
decisions or actions are not protected unless they separately constitute a protected
disclosure of one of the categories of wrongdoing listed in section 2302(b)(8)
(A).” See Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015); see
also 5 U.S.C. § 2302(a)(2)(D). In other words, if an appellant has a reasonable
belief that the disclosed information evidences the kinds of misconduct listed in
section 2302(b)(8) rather than a policy disagreement, then the disclosure is
protected. See Webb, 122 M.S.P.R. 248, ¶ 9. The administrative judge concluded
that “the appellant’s alleged disclosure does not facially allege a violation of any
law, rule or regulation, gross mismanagement; a gross waste of funds; an abuse of
authority; or substantial and specific danger to public health or safety.” ID at 8.
Rather, she found that the appellant’s allegation “appears to concern agency
policy decisions.” Id. Therefore, she concluded that the appellant’s alleged
disclosure was “excluded from the definition of a protected disclosure.” Id.
We agree with the administrative judge that, in her pleadings to the
administrative judge, the appellant failed to facially allege a violation of any of5
the categories of wrongdoing set forth in section 2302(b)(8). IAF, Tab 1 at 4,
Tab 4 at 4-5. However, in her petition for review, the appellant alleged that “[a]
reasonable person would agree that an employee reporting a Nurse Manager
giving a direct order to her staff to violate a policy that creates detrimental care
of a veteran . . . is an abuse of power.” PFR File, Tab 1 at 4. Although the
appellant did not allege an abuse of power below, IAF, Tab 4, and the Board will
generally not consider an argument raised for the first time on review absent a
showing that it is based on new and material evidence that was not previously
available despite the party’s due diligence, Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016), we will consider the appellant’s new argument on
this jurisdictional issue because jurisdiction is always before the Board and may
be raised by any party or sua sponte by the Board at any time during Board
proceedings, see Lovoy v. Department of Health and Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003).
Although an “abuse of power” is not precisely a category of wrongdoing
listed in section 2302(b)(8)(A), the Board has stated that “[a]ny doubt or
ambiguity as to whether the appellant made a nonfrivolous jurisdictional
allegation should be resolved in favor of finding jurisdiction.” See Usharauli v.
Department of Health and Human Services , 116 M.S.P.R. 383, ¶ 19 (2011). As
such, we construe the appellant’s “abuse of power” allegation as an allegation of
an abuse of authority or gross mismanagement, as contemplated by 5 U.S.C.
§ 2302(a)(2)(D)(ii). An employee discloses an abuse of authority when she
alleges that a Federal official has arbitrarily or capriciously exercised power
which has adversely affected the rights of any person or has resulted in personal
gain or advantage to herself or to preferred other persons. Webb, 122 M.S.P.R.
248, ¶ 10 n.3. She discloses gross mismanagement when she alleges that a
management action or inaction creates a substantial risk of significant adverse
impact on the agency’s ability to accomplish its mission. See Cassidy v.
Department of Justice , 118 M.S.P.R. 74, ¶ 8 (2012). 6
Here, the appellant alleges that her supervisor’s instruction not to call a
code orange “creates detrimental care of a veteran.” PFR File, Tab 1 at 4. Such
an allegation of “detrimental care of a veteran” could conceivably adversely
affect the rights of another person or create a substantial risk of significant
adverse impact on the agency’s ability to accomplish its mission, namely, to care
for veteran patients. Given the minimal showing required to meet the
nonfrivolous allegation standard, we find that the appellant has met her burden of
nonfrivolously alleging that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). See Jessup v. Department of Homeland Security , 107 M.S.P.R. 1,
¶ 10 (2007) (observing that the appellant’s burden of making a nonfrivolous
allegation is low and requires only a minimally sufficient showing). Although the
appellant’s allegations are sufficient to meet her jurisdictional burden, we
emphasize that, on remand, she must prove by preponderant evidence that her
disclosure involved more than a policy disagreement. See generally Salerno,
123 M.S.P.R. 230, ¶ 5.
The appellant nonfrivolously alleged that her protected disclosure
was a contributing factor to the agency’s decision to separate her
from her position.
Because the appellant nonfrivolously alleged that her disclosure was
protected under 5 U.S.C. § 2302(b)(8), she must next nonfrivolously allege that it
was a contributing factor to the personnel action at issue. See Salerno,
123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion at the
jurisdictional stage, the appellant need only raise a nonfrivolous allegation that
the fact of, or the content of, the protected disclosure was one factor that tended
to affect the personnel action in any way. Id., ¶ 13. One way to establish this
criterion is the knowledge/timing test, under which an employee may
nonfrivolously allege that the disclosure was a contributing factor to 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 action7
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor to the personnel action. Id.
As previously noted, the appellant alleged below that her disclosure
“aligned with the timing of the start of retaliation.” IAF, Tab 4 at 4. In the initial
decision, the administrative judge found that this allegation was insufficient to
constitute a nonfrivolous allegation of contributing factor. ID at 9. Specifically,
she stated that the record reflects, and the appellant did not dispute, that the
“identified” police officers to whom the appellant made her disclosure had no
involvement or role in the decision to terminate the appellant’s employment and
that the appellant failed to allege that those officers communicated her alleged
disclosure to any of the nursing personnel who recommended or sustained her
termination. Id. She noted, however, that one of the officers to whom the
appellant made the disclosure reported the communication to the appellant’s
supervisor but that she was unable to find that “the officials recommending and
sustaining the probationary termination knew of the disclosure.” Id.
On review, the appellant alleges that the deciding official, who ultimately
terminated her, was aware of her disclosure. PFR File, Tab 1 at 5. Specifically,
she points to an October 19, 2018 step 3 grievance concerning alleged harassment
of her by her supervisor in retaliation for her disclosure. Id.; IAF, Tab 9 at 22-33.
In the memorandum, which was addressed to the deciding official in the
appellant’s termination, she, through her union representative, reiterates her
disclosure, namely, that her supervisor had told employees not to call a code
orange on a specific patient. IAF, Tab 9 at 22-23. Thus, the appellant has
alleged on review that the deciding official responsible for her termination was
aware of her disclosure and that, within approximately 3 months of becoming
aware of the disclosure, he terminated her from her position. PFR File, Tab 1
at 5; IAF, Tab 9 at 17-18, 22-23. The Board has stated that a personnel action
that occurs within 1 to 2 years of the protected disclosure satisfies the timing
portion of the knowledge/timing test. See Mastrullo v. Department of Labor ,8
123 M.S.P.R. 110, ¶ 21 (2015); Salerno, 123 M.S.P.R. 230, ¶ 14. Thus, the
appellant’s allegations meet the knowledge/timing test with respect to the
deciding official. Accordingly, we find that the appellant nonfrivolously alleged
that she made a protected disclosure that was a contributing factor to her
termination.
The appellant also alleges on review that her disclosure was a contributing
factor to the initiation and completion of the PSB investigation. PFR File, Tab 1
at 5-6. She did not make this allegation below, IAF, Tabs 1, 4, and as noted
above, the administrative judge found that the only claim that was properly
exhausted with OSC was the claim that the appellant’s termination was in reprisal
for her disclosure. ID at 4. In doing so, however, the administrative judge
seemingly did not consider the possible retaliatory role of the PSB. We have
reviewed the record, and it appears that the appellant sufficiently exhausted her
claim with OSC that the agency initiated the PSB investigation in reprisal of her
disclosure. IAF, Tab 1 at 30.
The appellant’s allegation that her disclosure was a contributing factor to
the initiation and completion of the PSB investigation suggests that she is
claiming that the PSB’s investigation is a personnel action. The Board has
consistently stated that an investigation is not generally considered a personnel
action. Mattil v. Department of State , 118 M.S.P.R. 662, ¶ 21 (2012); Johnson v.
Department of Justice , 104 M.S.P.R. 624, ¶ 7 (2007). However, if it is
established that the investigation was so closely related to a personnel action that
it could have been a pretext for gathering evidence to use to retaliate against an
employee for whistleblowing so as to constitute a claim of a retaliatory
investigation, the Board will consider evidence concerning the investigation when
assessing the merits of the appeal and when determining whether the agency has
proven that it would have taken the personnel action in the absence of the
disclosure, particularly, when analyzing the strength of the agency’s evidence
supporting the action. Mattil, 118 M.S.P.R. 662, ¶ 21; Mangano v. Department of9
Veterans Affairs , 109 M.S.P.R. 658, ¶ 44 (2008); Russell v. Department of
Justice, 76 M.S.P.R. 317, 323-28 (1997). Similarly, the appellant’s allegation
that members of the PSB were aware of her disclosure may also be relevant to the
merits analysis of whether the agency proved by clear and convincing evidence
that it would have terminated the appellant even in the absence of her disclosure,
particularly when determining whether and to what degree agency officials had a
motive to retaliate, because the record demonstrates that the PSB influenced the
ultimate decision to terminate the appellant by initially recommending that
action.3 IAF, Tab 9 at 31; see Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 29 (2014) (finding that the portion of the clear and convincing
evidence analysis dealing with the motive of the agency to retaliate weighed
against the agency in light of the influence exerted by an agency official with a
motive to retaliate). Nonetheless, for purposes of jurisdiction, we do not consider
whether the appellant nonfrivolously alleged that agency officials initiated and
undertook the PSB investigation in reprisal for her disclosure because the PSB
investigation does not constitute a personnel action. See Mattil, 118 M.S.P.R.
662, ¶ 21.
The appellant has not shown that the evidence submitted for the first time on
review was not available before the record closed below.
As noted above, the appellant submits with her petition for review a
document concerning a new employee quarterly review. PFR File, Tab 1 at 7-8.
This document was not included in the record below. IAF, Tabs 1, 4. Under
3 We recognize that, in a situation where a particular management official who is acting
with an improper animus influences a deciding official who is unaware of the improper
animus when implementing a personnel action, a “cat’s paw” theory may be applied to
establish that the deciding official had constructive knowledge of the protected
disclosure or activity, thereby meeting the knowledge prong of the knowledge/timing
test for the contributing factor analysis. See Staub v. Proctor Hospital , 562 U.S. 411,
415-16, 422-23 (2011); Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11
(2012). That is not the situation presented here, however, because the record otherwise
establishes that the deciding official had actual knowledge of the appellant’s protected
disclosure. IAF, Tab 9 at 22-23.10
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for
the first time with a petition for review absent a showing that it was unavailable
before the record closed before the administrative judge despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
Here, the document is dated July 5, 2018, and the appellant did not file her Board
appeal until October 22, 2019. IAF, Tab 1; PFR File, Tab 1 at 7-8. Thus, the
document was available before the record closed below, and the appellant has not
explained why, despite her due diligence, she failed to submit it below.
Accordingly, we have not considered it.
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, and we remand this case to the Central Regional Office for further
adjudication in accordance with this Remand Order.4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.11 | Lynch_Melissa_K_CH-1221-20-0040-W-1__Remand_Order.pdf | 2024-03-27 | MELISSA K. LYNCH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0040-W-1, March 27, 2024 | CH-1221-20-0040-W-1 | NP |
1,930 | https://www.mspb.gov/decisions/nonprecedential/Iqbal_RashidPH-0752-16-0397-I-3 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RASHID IQBAL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-16-0397-I-3
DATE: March 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Gary E. Kennedy , Chelsea, Maine, for the appellant.
Robert F. Stone , Esquire, South Deerfield, Massachusetts, for the appellant.
Joshua R. Carver , Augusta, Maine, 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 the appeal for lack of jurisdiction. 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 Northeastern Regional Office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency decided to remove the appellant for unacceptable performance
based on its assessment of his performance during a performance improvement
period. Iqbal v. Department of Veterans Affairs , MSPB Docket No. PH-0752-16-
0397-I-1, Initial Appeal File (IAF), Tab 12 at 5-7, 11, Tab 21 at 17-19. In its
May 18, 2015 decision notice, the agency notified the appellant that he would be
removed effective June 1, 2015. IAF, Tab 21 at 17-19. The appellant’s union
filed a third step grievance on his behalf on May 21, 2015, specifically
challenging the removal. IAF, Tab 20 at 13. Following the advice of a union
representative, the appellant retired on May 29, 2015, before his removal took
effect. IAF, Tab 1 at 7, Tab 21 at 20. He then filed a formal discrimination
complaint challenging his removal. IAF, Tab 20 at 16. In a final agency decision
(FAD), the agency found the appellant’s retirement to be voluntary, his removal
warranted based on his unacceptable performance, and his discrimination claims
unsupported. Id. at 17-27. The appellant timely appealed the FAD to the Board,
indicating that he was appealing, among other things, his removal and an
involuntary retirement. IAF, Tab 1; see 29 C.F.R. § 1614.302(d)(1)(ii). The
appellant alleged that his retirement was a result of discrimination based on,
among other things, his religion and disability. IAF, Tab 1 at 7, Tab 9 at 5-9,
12-13, Tab 22 at 3. The administrative judge adjudicated the appeal as an
involuntary retirement appeal, which he dismissed after a hearing for lack of
jurisdiction. Iqbal v. Department of Veterans Affairs , MSPB Docket No. PH-
0752-16-0397-I-3, Appeal File, Tab 7, Initial Decision. The appellant petitioned
the Board for review. Petition for Review (PFR) File, Tab 1.
Under 5 U.S.C. § 7701(j), “neither an individual’s status under any
retirement system established by or under Federal statute nor any election made
3
by such individual under any such system may be taken into account” in
determining the appealability of an individual’s removal from Federal service.
The Board thus retains jurisdiction over an appeal when an employee retires when
faced with an agency’s final decision to remove him. Mays v. Department of
Transportation, 27 F.3d 1577, 1579-80 (Fed. Cir. 1994); Krawchuk v. Department
of Veterans Affairs , 94 M.S.P.R. 641, ¶ 6 (2003). This is true even if the
effective date of the retirement is on or before that of the removal. Krawchuk,
94 M.S.P.R. 641, ¶ 6.
Here, the appellant retired on May 29, 2015, following the issuance of the
May 18, 2015 decision notice and before the June 1, 2015 scheduled effective
date of the removal. IAF, Tab 21 at 17-20. Because the agency issued a decision
notice, the administrative judge erred in adjudicating the involuntary retirement
claim rather than the merits of the removal, and we vacate the initial decision.
See Krawchuk, 94 M.S.P.R. 641, ¶¶ 5, 7-8 (finding that the administrative judge
erred in analyzing the issue of jurisdiction under the law governing coercive
retirements when the agency issued a final removal decision before the
appellant’s retirement). Further, because the administrative judge failed to fully
identify the issues or afford the parties the opportunity to fully develop the record
on those issues, remand is required.
Regarding the May 21, 2015 grievance filed on the appellant’s behalf,
while this matter was pending on petition for review, the Board issued an order
observing that it did not appear that the administrative judge addressed a critical
jurisdictional issue—whether the appellant elected to challenge his removal
through the negotiated grievance procedure prior to filing his Board appeal. PFR
File, Tab 3 at 2. The Board noted that under 5 U.S.C. § 7121(e)(1), an election to
file a grievance deprives the Board of jurisdiction over the aggrieved action if the
employee receives adequate notice of his election rights and his grievance is
timely filed. Id. at 2-3. The Board ordered the appellant to file evidence and
argument regarding why his appeal should not be dismissed for lack of
4
jurisdiction based on the filing of the grievance.2 Id. at 3. Subsequently, the
Board issued its decision in Kaszowski v. Department of the Air Force ,
2023 MSPB 15, ¶¶ 6-7, finding that an appellant did not waive her right to appeal
a removal to the Board when the agency did not fully explain the consequences of
choosing the appeal or grievance procedure, preventing her from making a
knowing and informed election of remedies. We find that the notice of appeal
rights in this case is virtually identical to the one in Kaszowski, in that it did not
explicitly inform the appellant that he could raise the matter at issue with the
Board or under the negotiated grievance procedure, but not both, nor did it
otherwise notify him as to whether the election of the grievance procedure would
result in a waiver of his right to file a Board appeal. IAF, Tab 21 at 17-19.3
Thus, he cannot be deemed to have waived that right by having first filed a
grievance. See Kaszowski, 2023 MSPB 15, ¶¶ 6-7.
On remand, the administrative judge shall afford the parties the opportunity
to conduct discovery and submit additional evidence and argument regarding the
appellant’s adverse action appeal. The administrative judge shall hold a
supplemental hearing, if requested by the appellant, and shall issue a new initial
decision addressing, consistent with the most recent precedent, the merits of the
2 The appellant did not respond to this order.
3 The notice of appeal rights provided by the agency informed the appellant that he was
entitled to: “a) Appeal this action to the Merit Systems Protection Board (MSPB) or
b) Seek corrective action before the U.S. Office of Special Counsel (OSC) or c) File a
grievance under the negotiated grievance procedure or d) A discrimination complaint
with the Office of Resolution Management (ORM).” IAF, Tab 21 at 17. The notice
continued as follows:
You shall be deemed to have exercised your option to appeal the adverse
action at such time as you timely initiate action to appeal to the Board, or
the OSC, or timely file a grievance in writing under the negotiated
grievance procedure, or a discrimination complaint. If your appeal
includes an allegation that the facility engaged in a prohibited personnel
action in retaliation for protected whistleblowing, you may elect to file an
appeal to MSPB, OSC, or a negotiated grievance and your election is
based on which election you file first.
Id. at 17.
5
appellant’s performance-based removal, and any affirmative defenses.4 See
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 conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 It does not appear that the administrative judge addressed the appellant’s challenge,
raised during the appeal, of his alleged denial of a within-grade pay increase. IAF,
Tab 9 at 13-14. On remand, the administrative judge shall provide appropriate notice,
determine whether the appellant timely raised a matter under Board jurisdiction, and if
the appellant did so, adjudicate the claim. The administrative judge may address the
claim in the present appeal or in a separate one at his discretion. | Iqbal_RashidPH-0752-16-0397-I-3 Remand Order.pdf | 2024-03-27 | RASHID IQBAL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-16-0397-I-3, March 27, 2024 | PH-0752-16-0397-I-3 | NP |
1,931 | https://www.mspb.gov/decisions/nonprecedential/Douglas_Curtis_J_DC-0752-18-0724-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CURTIS JEROME DOUGLAS,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-18-0724-I-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Curtis Jerome Douglas , Bowie, Maryland, pro se.
Alexander Donart and Adrienne Francoise Boone , Washington, D.C., for
the agency.
Cynthia Clark , Vienna, 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 for failure to prosecute. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
On August 6, 2018, the appellant filed a Board appeal challenging his
removal for failure to maintain a security clearance. Initial Appeal File (IAF),
Tab 1 at 4, Tab 2 at 1. After filing his initial appeal, however, he did not
participate in most of the proceedings or respond to any of the administrative
judge’s orders. In particular, he failed to timely appear for a status conference on
September 24, 2018, but called into the conference after the administrative judge
was able to reach him on his mobile telephone. IAF, Tab 15 at 1. During the
conference, the administrative judge warned the appellant that he must regularly
check his emails for any filings from the Board, and she reviewed the
requirements of her previously issued hearing order, including the requirement to
file prehearing submissions. Id. The appellant stated that he understood these
instructions. Id.
The appellant did not appear for the prehearing conference, despite the
administrative judge calling him on his business, home, and mobile telephones
and leaving a voicemail for him. IAF, Tab 20 at 1. He also did not submit his2
prehearing submissions. Id. at 1. The administrative judge issued an order to the
appellant to show cause why his appeal should not be dismissed for failure to
prosecute. Id. at 2. She warned him that failure to reply to her order would result
in dismissal of his appeal. Id. at 2-3. The appellant did not respond to the order.
IAF, Tab 21, Initial Decision (ID) at 2-3. The administrative judge thus found
that the appellant had failed to exercise due diligence and dismissed the appeal
with prejudice for failure to prosecute. ID at 1.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has responded. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Leseman v. Department of the Army ,
122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
complying with Board orders or when a party has exhibited negligence or bad
faith in his efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure
to respond to multiple Board orders may reflect a failure to exercise basic due
diligence. Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011). Absent
an abuse of discretion, the Board will not reverse an administrative judge’s
determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6.
As noted above, the appellant did not timely appear for the scheduled status
conference, failed to appear for the prehearing conference, failed to submit
prehearing submissions, and failed to respond to the order to show cause. IAF,
Tab 20 at 1-2; ID at 2-3. After his failure to timely appear for the status
conference, the administrative judge warned him of the importance of complying
with Board orders. IAF, Tab 20 at 1. In addition, following his continued failure
to comply, she gave him an opportunity to show cause why his appeal should not
be dismissed for failure to prosecute, but he did not respond. ID at 2-3. Given3
the appellant’s repeated failure to respond to the administrative judge’s orders
below, we decline to disturb her finding that the sanction of dismissal with
prejudice was appropriate. See Leseman, 122 M.S.P.R. 139, ¶ 6.
The appellant, an e-filer, asserts on review that he received no email
notices of orders except for the show cause order. PFR File, Tab 1 at 4. The
Board’s records reflect that notification emails were sent to the appellant’s email
address of record. Moreover, the appellant is registered as an e-filer, and, as
such, he is deemed to have received the administrative judge’s orders on the date
of electronic submission. 5 C.F.R. § 1201.14(m)(2) (2018); IAF, Tab 1 at 2,
Tab 13 at 5, Tab 14 at 2, Tab 15 at 3, Tab 20 at 4. Further, as an e -filer,
the appellant was responsible for ensuring that email from @mspb.gov was not
blocked by filters and for monitoring case activity at the Repository at the
Board’s electronic filing system (e-Appeal Online) to ensure that he received all
case-related documents. 5 C.F.R. §§ 1201.14(j)(2)-(3) (2018); see Rivera v.
Social Security Administration , 111 M.S.P.R. 581, ¶ 5 (2009) (discussing an
e-filer’s obligations) . Therefore, even if the appellant did not receive email
notifications of the administrative judge’s orders as he claims, his failure to
respond was attributable to his own lack of due diligence and provides no basis to
disturb the initial decision.
As to the prehearing conference scheduled for October 16, 2018, for which
the appellant failed to appear, he argues that he was unable to appear because he
was taking his ill mother to her doctor’s appointment. PFR File, Tab 1 at 4; IAF,
Tab 13 at 4. As noted above, the appellant is deemed to have received the
hearing order scheduling the prehearing conference, and the administrative judge
reviewed the hearing order with the parties during the status conference on
September 24, 2018. IAF, Tab 13 at 5, Tab 20 at 1-2. Moreover, the appellant
does not dispute that the administrative judge called him on October 16, 2018, on
his business, home, and mobile telephones during the prehearing conference and
left a voicemail message for him. IAF, Tab 20 at 1. He fails to explain, however,4
why he did not return the administrative judge’s telephone calls. Thus, under the
circumstances, we find that the appellant has not shown good cause for his failure
to appear at the prehearing conference or submit prehearing submissions and that
he failed to exercise due diligence and ordinary prudence in doing so
On review, the appellant also argues that he responded to the show cause
order within the deadline and that he validated his submittal on e-Appeal Online.
PFR File, Tab 1 at 3. His response was due on October 26, 2018, and he claims
that he submitted his response on October 25, 2018. Id. Despite this claim, he
does not provide proof of his submission. Further, the Board’s records do not
reflect that the appellant submitted a pleading on that date. Instead, they show
that the appellant started a pleading on October 21, 2018, but that the
pleading was not submitted. The appellant then deleted that draft pleading on
November 2, 2018, and submitted his petition for review instead. Thus, he did
not respond to the administrative judge’s order to show cause why his appeal
should not be dismissed for failure to prosecute.
Accordingly, we affirm the initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 The appellant also argues the merits of his appeal on review. PFR File, Tab 1 at 4-5.
However, this argument is not determinative of the propriety of the dismissal for failure
to prosecute. Bennett v. Department of the Navy , 1 M.S.P.R. 683, 688 (1980)
(concluding that an appellant’s argument regarding the merits of the underlying agency
action was not determinative of the propriety of a dismissal for failure to prosecute).
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Douglas_Curtis_J_DC-0752-18-0724-I-1__Final_Order.pdf | 2024-03-27 | CURTIS JEROME DOUGLAS v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-18-0724-I-1, March 27, 2024 | DC-0752-18-0724-I-1 | NP |
1,932 | https://www.mspb.gov/decisions/nonprecedential/Roberts_James_E_AT-0432-18-0770-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES E. ROBERTS,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
AT-0432-18-0770-I-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Roberts , Melbourne, Florida, pro se.
Shannon A. Sharkey , Esquire, Kennedy Space Center, 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 that
construed his appeal as a claim of an involuntary retirement and dismissed it for
his failure to raise a nonfrivolous allegation of Board jurisdiction. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons set forth below, the appellant’s petition for review is DISMISSED for
lack of a substitute party. 5 C.F.R. § 1201.35.
In September 2018, the appellant, proceeding pro se, filed a Board appeal
contesting his retirement from the Federal service. Initial Appeal File (IAF),
Tab 1. He argued that he retired when faced with a removal decision. IAF, Tab 1
at 3, 5; Tab 15 at 4; Tab 16 at 4; Tab 19 at 4; Tab 21 at 4, 6. The administrative
judge treated the appeal as an involuntary retirement and issued an initial
decision dismissing it for lack of jurisdiction. IAF, Tab 12, Tab 22, Initial
Decision at 1-7. The appellant filed a petition for review on January 28, 2019.
Petition for Review (PFR) File, Tab 1. In September 2020, with the appellant’s
petition for review pending, the agency advised that the appellant died on
February 7, 2020. PFR File, Tab 4 at 4-6. The agency served this pleading on
the appellant via e -Appeal Online. Id. at 8.
Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of his appeal, the processing of his appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where
an appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for the widow to be a substitute party); Cole v.
Department of Veterans Affairs , 77 M.S.P.R. 434, 434 n.1 (1998) (granting a
motion to substitute the administrator of an appellant’s estate, where the appellant
died as his petition for review was pending). The regulatory deadline to file a
motion to substitute is 90 days after the death of an appellant and can be waived
with a showing of good cause. 5 C.F.R. § 1201.35(b).
On September 29, 2020, the Office of the Clerk of the Board issued an
order to the parties advising that the appellant’s petition for review may be
dismissed if a proper substitution of party is not made. PFR File, Tab 5. The
order, which the Board served on the appellant electronically and to his address
of record, directed any party seeking to substitute for the appellant to set forth the2
following: (1) how the filer is a proper substitute; (2) how the interests of the
appellant did not terminate with his death; and (3) if good cause exists to waive
the filing deadline to seek substitution set forth at 5 C.F.R. § 1201.35(b). Id. The
order contained explicit information on how to establish each of these
requirements. Id. at 2. Neither party responded to the order.
In accordance with 5 C.F.R. § 1201.35(a), we dismiss the instant petition
for review for lack of a substitute party. This is the Board’s final decision
regarding the appellant’s petition for review. Because of this, the initial decision
remains the final decision of the Board concerning the appellant’s appeal of his
retirement.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Roberts_James_E_AT-0432-18-0770-I-1 Final Order.pdf | 2024-03-27 | JAMES E. ROBERTS v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. AT-0432-18-0770-I-1, March 27, 2024 | AT-0432-18-0770-I-1 | NP |
1,933 | https://www.mspb.gov/decisions/nonprecedential/Madyun_Nafeesah_A_AT-0353-18-0386-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAFEESAH A. MADYUN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-18-0386-I-1
DATE: March 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
David Champion , Memphis, Tennessee, for the appellant.
Cynthia R. Allen , Memphis, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration 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).
2
BACKGROUND
The agency employs the appellant as a City Mail Carrier. Initial Appeal
File (IAF), Tab 5 at 43. The appellant suffered a compensable injury on
February 24, 2014. Id. at 59. The Office of Workers’ Compensation Programs
(OWCP) determined that the accepted conditions for her traumatic injury were a
sprain of her right wrist and foot, neck, and right-hand carpal tunnel syndrome.
Id. On August 6, 2015, OWCP terminated the appellant’s wage loss benefits,
finding that her accepted medical conditions were no longer disabling. IAF,
Tab 5 at 54-56. OWCP permitted the appellant to continue to receive medical
benefits for carpal tunnel syndrome. IAF, Tab 5 at 43-58. The appellant
performed the duties of her position until January 25, 2018, when her doctor
completed a Form CA-17, Duty Status Report, specifying medical restrictions due
to her carpal tunnel syndrome. IAF, Tab 5 at 6, 45. The agency notified the
appellant that it had no work for her to perform within her new medical
restrictions and sent her home. ID at 3; IAF, Tab 5 at 5-6.
On March 14, and 21, 2018, the appellant filed two claims for OWCP
benefits for the period of February 3, 2018, to March 16, 2018, alleging disability
due to a worsening of the carpal tunnel syndrome. IAF, Tab 5 at 14. OWCP
notified the appellant on March 23, 2018, that additional evidence was needed to
establish that her disability between February 3, 2018, and March 16, 2018, was
due to her February 24, 2014 accepted injury because her physician had indicated
that her current carpal tunnel syndrome was due to the repetitive nature of her job
and had not connected the disability to the original work-related injury. Id. at 15.
On April 6, 2018, the appellant filed an appeal alleging that the agency
improperly denied her request for restoration as a partially recovered employee
and suspended her for more than 14 days beginning on January 25, 2018. IAF,
Tab 1 at 2. The appellant alleged that she had a recent claim for a compensable
injury that was accepted by OWCP, but the administrative judge rejected this
assertion as unsubstantiated and dismissed the appeal for lack of jurisdiction,
3
without holding the hearing requested by the appellant. ID at 1, 3; IAF, Tab 4
at 1-2.
The administrative judge found that the appellant failed to prove that her
absence beginning on January 25, 2018, was connected to her compensable
traumatic injury. ID at 3. With respect to the appellant’s additional claims that
the agency suspended her and failed to afford her the procedures she was due
under 5 U.S.C. chapter 75, the administrative judge found that the Board did not
have jurisdiction over her appeal under chapter 75 because the non-preference
eligible appellant did not meet the statutory definition of an “employee” as set
forth in 5 U.S.C. § 7511(a)(1)(B). ID at 4. Based on her finding that the Board
lacked independent jurisdiction over the claims raised on appeal, the
administrative judge declined to adjudicate the appellant’s claim of disability
discrimination. Id.
The appellant filed a petition for review arguing that the Board has
jurisdiction over her appeal. Petition for Review (PFR) File, Tab 1. She submits
new evidence that OWCP accepted her recent carpal tunnel syndrome claim as
related to her compensable work injury and began paying her compensation
benefits effective January 26, 2018. IAF, Tab 1 at 15-16; PFR File, Tab 4
at 15-16. She asserts that the agency arbitrarily and capriciously denied her
work. She also reasserts her discrimination claim. Id. at 2. The agency has
responded in opposition, and the appellant has replied. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151(b); Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016). Under
OPM’s regulations, such employees have different substantive rights based on
4
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 (quoting 5 C.F.R. § 353.301). Partially recovered employees, like the
appellant, are those who, “though not ready to resume the full range” of duties,
have “recovered sufficiently to return to part-time or light duty or to another
position with less demanding physical requirements.” Kingsley, 123 M.S.P.R.
365, ¶ 9; 5 C.F.R. § 353.102.
To establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations2 of
the following: (1) she was absent from her position due to a compensable injury;
(2) she recovered sufficiently to return to duty on a part-time basis or to return to
work in a position with less demanding physical requirements than those
previously required of her; (3) the agency denied her request for restoration; and
(4) the denial was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 11;
5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, she is
entitled to a hearing at which she must prove the merits of her restoration appeal,
i.e., all four of the above elements, by a preponderance of the evidence.3
Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
The administrative judge dismissed this appeal for lack of jurisdiction
based on her finding that the appellant failed to establish that she was absent from
duty due to her compensable injury. ID at 3. However, because the appellant
filed her appeal after March 30, 2015, the effective date of the current version of
the Board’s regulation at 5 C.F.R. § 1201.57(a) applied to her restoration claim.
Kingsley, 123 M.S.P.R. 365, ¶ 10. Under section 1201.57(a), she is only required
to make nonfrivolous allegations that, if proven, could establish the jurisdictional
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
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).
5
criteria. Kingsley, 123 M.S.P.R. 365, ¶ 11; see 5 C.F.R. § 1201.4(s). Thus, the
administrative judge erred in requiring the appellant to prove jurisdiction by
preponderant evidence. ID at 24 n.1.
We find it unnecessary here to determine if the administrative judge’s error
was harmful in light of the appellant’s new evidence of jurisdiction presented on
review. Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016)
(observing that the Board will consider evidence submitted for the first time on
review if it is relevant to jurisdiction). T he appellant submits Department of
Labor (DOL) Benefit Statements showing that OWCP began paying her wage
compensation benefits effective January 26, 2018. PFR File, Tab 1 at 15-16.
DOL issued the checks referenced in the Benefit Statement on the same date as
the initial decision in this appeal, and the appellant asserts that this evidence was
not available before the record closed below.4 Id. at 1-2, 15-16; see 5 C.F.R.
§ 1201.115(d) (providing that the Board may grant a petition for review based on
the presentation of material evidence that was not previously available despite
due diligence). Considering this new and material evidence, we find that the
appellant has nonfrivolously alleged that her absence from work is due to her
work-related medical condition. PFR File, Tab 1 at 2; see Simonton v. U.S.
Postal Service, 85 M.S.P.R. 189, ¶¶ 11-12 (2000) (finding that the determination
of whether an individual suffers from a compensable medical condition is within
the exclusive purview of OWCP and neither the employing agency nor the Board
has the authority to make such a determination).
4 For the first time on review, the appellant also submits additional documents that
predate the initial decision on appeal. PFR File, Tab 1 at 14-19. Because the appellant
has not shown that these documents were unavailable below despite her due diligence,
we decline to consider them for the first time on review. 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). Moreover, contrary to the appellant’s argument on review,
the administrative judge informed the appellant and her representative of the date that
the record closed on appeal. PFR File, Tab 1 at 1; IAF, Tab 2 at 2, 18.
6
We also find that the appellant has nonfrivolously alleged that 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. IAF, Tab 1 at 3, Tab 4 at 1-2; PFR File, Tab 4 at 2-4. The
agency file includes CA-17 forms completed by the appellant’s physician
releasing her to perform work subject to specific medical restrictions due to her
carpal tunnel syndrome. IAF, Tab 5 at 44-45. We further find that the appellant
has nonfrivolously alleged that the agency denied her request for restoration. The
agency does not dispute the appellant’s allegation that the agency ordered her to
stay home because of her medical restrictions on or about January 25, 2018, and
denied her request for restoration. IAF, Tab 4 at 1-2; Tab 5 at 5-7, 41; PFR File,
Tab 4 at 8.
Finally, we find that the appellant has made a nonfrivolous allegation that
the denial of restoration was arbitrary and capricious. T o establish jurisdiction
under the fourth jurisdictional element, an appellant must make a nonfrivolous
allegation that the agency failed to comply with the minimum requirement of
5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
her for any such vacancies. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20.
Here, the appellant asserts that the agency failed to properly search the local
commuting area for vacant positions within her medical restrictions. PFR File,
Tab 4 at 8-13. In response, the agency asserted that on April 17, 2018, it
searched for work within the appellant’s restrictions within commuting distance,
no work was found due to the appellant’s “onerous” restrictions, and the search
was ongoing. IAF, Tab 5 at 6. Although the agency file includes documentation
reflecting that a search was performed, the appellant alleges that the job search
was improper and that there is work within her restrictions at her duty station.
IAF, Tab 5 at 30-42; PFR File, Tab 4 at 8-13.
7
For example, the appellant alleges that the agency did not search the entire
commuting area because there are no search results for White Station and Mallory
Station, the search forms for 10 other locations are unsigned, and some of the
limited-duty facility search forms submitted by the agency are blank. PFR File,
Tab 4 at 9-10; IAF, Tab 5 at 30-40. The appellant also alleges that the agency’s
search was improper because it arbitrarily used a 4-hour lifting restriction for the
job search although she was able to lift for 4-8 hours per her February 28, 2017
CA-17 Duty Status Report. PFR File, Tab 4 at 9-11; IAF, Tab 5 at 41, 44. Based
on the foregoing, we find that the appellant has made nonfrivolous allegations
that, if proven, could establish that the agency failed to comply with the minimum
requirement of 5 C.F.R. § 353.301(d) by searching within the local commuting
area for vacant positions to which it could restore her to work as a partially
recovered employee .
Because we find that the appellant has established jurisdiction over her
appeal, she is entitled to a hearing at which she must prove the merits of her
restoration appeal by preponderant evidence. Kingsley, 123 M.S.P.R. 365,
¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). Accordingly, we remand the case to the
regional office to allow the parties an opportunity to submit evidence and
argument on the merits of this restoration appeal. On remand, the administrative
judge also must adjudicate the appellant’s disability discrimination claim after
providing her with notice of the applicable burdens and elements of proof and
affording the parties an opportunity to present evidence and argument on this
issue. IAF, Tab 1 at 2; PFR File, Tab 1 at 2, Tab 4 at 6; see Desjardin v. U.S.
Postal Service, 2023 MSPB 6, ¶¶ 20-21 (finding that the Board is required to
adjudicate claims of discrimination and retaliation in restoration appeals once the
appellant has established that the challenged action is within the Board’s
jurisdiction and clarifying the analytical framework applicable to such claims).
8
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. | Madyun_Nafeesah_A_AT-0353-18-0386-I-1 Remand Order.pdf | 2024-03-27 | NAFEESAH A. MADYUN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-18-0386-I-1, March 27, 2024 | AT-0353-18-0386-I-1 | NP |
1,934 | https://www.mspb.gov/decisions/nonprecedential/Miller_DelroyPH-1221-22-0302-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELROY MILLER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-1221-22-0302-W-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cynthia A. Dill , Esquire, Portland, Maine, for the appellant.
Kelley Thomas and Matthew H. McCoy , Millington, 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 individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge’s finding on
jurisdiction “contradicts the plain meaning of the law.” Petition for Review File,
Tab 1. 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 | Miller_DelroyPH-1221-22-0302-W-1 Final Order.pdf | 2024-03-27 | DELROY MILLER v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-22-0302-W-1, March 27, 2024 | PH-1221-22-0302-W-1 | NP |
1,935 | https://www.mspb.gov/decisions/nonprecedential/Torgersen_Kevin_M_PH-0752-22-0072-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN M. TORGERSEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-22-0072-C-1
DATE: March 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kevin M. Torgersen , Marshfield, Massachusetts, pro se.
Matthew J Harris , Esquire, Concord, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
This matter is before the Board on the appellant’s petition for review of the
compliance initial decision, which denied his petition for enforcement of the
Board’s final decision reversing his removal. For the reasons set forth below, we
GRANT the appellant’s petition for review, REVERSE the compliance initial
decision, FIND the agency in noncompliance with the final decision on 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).
merits, and ORDER the agency to submit satisfactory evidence of compliance
with the Board’s order.
BACKGROUND
On April 16, 2021, the agency removed the appellant from his position as a
Survey Technician with the U.S. Army Corps of Engineers (USACE) for medical
inability to perform the essential duties of his position. Torgersen v. Department
of the Army, MSPB Docket No. PH-0752-22-0072-I-1, Initial Appeal File,
Tab 92, Initial Decision (ID) at 2, 7. On May 23, 2022, the administrative judge
issued an initial decision finding that the agency failed to establish that the
appellant was medically unable to perform the duties of his Survey Technician
position and ordered the agency to cancel the removal and retroactively restore
the appellant, effective April 16, 2021. ID at 13, 21. It also ordered the agency
to pay the appellant the appropriate amount of back pay with interest and to
adjust benefits with appropriate credits and deductions. ID at 21. Neither party
petitioned for review of the initial decision, which became final on June 27, 2022.
ID at 23.
On September 11, 2022, the appellant filed a petition for enforcement.
Torgersen v. Department of the Army , MSPB Docket No. PH-0752-22-0072-C-1,
Compliance File (CF), Tab 1. He did not dispute that the agency restored him to
his former position, but he argued that: (1) the agency had not paid any of the
back pay owed to him; (2) the agency informed him that it did not intend to
include any overtime or differential pay in the back pay award, while failing to
provide him with the records necessary for determining the proper calculation of
any overtime or differential pay; and (3) the agency failed to restore his sick
leave balances. Id. at 4-7. He further argued that he was entitled to overtime that
he earned while working as a Material Handler with the Department of Veterans
Affairs (DVA), from January 30 to July 16, 2022, when he was restored to his2
position at USACE, but that the agency intended to deduct these earnings from its
back pay award. Id. at 6; CF, Tab 6 at 38.
In its responses, the agency admitted that it had not provided the appellant
with his back pay and sick leave because the Defense Finance Accounting Service
(DFAS) had not yet processed it. CF, Tab 3. It explained that the situation was
complicated by the appellant’s dual employment at the USACE (retroactively)
and DVA, but that “a reasonable schedule for full compliance would have back
pay processed no later than November 5, 2022.” Id. at 4, 8-9, 35-36, Tab 30 at 4.
It argued that the Board should deny the appellant’s petition for enforcement
because it had acted in good faith by submitting a back pay Remedy Ticket to
DFAS the day after the appellant provided the agency with the necessary
information. CF, Tab 3 at 4. On January 24, 2023, the agency provided an
update that DVA, working in conjunction with the agency and DFAS, had
cancelled the appellant’s appointment, resulting in a debt owed by the appellant
for his earnings at DVA that would have been offset by his back pay award from
the agency. CF, Tab 31 at 4, Tab 35 at 4-5. However, because the appellant
appealed that debt, DFAS could not process his back pay until the debt appeal
was resolved. CF, Tab 35 at 4-5.
On February 28, 2023, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement without prejudice. CF,
Tab 37, Compliance Initial Decision (CID) at 5.2 Specifically, he found that the
agency, while not in technical compliance with the Board’s final decision, had
acted in good faith to process the appellant’s back pay and benefits adjustments.
CID at 4. He reasoned that DFAS was an entity separate and apart from the
agency—over which the agency had no control—and that the situation was
complicated by the ramifications of the appellant’s dual employment. Id.
2 The administrative judge ruled that the appellant’s petition for enforcement was
denied “at this time.” 3
The appellant has filed a timely petition for review of the compliance
initial decision requesting that the Board order the agency to pay the undisputed
amount of back pay owed to him, along with interest and penalties, and restore
his sick leave. Compliance Petition for Review (CPFR) File, Tab 1 at 5. He also
argued that the administrative judge failed to address his arguments concerning
overtime or rule on his motion to compel the agency’s production of documents
relevant to the same. Id. at 7-10; CF, Tab 11, Tab 25. The agency has responded
in opposition to the petition for review, CPFR File, Tab 3, and the appellant has
replied, CPFR File, Tab 6.3
ANALYSIS
The agency is ordered to submit evidence demonstrating that it properly
calculated the appellant’s overtime and differential pay hours and submitted its
calculations to DFAS.
An agency bears the burden of proving its compliance with a final Board
order, and compliance must be supported by relevant, material, and credible
evidence in the form of documentation or affidavits. See New v. Department of
Veterans Affairs , 106 M.S.P.R. 217, ¶ 6 (2007), aff’d per curiam , 293 F. App’x
779 (Fed. Cir. 2008). Satisfactory evidence of compliance with a back pay order
must include an explanation of how the agency arrived at its figures, evidence of
the compliance actions that the party has completed, along with a reasonable
schedule for full compliance. 5 C.F.R. § 1201.183(a)(1). DFAS is responsible
for calculating and paying the appellant based on information provided to it by
the agency. Walker v. Department of the Army , 90 M.S.P.R. 136, ¶ 15 (2001).
The agency’s submissions must show that it provided DFAS with pertinent
3 The appellant has also requested that the Board accommodate his disability by
allowing him extra time to submit pleadings as well as the ability to amend or revise
previously submitted pleadings as needed. CPFR File, Tab 1 at 4-5. The Board
subsequently granted the appellant an extension of time to file his reply to the
appellant’s response to the petition for review. CPFR File, Tabs 4-6; see 5 C.F.R.
§ 1201.144(f). We will consider future motions by the appellant in accordance with our
regulations.4
information about the appellant necessary for this calculation. Walker,
90 M.S.P.R. 136, ¶ 15; see 5 C.F.R. § 550.805; see also ID at 31 (DFAS Back
Pay Checklist).
Here, the administrative judge did not expressly address whether the
agency submitted credible evidence in the form of documentation or affidavits
that it provided DFAS with the pertinent information necessary for the back pay
calculation. The agency produced evidence that it submitted a back pay Remedy
Ticket to DFAS on August 10, 2022. CPFR File, Tab 3 at 23; CF, Tab 9 at 46-59,
75-78, 90. However, there is an unresolved factual dispute as to whether the
information that the agency provided to DFAS reflected the proper overtime and
differential pay hours.4
The agency submitted to DFAS timecards certified by the appellant on
August 9, 2022, reflecting that the appellant would have worked 40 hours of basic
pay per week at USACE. CF, Tab 3 at 34, 36, Tab 9 at 46-60. On August 28,
2022, after the agency had submitted the certified timecards to DFAS, the
appellant emailed the agency representative to request copies of his Survey Crew
Chief’s timecards and travel assignments for the purposes of determining any
overtime or shift differentials that the appellant may have also worked during the
relevant period. CF, Tab 9 at 79. The agency denied the appellant’s request on
the basis that the appellant had already certified his timecards—which it had
already supplied to DFAS—and that there was “no legal authority” for it to
provide the requested timecards or travel assignments. Id. at 80.
In his petition for enforcement, the appellant raised the issue of his
possible entitlement to overtime or shift differentials and the agency’s refusal to
provide him with the information necessary for determining the same. CF, Tab 1
4 It is unclear whether the appellant asserts potential entitlement to travel expenses.
CPFR File, Tab 1 at 10. In any event, incidental expenses such as per diem and travel
expenses are not covered by the phrase “pay, allowances or differentials” under either
the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A), or its implementing regulations, found at
5 C.F.R. § 550.805. See Campbell v. U.S. Postal Service , 75 M.S.P.R. 273, 278 (1997).5
at 5-6, Tab 12 at 9-10. He submitted a discovery request for his Survey Crew
Chief’s timecards and travel assignments, CF, Tab 11, and moved to compel the
agency to produce the requested documentation, CF, Tab 25. On review, the
appellant states correctly that the administrative judge did not address his
arguments concerning overtime or rule on his motion to compel. CPFR File,
Tab 1 at 6-7. In response, the agency has argued, among other things, that any
dispute about the inclusion of overtime in his back pay was premature because it
was still being adjudicated by DFAS. CPFR File, Tab 3 at 27; CF, Tab 29.
We disagree with the agency’s position that any dispute about overtime was
premature. Per the agency’s own assertion, it submitted to DFAS that the
appellant would have earned 40 hours of basic pay per week at the USACE. CF,
Tab 3 at 34, 36. Whether the agency has proven that it complied with the Board’s
back pay order by supplying DFAS with the correct information is ripe for
adjudication. See 5 CFR § 550.805(a)(2).
When the Board reverses a personnel action, it orders that the appellant be
placed, as nearly as possible, in the same situation he would have been in had the
wrongful personnel action not occurred. Rittgers v. Department of the Army ,
123 M.S.P.R. 31, ¶ 13 (2015). Overtime back pay may be computed based on
either the appellant’s own overtime history or the average overtime hours worked
by similarly situated employees during the relevant time period. Id. Although
the appellant is not entitled to receive a windfall, he is entitled to be restored to
the status quo ante, and the agency must use the method of computation most
likely to achieve this goal. Id. The Board will not nullify the method employed
by the agency in calculating overtime back pay in the absence of a showing that
the method was unreasonable or unworkable, id., but the agency bears the
ultimate burden of proving its compliance with a Board order, New, 106 M.S.P.R.
217, ¶ 6.
Moreover, where there is no regulatory right to discovery in compliance
cases, the Board may require the presentation of evidence when it is necessary to6
determine whether an agency has complied with its decision. Williams v.
Department of the Navy , 43 M.S.P.R. 114, 116-17 (1990). In this case, the
agency has not presented clear and understandable argument and evidence that its
determination, that the appellant would not have worked overtime or differential
time, was accurate. See Tubesing v. Department of Health and Human Services ,
112 M.S.P.R. 393, ¶ 17 (2009) (stating that an agency’s assertion of compliance
must include a clear explanation of its compliance actions supported by credible
evidence and understandable documentary evidence). Considering the lack of
probative evidence in the record on the overtime and differential pay issue, we
find that there is a genuine issue of fact requiring the production of evidence. We
order the agency to submit evidence and argument demonstrating that it properly
calculated the appellant’s overtime hours for April 16, 2021, through July 17,
2022, and that its submission to DFAS reflects that calculation. The agency’s
submission shall include the records for similarly situated individual(s) during the
period in question regardless of whether it used this method of computation.5
The appellant has also asserted that he is entitled to the 16.5 hours of
overtime pay that he earned at DVA. CPFR File, Tab 1; CF, Tab 9 at 31-35,
42-47. The agency has explained to the appellant that it could not speak to how
DFAS would treat the overtime hours that he earned at DVA, and it has argued
that the issue is premature. CF, Tab 9 at 42; CPFR File, Tab 3 at 27 n.9. We find
it appropriate to resolve this issue and provide clarity to the parties.
Pursuant to 5 U.S.C. § 5596(b)(1)(A), an agency must deduct from a back
pay award any amount an appellant earned from employment obtained as a
replacement for his position during the period the corrected personnel action was
in effect. LaBatte v. Department of the Air Force , 58 M.S.P.R. 586, 595 (1993);
5 C.F.R. § 550.805(e)(1). To establish that replacement earnings received during
the period that an employee was improperly removed from his position should be
5 We disagree with the agency’s position that the Privacy Act bars it from supplying this
evidence. CF, Tab 29 at 11-13. 7
viewed as “moonlight” employment, and thus not deductible from a back pay
award, the employee must show that he could or would have worked at the
interim employment had the removal not occurred. Weber v. Department of
Justice, 88 M.S.P.R. 345, ¶ 11 (2001). We find that the appellant’s full-time
position as a Materials Handler at DVA was replacement employment—not
moonlight employment—and, thus, all earnings from this position are deductible.
CF, Tab 6 at 38.
The agency is ordered to submit evidence demonstrating full compliance with the
Board’s order.
Furthermore, we find that the agency’s continued technical noncompliance
with the Board’s order warrants an outcome different than that of the compliance
initial decision. The compliance initial decision was issued in accordance with
the Board’s regulation at 5 C.F.R. § 1201.183(4), which provides that, if a judge
finds that there has been a good faith effort to take all actions required to be in
compliance with the final decision, he will state those findings in a decision,
which will be subject to the procedures for petitions for review. However, an
agency’s good faith attempts to comply do not preclude enforcement indefinitely:
the Board is required to ensure that an agency substantively complies with its
decision. See generally Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984) (denying the agency’s motion to dismiss because only a finding
of full compliance could render the case moot and remanding the compliance
issue to the Board). As of yet, the agency has not informed the Board that it has
achieved full compliance with the initial decision, despite the instruction in the
compliance initial decision to do so. CID at 4.
Moreover, the Board has held that the agency is responsible for ensuring
that its agent, DFAS, satisfies the agency’s obligations. See Tichenor v.
Department of the Army , 84 M.S.P.R. 386, ¶ 8 (1999). The administrative judge
appeared to rely on the following assertion of the agency representative as set
forth in the agency’s January 24, 2023, pleading: “[i]t is the [a]gency’s []8
understanding that DFAS cannot offset [the appellant’s] VA debt from his back
pay until his separate debt appeal is resolved, and that DFAS will not be able to
complete processing [t]he appellant’s back pay until it can offset the VA debt.”
CID at 3-5; CF, Tab 35 at 5. The agency provides the same explanation for its
failure to restore the appellant’s sick leave balances. CPFR File, Tab 3 at 26 n.8.6
However, the agency representative’s explanation is not evidence, and it is not
satisfactory. Absent any evidence that DFAS has refused to comply with
instruction by the agency to issue payment for back pay and restore sick leave
balances, we disagree with the administrative judge’s conclusion that the agency
has no control over DFAS. CID at 4; see King v. Department of the Navy ,
130 F.3d 1031, 1034 (Fed. Cir. 1997); Tichenor, 84 M.S.P.R. 386, ¶ 8.
Lastly, the appellant requests both interest on his back pay and that the
Board assess daily penalties on the agency for its noncompliance. CPFR File,
Tab 1 at 11. To address the appellant’s concern about interest on his back pay
award, we note that the agency must pay the appellant interest on his back pay in
accordance with the Back Pay Act to be in compliance with the Board’s order.
5 U.S.C. § 5596(b)(2); 5 C.F.R. § 550.806; see ID at 21. The agency’s
submission demonstrating compliance must explain how it calculated the interest
on the back pay award. Antunes v. U.S. Postal Service , 61 M.S.P.R. 408, 410
(1994); 5 C.F.R. § 1201.183(a)(1)(i).
Concerning the appellant’s request for daily penalties, the Board generally
does not award damages or monetary sanctions against a party for failure to
comply with any order, including an order directing the payment of back pay.
Cunningham v. Department of Veterans Affairs , 91 M.S.P.R. 523, ¶ 3 (2002);
Doiron v. U.S. Postal Service , 68 M.S.P.R. 170, 173 (1995). However, the
6 The agency further notes that it has approved advanced sick leave for the appellant
and would do so again if requested by the appellant. CPFR File, Tab 3 at 26 n.8; CF,
Tab 3 at 38-39, Tab 30 at 5. However, as the appellant is entitled to an official
restoration of his sick leave balances, we find that the agency’s promises to act in good
faith are insufficient to show compliance with the Board’s order. See Walker,
90 M.S.P.R. 136, ¶ 27. 9
Board’s authority to impose sanctions as a means of enforcing compliance
includes the authority to order that the responsible agency official “shall not be
entitled to receive payment for service as an employee during any period that the
order has not been complied with.” 5 U.S.C. § 1204(e)(2)(A). Sanctions should
be imposed only when the agency has failed to exercise basic due diligence
expected of it in complying with an order or has exhibited negligence or bad faith
in its efforts to so comply. Peck v. Office of Personnel Management , 35 M.S.P.R.
175, 178 (1987); 5 C.F.R. § 1201.43.
We recognize that the issuance of a debt owed by the appellant in the
amount of $10,076.08, which should be completely offset by a back pay award,
has nonetheless created a stressful situation for the appellant.7 CF, Tab 31 at 4,
Tab 36. We also recognize that the agency’s alleged inability to rectify this
“debt” and satisfy its other obligations has been ongoing for some time—and
without sufficient explanation. CF, Tab 35 at 5; CPFR File, Tab 3. We therefore
find the agency in noncompliance with the final decision reversing the appellant’s
removal.
Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and any objections to that evidence. Thereafter, the Board will issue
7 Notably, to the appellant’s understandable objection, the debt letter issued to him on
October 22, 2022, notifies him that interest and additional penalties at a rate of up to
6% could be imposed on his “debt.” CPFR File, Tab 1 at 11; CF, Tab 31 at 4, 6. 10
a final decision fully addressing the appellant’s petition for review of the
compliance initial decision8 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
We ORDER the agency to submit to the Clerk of the Board within 20 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency
must serve all parties with copies of its submission.
The agency’s submission shall demonstrate, among all other requirements,
that it properly calculated the appellant’s overtime and differential pay hours
back pay and submitted its calculations to DFAS. The agency’s submission shall
include the records for similarly situated individual(s) during the period in
question regardless of whether it used this information in its overtime
computation.9
8 The subsequent decision may incorporate the analysis and findings set forth in this
Order.
9 The fact that a dispute remains about overtime and differential pay shall not delay the
agency from immediately paying the appellant the undisputed amount and producing
evidence of such payment. See Russo v. U.S. Postal Service , 107 M.S.P.R. 296, ¶ 15
(2007).11
The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. PH-0752-22-
0072-X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653–7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions also may be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).12
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Torgersen_Kevin_M_PH-0752-22-0072-C-1_Final_Order.pdf | 2024-03-27 | KEVIN M. TORGERSEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-22-0072-C-1, March 27, 2024 | PH-0752-22-0072-C-1 | NP |
1,936 | https://www.mspb.gov/decisions/nonprecedential/Smith_Brenda_J_AT-0831-18-0339-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA J. SMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-18-0339-I-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brenda J. Smith , Winder, Georgia, 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 Office of Personnel Management’s (OPM) final decision finding that
the appellant was not entitled to an annuity under the Civil Service Retirement
System (CSRS). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings 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).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant failed to prove that she was entitled to an annuity because
her retirement deductions were never cashed and therefore remained in her
retirement account, we AFFIRM the initial decision.
On August 19, 1980, the appellant completed and submitted to OPM an
“Application for Refund of Retirement Deductions.” Initial Appeal File, Tab 5
at 14. On November 12, 1980, OPM authorized a refund to the appellant in the
amount of $4,973.62. Id. at 9. In November 2009, 29 years later, the appellant
sent OPM a request for a deferred annuity. Id. at 16-17. She based her claim on
her allegation that she did not cash the refund check, but instead returned it to her
former employing agency after her separation from service. Hearing Compact
Disc (testimony of the appellant). Thus, the record shows that OPM attempted
payment of the appellant’s lump-sum credit by check, and the appellant admits
that she received it.
Generally, the receipt of the payment of the lump-sum credit by an
employee voids all annuity rights under the CSRS based on the service on which
the lump-sum credit is based. 5 U.S.C. § 8342(a). The appellant’s argument
raises the question of the meaning of the phrase “receipt of the payment of the
lump-sum credit” in § 8342(a). In the absence of a statutory definition of that
3
phrase or clear guidance as to its meaning in the relevant legislative history, the
words of that statute will be interpreted as taking their ordinary, contemporary,
common meaning. Weed v. Social Security Administration , 107 M.S.P.R. 142,
¶ 6 (2007). The word “receive” generally means to take into one’s possession,
get, accept, or acquire. Webster’s New World Dictionary 1212
(College Ed. 1968). It can also connote the taking into possession and control.
Receive, Black’s Law Dictionary (5th ed. 1979). Here, there is no dispute that
the appellant took into her possession and controlled the “payment,” which was
made by check. Thus, the appellant has not met her burden of proving by
preponderant evidence that she is entitled to an annuity because she did not
“receive” payment of the lump-sum credit. See Vidal v. Office of Personnel
Management, 267 F. App’x 946, 948 n.1 (Fed. Cir. 2008) (suggesting that receipt
of a refund check, without cashing it, was enough to void annuity rights);
Resnick v. Office of Personnel Management , 120 M.S.P.R. 356, ¶ 5 (2013)
(holding that the appellant bears the burden of proof to show entitlement to a
retirement annuity by preponderant evidence).
Even if § 8342(a) were read to require the cashing or negotiating of a
refund check in order to void annuity rights, the appellant has still not met her
burden under the circumstances of this case. In Rint v. Office of Personnel
Management, 48 M.S.P.R. 69, 71 (1990), aff’d, 950 F.2d 731 (Fed. Cir. 1991)
(Table), the former employee applied for a refund of his retirement deductions in
April 1951, and OPM authorized payment of the refund in June 1951. In 1988,
37 years later, Mr. Rint applied for a deferred annuity, asserting that he had not
received a refund of his retirement deductions. Id. at 72. The Board held that,
under the circumstances, when there was a lengthy delay in raising a claim and
the only definitive record of actual payment, the cancelled Treasury check, was
not available because the Department of the Treasury maintained cancelled check
records for only 10 years, OPM would be unduly prejudiced if the Board required
it to produce definitive proof of the appellant’s actual receipt of the check. Id.
4
The Board concluded that Mr. Rint failed to overcome the evidence that OPM had
authorized issuance of the check and thereby prove that he did not receive a
refund of his retirement contributions. Id.
This case differs from Rint because the appellant does not deny receipt of
the retirement check. Nevertheless, the principle set forth in Rint and its progeny
applies with equal force in this case. As noted, the appellant admits that she
received the check, but claims that she never negotiated it. However, she has not
produced the check, and her sworn testimony is the only evidence that she did not
cash it. Thus, there is a delay of 29 years in raising her claim that the funds from
her retirement account were not cashed, and the only definitive record of actual
payment, the cancelled Treasury check, is not available because of the appellant’s
more than 10-year delay in asserting that she did not negotiate the check. OPM
would be unduly prejudiced if the Board required it to produce definitive proof
that the check the appellant received had been negotiated. See Deleon v. Office of
Personnel Management , 49 M.S.P.R. 369, 372–73 (1991); Rint, 48 M.S.P.R.
at 72. Under these circumstances, we find that even the appellant’s sworn
assertion that her retirement contributions remained in the retirement fund
because they were received but not cashed would be insufficient evidence to
prove that she is entitled to a deferred retirement annuity. See Sosa v. Office of
Personnel Management , 76 M.S.P.R. 683, 685-86 (1997).
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Smith_Brenda_J_AT-0831-18-0339-I-1__Final_Order.pdf | 2024-03-27 | BRENDA J. SMITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-18-0339-I-1, March 27, 2024 | AT-0831-18-0339-I-1 | NP |
1,937 | https://www.mspb.gov/decisions/nonprecedential/Bowser_Andre_J_NY-4324-17-0066-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRE J. BOWSER,
Appellant,
v.
ENVIRONMENTAL PROTECTION
AGENCY,
Agency.DOCKET NUMBER
NY-4324-17-0066-I-1
DATE: March 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre J. Bowser , Holyoke, Massachusetts, pro se.
Amanda B. Stulman , 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 Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal for failure to prosecute. 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 June 28, 2015, the appellant was transferred from his position in the
Department of Labor’s Office of Public Affairs to a competitive service GS-14
Supervisory Public Affairs Specialist position with the Environmental Protection
Agency. Initial Appeal File (IAF), Tab 9 at 35; see Petition for Review (PFR)
File, Tab 1 at 11. The appellant’s promotion to a supervisory position was
subject to his satisfactory competition of a 1-year probationary period. IAF,
Tab 9 at 35. On March 16, 2016, the agency issued a letter advising the appellant
that, due to performance deficiencies and based on his inability to demonstrate
effective leadership, he did not satisfactorily complete his 1-year supervisory
probationary period. IAF, Tab 10 at 27-32. The letter also informed the
appellant that he was being reassigned to a non-supervisory position, effective
April 16, 2016. Id. at 27.
On April 29, 2016, the appellant filed an EEO complaint, alleging that the
agency discriminated against him on the basis of his “parental and marital” status,
in retaliation for his military service, and in reprisal for his EEO activity when it
reassigned him to a non-supervisory position. IAF, Tab 1 at 12, 17-35. By a
December 7, 2016 email, the agency provided the appellant with a copy of the
Report of Investigation regarding his claim and informed him that because it had
not issued a final decision within 120 days after the date he filed his complaint,
he had the immediate right to file an appeal with the Board. IAF, Tab 1 at 8-10.
The appellant filed a timely appeal with the Board on December 29, 2016,
alleging that the agency reduced him in grade and reassigned him to a
nonsupervisory position based on “parental and marital status discrimination,”
and military status discrimination in violation of USERRA. IAF, Tab 1 at 5. The
administrative judge issued an order informing the appellant that because he was
reassigned while serving in a supervisory probationary period, the Board may not
have jurisdiction over his appeal, and apprising him of his burden of establishing
Board jurisdiction over his appeal. IAF, Tab 2 at 2-3. The administrative judge2
also issued an order separately docketing the appellant’s military status
discrimination claim as the instant USERRA appeal. IAF, Tab 3. On January 20,
2017, the administrative judge issued a second jurisdictional order which
provided the appellant with the requisite notice of the Board’s jurisdictional
standard for USERRA appeals and ordered him to submit evidence or argument
demonstrating that the Board had jurisdiction over his appeal within 10 days.
IAF, Tab 8.
After the appellant failed to respond, the administrative judge issued a
Second Order to Show Cause. IAF, Tab 12. The February 3, 2017 order
summarized the appellant’s failure to submit a jurisdictional response and stated
that his failure to respond to the second show cause order would result in
dismissal of his appeal. Id. On February 6, 2017, the appellant submitted a
narrative response addressing both his USERRA and “marital and parental” status
discrimination claims. IAF, Tab 13. On February 13, 2017, the administrative
judge issued an order setting a telephonic status conference for February 27th.
IAF, Tab 14. The appellant failed to call in to the scheduled status conference,
and on February 27, 2017, the administrative judge issued an order summarizing
the conference, noting that the appellant’s continued failure to comply with her
orders would result in sanctions, “to include the dismissal of his appeal with
prejudice,” and ordering the appellant to file evidence and argument
demonstrating good cause for his failure to appear no later than March 6, 2017.
IAF, Tab 15. Having received no response, on March 7, 2017, the administrative
judge issued an initial decision dismissing the appeal with prejudice for failure to
prosecute, IAF, Tab 16, Initial Decision (ID) at 1-3.
The initial decision became final on April 11, 2017. ID at 3. On July 9,
2018, the appellant filed a pleading titled “Motion for Compensatory Damages,”
which was docketed as a petition for review of the March 7, 2017 initial decision.
PFR File, Tabs 1, 3.3
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is filed late by more than 1 year and 2 months. The
Board’s regulations require a petition for review to be filed within 35 days after
the initial decision is issued; or, if a party shows that he received the initial
decision more than 5 days after issuance, within 30 days after receiving it.
5 C.F.R. § 1201.114(e). The Board will excuse the untimely filing of a petition
for review only upon a showing of good cause for the delay. Palermo v.
Department of the Navy , 120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g).
An untimely filed petition for review must be accompanied by a motion that
shows good cause for the delay in filing and an affidavit or sworn statement that
includes a specific and detailed description of the circumstances causing the
delay. Palermo, 120 M.S.P.R. 694, ¶ 4.
The Office of the Clerk of the Board acknowledged receiving the petition
for review and informed the appellant that: (1) the petition was untimely filed;
(2) the Board’s regulations require that a petition that appears to be untimely filed
be accompanied by a motion to accept the filing as timely and/or to waive the
time limit for good cause; (3) such a motion must be supported by an affidavit or
declaration made under penalty of perjury showing either that the petition was
timely filed or that there is good cause for the late filing; and (4) the Board may
dismiss the petition for review as untimely if the appellant did not provide a
motion with an affidavit or declaration. PFR File, Tab 2 at 1-2. The appellant
filed a motion for the Board to waive the filing deadline for good cause shown.
PFR File, Tab 5 at 4-8. In his pleading, the appellant explained that he was
deployed on military orders during the adjudication of his Board appeal, and was
“on military convalescence leave (in hospital)” for several weeks after the initial
decision was issued. Id. at 4. The appellant also indicated that he has been a
“physical/mental health trauma patient” since returning from his deployment, and
that he is “currently homeless and did not have regular access to a computer.” Id.
at 4-6. The appellant also attached a copy of his military orders and a4
Department of Veterans Affairs disability rating letter. Id. at 9-17, 19-20.
Addressing the merits of his claim, the appellant argued that he was subject to
“undue scrutiny, harsh words, and generally poor treatment” leading up to his
reassignment, and that his complaint is based on “military discrimination, as well
as parental and marital discrimination.” Id. at 6-8.
To establish good cause for waiving the Board’s filing deadline, an
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980). 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. 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). Similarly, in order to establish that
an appellant’s untimely petition for review was the result of illness, he must:
(1) identify the time period during which he suffered from the illness; (2) submit
medical and/or 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 petition or a request for an extension of time. Chalom v.
Department of the Navy , 86 M.S.P.R. 218, ¶ 5 (2000); Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437-38 (1998).
The appellant is pro se, but the delay here was significant. See Crook v.
U.S. Postal Service , 108 M.S.P.R. 553, ¶ 6 (finding a 1-month filing delay
significant), aff’d per curium , 301 F. App’x 982 (Fed. Cir. 2008). Aside from
asserting that he has a service-connected disability, the appellant has not
explained what relation his disability has to any medical condition, or explained
how it prevented him from timely filing a petition for review. See PFR File,5
Tab 5 at 19-20. Based on the provided record, the appellant has not met his
burden of establishing good cause for his delay in filing due to an illness or
medical condition.
Regarding the appellant’s argument that his failure to respond to the
administrative judge’s orders and his delay in filing his petition for review is due
to the fact that he was on military deployment, we similarly find no merit to the
appellant’s argument. Although the appellant has not specifically identified the
applicable statutory provision, under the Servicemembers Civil Relief Act of
2003 (SCRA), 50 U.S.C. § 3936 and its predecessor, the Soldiers’ and Sailors’
Civil Relief Act of 1940 (SSCRA), 50 U.S.C. § 526(a), the “period of a
servicemember’s military service may not be included in computing any period
limited by law, regulation, or order for the bringing of any action or proceeding
in a court, or in any board, bureau, commission, department, or other agency of a
State (or political subdivision of a State) or the United States by or against the
servicemember or the servicemember’s heirs, executors, administrators, or
assigns.” 50 U.S.C. § 526(a); see Brown v. U.S. Postal Service , 106 M.S.P.R. 12,
¶¶ 12-14 (2007) (applying the SCRA tolling provision to Board proceedings).
The Board has also held that the relevant filing periods are automatically tolled
for periods during which a servicemember is on active duty, and an appellant
“need not show that the circumstances of his military service actually impaired
his ability to pursue his legal rights in a timely fashion.” Neighoff v. Department
of Homeland Security , 122 M.S.P.R. 86, ¶ 10 (2015) (quoting Henry v. U.S.
Postal Service, 69 M.S.P.R. 555, 558 (1996)).
Here, the records provided by the appellant show that his most recent active
duty military deployment began on July 12, 2016, and ended on February 15,
2017, at the latest.2 PFR File, Tab 5 at 17, 20. The order and summary of the
2 Although the appellant’s DD-214 identifies his active duty deployment release date as
February 14, 2017, a Department of Veterans Affairs summary of disability benefits the
appellant provided identifies his discharge date as February 15, 2017. PFR File, Tab 5
at 17, 20; see Neighoff, 122 M.S.P.R. 86, ¶ 9 (finding that a DD-214 form is controlling6
status conference informing the appellant that his appeal would be dismissed for
failure to prosecute if he did not respond to the administrative judge’s order was
issued after his deployment ended, on February 27, 2017, as was the initial
decision dismissing the appeal on March 7, 2017. See IAF, Tabs 15, 16. The
appellant did not file the petition for review until July 9, 2018, more than 1 year
and 2 months after the petition for review filing deadline, and he has not alleged
that he has served in another active duty deployment since his February 15, 2017
release date. Accordingly, we conclude that the automatic tolling provision of the
SCRA is not applicable in this case. The appellant thus has failed to establish the
existence of circumstances beyond his control affecting 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 for review. We
dismiss the petition for review as untimely filed.
Finally, even if the petition had been timely filed, we would not find that
the administrative judge abused her discretion by dismissing the appeal for failure
to prosecute. Holland v. Department of Labor , 108 M.S.P.R. 599, ¶ 9 (2008)
(holding that the Board will not reverse an administrative judge’s determination
regarding sanctions absent a showing of abuse of discretion). Although sanctions
should be imposed only when a party has failed to exercise basic due diligence in
complying with Board orders or has exhibited negligence or bad faith in its
efforts to comply, Chandler v. Department of the Navy , 87 M.S.P.R. 369, ¶ 6
(2000), the Board has found that an appellant’s repeated failure to respond to
multiple Board orders reflects a failure to exercise basic due diligence, Heckman
v. Department of the Interior , 106 M.S.P.R. 210, ¶ 6 (2007). The appellant
missed a scheduled status conference and failed to respond to an order to show
cause. See IAF, Tab 15; Tab 16 at 1. Even when served with an order explicitly
advising him of the possibility of dismissal, he did not provide any explanation or
as to the date of the appellant’s release from active duty). 7
justification for his failure to act.3 IAF, Tab 15. Dismissal of the appeal for
failure to prosecute, though extreme, serves the ends of justice in this case. See
Heckman, 106 M.S.P.R. 210, ¶ 6.
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 underlying appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 It is also clear that, despite his deployment, the appellant was well aware that he had
an active case before the Board, because he filed a response to the second show cause
order on February 6, 2017. IAF, Tab 13.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Bowser_Andre_J_NY-4324-17-0066-I-1 Final Order.pdf | 2024-03-27 | ANDRE J. BOWSER v. ENVIRONMENTAL PROTECTION AGENCY, MSPB Docket No. NY-4324-17-0066-I-1, March 27, 2024 | NY-4324-17-0066-I-1 | NP |
1,938 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Cori_A_DA-3443-17-0131-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORI A. WILSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-3443-17-013I-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James R. Hefflin , Newport Beach, California, for the appellant.
Cyntrena Cross-Peart , 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 that
dismissed as untimely filed with no good cause shown, for lack of jurisdiction,
and as barred by collateral estoppel, her refiled appeal in which she alleged that
the agency failed to implement an order issued by the Equal Employment
Opportunity Commission (EEOC) and that she was constructively discharged and
subjected to reprisal, resulting in her involuntary retirement. For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
forth below, we DISMISS the appellant’s petition for review as untimely filed
with no good cause shown and DENY her request to reopen her appeal.
BACKGROUND
In an April 14, 2017 initial decision based on the written record, Wilson v.
Department of Justice , MSPB Docket No. DA-3443-17-0131-I-1, Initial Appeal
File (IAF), Tab 18, Initial Decision (ID), the administrative judge considered the
appellant’s claims that the agency failed to implement an order issued by EEOC
and that she was constructively discharged and subjected to reprisal, resulting in
her involuntary retirement. The administrative judge found that the appellant’s
appeal was untimely filed with no good cause shown, ID at 2-6, that the Board
lacks jurisdiction to review the actions of EEOC’s Office of Federal Operations,
ID at 6-7, and that the appeal is barred by the doctrine of collateral estoppel,2
ID at 7-8. Accordingly, the administrative judge dismissed the appeal. ID at 2,
9. She notified the parties that the initial decision would become final on
May 19, 2017, unless either party filed a petition for review by that date. ID at 9.
On July 10, 2018, the appellant filed a “Petition for Review, Request to
Reopen.” Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued a
2 The administrative judge found that the issue of whether the appellant’s retirement
was involuntary due to a constructive removal in reprisal for equal employment
opportunity activity is identical to that involved in one of her previous appeals that was
joined with another for adjudication. ID at 7-8. In an initial decision on those joined
appeals, the administrative judge dismissed the alleged involuntary retirement appeal
for lack of jurisdiction, after finding, inter alia, that the appellant failed to support her
claim, Wilson v. Department of Justice , MSPB Docket Nos. DA-0752-11-0582-I-3,
DA-0752-13-0038-B-1, Initial Decision at 2, 20, 10-15 (Feb. 28, 2014). The full Board
denied the appellant’s petition for review of that decision. Wilson v. Department of
Justice, MSPB Docket Nos. DA-0752-11-0582-I-3, DA-0752-13-0038-B-1, Final Order
(Feb. 27, 2015). ID at 7. The administrative judge here further found that the issue of
the appellant’s alleged involuntary retirement was actually litigated in the prior case
because the Board thoroughly determined that it lacked jurisdiction, that the
determination of the issue was necessary to the resulting judgment, and that the
appellant had a full and fair opportunity to litigate the issue in the prior action. ID at 8.
The administrative judge therefore found the appellant’s current claim of constructive
removal/involuntary retirement barred by collateral estoppel. See Hau v. Department of
Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016); ID at 8.2
letter stating that the petition appeared to be untimely filed because it was not
postmarked or received on or before May 19, 2017. PFR File, Tab 2 at 1.
The Clerk of the Board afforded the appellant an opportunity to file a motion to
accept the filing as timely and/or to waive the time limit for good cause, and
stated that such a motion must be accompanied by a statement signed under
penalty of perjury or an affidavit, postmarked, if mailed, or sent by facsimile, on
or before July 26, 2018. Id. at 2. In response,3 the appellant objected to the
Board’s order regarding timeliness, stating that she was relying “on the
documents in her initial filing for the petition for review, and the record in this
matter.” PFR File, Tab 3. The agency urged that the appellant’s petition for
review be dismissed as untimely, PFR File, Tab 4, and the appellant replied in
opposition to the agency’s response, PFR File, Tab 5.
ANALYSIS
The Board’s regulations require that a petition for review be filed within
35 days after the date of issuance of the initial decision, or, if a party shows that
he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The appellant does
not indicate that she received the April 14, 2017 initial decision more than 5 days
after it was issued. Therefore, as stated in the initial decision, the petition for
review was due 35 days later, on May 19, 2017. ID at 9. Filed on July 10, 2018,
the petition for review was more than 14 months late.
The Board will waive the filing deadline for a petition for review upon a
showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause for the untimely filing by showing that
he exercised due diligence or ordinary prudence under the particular
3 Although the appellant’s response was filed 1 day late, we have considered it.3
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
a party 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
limit or unavoidable casualty or misfortune that similarly shows a causal
relationship to her ability to timely file her petition. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
As noted, the appellant’s initial filing on review is a “petition for
review/request to reopen” her appeal. PFR File, Tab 1 at 2. She has submitted a
May 16, 2018 facsimile transmission to the Chief Administrative Judge (CAJ) of
the Dallas Regional Office wherein the appellant stated that, as of that date, no
actions had been taken on requests she made during adjudication below,
specifically, for an investigation into the administrative judge’s having
improperly placed into the record two submissions she did not intend to be
included in this record, and for the withdrawal of those documents.4 Id. at 9.
The appellant has also submitted the CAJ’s response, advising her that the means
to challenge the administrative judge’s failure to rule on her motion regarding the
two submissions is through a petition for review,5 and referring her to the Board’s
Public Website under “Inspector General” for information regarding the Board’s
investigative function. Id. at 6. The appellant has also submitted the CAJ’s
response to her subsequent facsimile transmission in which she again questions
the status of her request for an investigation, id. at 5, and the CAJ’s explanation
that the functions of the Board’s administrative judges are not investigatory, id.
4 Both submissions raise the issue of the appellant’s alleged involuntary retirement.
IAF, Tabs 10, 11.
5 Contrary to the appellant’s claim, the CAJ did not indicate or otherwise suggest that
the initial decision was “flawed.” PFR File, Tab 3 at 1, Tab 5 at 3, Tab 1 at 6.4
at 4. Finally, the appellant has submitted her July 10, 2018 email to the Board’s
Office of Inspector General (OIG) regarding this matter, asking the OIG to review
it. Id. at 10. In response to these submissions, the agency argued that the
appellant’s petition for review and request to reopen should be dismissed as
untimely filed. PFR File, Tab 4. The appellant has replied, first complaining
about the actions of the agency representative in other prior matters, PFR File,
Tab 5 at 1-3, and urging that the two submissions that she filed during the
proceeding below were intended to be new appeals but were never docketed as
such. Id. at 3. In support of this claim, the appellant has provided a screen shot
of the pleadings filed in this matter, showing the two submissions at issue
described as “Appellant’s Submission” and “Appellant’s Submission 2.”
Id. at 13.
Upon consideration, we find that the appellant has failed to establish good
cause for her untimely petition for review. First, the length of the filing delay,
14 months, is not minimal, but rather, considerable. In addition, she has been
represented throughout these proceedings. Sofio v. Internal Revenue Service ,
7 M.S.P.R. 667, 670 (1981). To the extent she has attempted to explain her delay,
any such explanation is unavailing. A number of the documents she has
submitted on review are not new and/or are part of the record below. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980); see, e.g., PFR File, Tab 1 at 7-8,
Tab 5 at 6-12. Those that are not new are not material to the timeliness matter
here at issue. The appellant’s complaints regarding the processing of her appeal
below, specifically, that the administrative judge improperly accepted into the
record the two pleadings and/or allegedly failed to construe them as the appellant
intended and that the administrative judge failed to respond to her request for an
investigation into same, may have been raised in a timely filed petition for
review, but they provide no basis for consideration under the present5
circumstances, absent a reason for the lateness of the claims.6 The appellant,
however, has failed to proffer any such explanation. Her suggestion that her
petition for review was timely because she filed it after she received responses to
her inquiries from the CAJ, PFR File, Tab 5 at 4, lacks merit. Not only did she
not timely bring the matter to the attention of the CAJ, but the information
regarding the administrative judge’s actions or inactions during adjudication was
or could have been known to the appellant while her appeal was pending below.7
The appellant’s 14-month delay in bringing these matters to the full Board by
filing a timely petition for review does not reflect due diligence or ordinary
prudence. Nor does it constitute evidence of the existence of circumstances
beyond the appellant’s control that affected her ability to comply with the time
limit or of unavoidable casualty or misfortune which similarly shows a causal
relationship to her inability to timely file. Miller v. Department of the Army ,
112 M.S.P.R. 689, ¶ 13 (2009).
ORDER
Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown and exercise our discretion not to grant the appellant’s request
to reopen her appeal.8 This is the final decision of the Merit Systems Protection
Board on the timeliness of the petition for review. The initial decision remains
the final decision of the Board regarding the implementation of EEOC’s order and
the appellant’s alleged constructive discharge/involuntary retirement claim.
6 Moreover, as we have noted, the two documents that form the basis of the appellant’s
complaints regarding the administrative judge’s actions or inactions relate to the
appellant’s alleged involuntary retirement claim, a matter that has been adjudicated by
the Board. As the administrative judge properly found, any such claim is barred by
collateral estoppel. ID at 8.
7 As an e-filer, the appellant’s representative at all times had access to the e-Appeal
Online repository. Sofio, 7 M.S.P.R. at 670; 5 C.F.R. § 1201.14(i).
8 The Board has discretion to reopen a final decision only in unusual or extraordinary
circumstances and generally within a short period of time after the decision becomes
final. 5 C.F.R. § 1201.118. 6
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Wilson_Cori_A_DA-3443-17-0131-I-1__Final_Order.pdf | 2024-03-26 | CORI A. WILSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-3443-17-013I-I-1, March 26, 2024 | DA-3443-17-013I-I-1 | NP |
1,939 | https://www.mspb.gov/decisions/nonprecedential/Manson_Cynthia_R_AT-0752-18-0511-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA R. MANSON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-18-0511-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cynthia R. Manson , Jonesboro, Georgia, pro se.
Lauren Hoyson , Des Plaines, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review requesting to reopen her
adverse action appeal, which was dismissed as untimely filed. For the reasons set
forth below, we DENY her request to reopen her appeal, and we DISMISS the
petition as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 an airway transportation
systems specialist. Initial Appeal File (IAF), Tab 1 at 7. On May 27, 2016, the
agency issued a notice of removal, removing the appellant from Federal service,
effective June 4, 2016. IAF, Tab 5 at 24-25. Two years later, on May 31, 2018,
the appellant appealed her removal to the Board. IAF, Tab 1. Because the appeal
appeared untimely on its face, the administrative judge issued an order on
timeliness requiring the appellant to file evidence and argument showing that her
appeal was timely filed or that good cause existed for the delay in filing. IAF,
Tab 6. The appellant did not respond, and, on June 26, 2018, the administrative
judge issued an initial decision dismissing the appeal as untimely filed. IAF,
Tab 7, Initial Decision (ID). The initial decision stated that, unless a petition for
review was filed by July 31, 2018, the decision would become final on that date.
ID at 4.
On August 15, 2018, the appellant filed a petition for review of the initial
decision, stating that she was an e-Appeal filer and had been locked out of the
e-Appeal system until August 1, 2018, and requesting that the Board reopen her
appeal. Petition for Review (PFR) File, Tab 1 at 4. The agency responded
regarding the request to reopen the appeal and the timeliness and underlying
merits of the appellant’s petition for review. PFR File, Tab 2 at 5-8.
DISCUSSION OF ARGUMENTS ON 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.
Valdez v. Office of Personnel Management , 103 M.S.P.R. 88, ¶ 4 (2006).
The Board generally does not reopen a case under its own regulations to cure the
untimeliness of a petition for review. Id. Because we see no reason to depart
from these rules, the appellant’s petition will be treated as an untimely filed
petition for review. See id. 2
A petition for review generally must be filed within 35 days after the date
of issuance of an initial decision. 5 C.F.R. § 1201.114(e). Because the initial
decision was issued on June 26, 2018, ID at 1, the appellant had until July 31,
2018, to file a timely petition for review, ID at 4. The petition for review was not
filed until August 15, 2018, IAF, Tab 1, and is, therefore, untimely filed.
The Board will waive its filing deadline only upon a showing of good cause
for the untimely filing. 5 C.F.R. § 1201.114(f). To establish good cause for an
untimely filing, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Valdez, 103 M.S.P.R.
88, ¶ 6. The Board will consider in making its due diligence determination 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. Id.
The appellant argues that she was locked out of her e-Appeal account until
August 1, 2018, and she has submitted an email, dated August 1, 2018, from the
technical support at the Board acknowledging an issue with her e-Appeal account.
PFR File, Tab 1 at 4, 6. However, the appellant did not file her petition for
review until August 15, 2018. Id. at 1. Assuming that the appellant lacked
access to the e-Appeal Online system, she still has not provided any explanation
as to why she waited an additional 15 days to file her petition, nor has she
provided any information regarding when she logged in to first discover that she
was locked out of the e-Appeal Online system or when she first contacted the
Board’s technical support.
Moreover, after the filing of her petition for review, the Office of the Clerk
of the Board issued an acknowledgment letter stating that the petition was
untimely filed and providing the appellant with an opportunity to file a motion to3
accept the filing as timely or to waive the time limit for good cause. PFR File,
Tab 3 at 2. The appellant has not responded to the acknowledgment letter and has
not filed any such motion. Accordingly, we find that the appellant has failed to
present sufficient evidence demonstrating circumstances beyond her control that
affected her ability to comply with the time limits or that she exercised the
diligence or ordinary prudence that would excuse her late filing.
Accordingly, we deny the appellant’s request to reopen her appeal, and we
dismiss the petition for review 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.4
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Manson_Cynthia_R_AT-0752-18-0511-I-1__Final_Order.pdf | 2024-03-26 | CYNTHIA R. MANSON v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-18-0511-I-1, March 26, 2024 | AT-0752-18-0511-I-1 | NP |
1,940 | https://www.mspb.gov/decisions/nonprecedential/Castro_Juan_SF-0714-18-0130-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN CASTRO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0130-I-1
DATE: March 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Eric Lazare , Esquire, San Diego, California, for the agency.
Thomas Davis , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal under 38 U.S.C. § 714. Generally, we grant 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. However, for the reasons
discussed below, we VACATE the initial decision and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant, formerly a Police Officer with the agency’s Long Beach
Healthcare System in Long Beach, California, appealed the agency’s decision to
remove him pursuant to 38 U.S.C. § 714 for the negligent performance of duties
in his use of excessive force against a patient and the patient’s relative. Initial
Appeal File (IAF), Tab 6 at 17-18, 86-92. The agency’s removal action rested on
a single charge in which the agency alleged that the appellant had kicked the
patient multiple times while he was sitting on the floor and punched the patient’s
relative, which violated agency policies regarding the use of force and the role of
an agency Police Officer. Id. at 17. After holding the appellant’s requested
hearing, the administrative judge issued an initial decision sustaining the
removal. IAF, Tab 24, Initial Decision (ID). Specifically, the administrative
judge found that, although the evidence showed that the appellant had not
delivered strikes as forceful as alleged in the agency’s charge, the record
supported a finding that the appellant had delivered three forceful thrusts to the
patient’s knee and pushed the patient’s relative, and that the appellant’s actions2
amounted to excessive force, in violation of agency policy. ID at 3-16. The
administrative judge found that the appellant had failed to use the degree of care
required under the circumstances, and he sustained the charge. ID at 16. The
administrative judge also found that 38 U.S.C. § 714 does not require that the
agency’s action promote the efficiency of the service but nevertheless concluded
that the agency’s action promoted the efficiency of the service. ID at 16-17.
Finally, the administrative judge found that, pursuant to 38 U.S.C. § 714, because
the agency’s decision was supported by substantial evidence, he was not
permitted to mitigate the penalty, and he sustained the removal. ID at 17. The
appellant has timely filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 3, 5.
ANALYSIS
On petition for review, the appellant argues that the administrative judge
incorrectly relied on inconsistent witness testimony, erroneous findings of fact,
and hearsay to find that the agency proved by substantial evidence that the
appellant kicked a patient. PFR File, Tab 3 at 6-12. The Board must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). 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 may 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). Our review of the record reflects that the administrative judge
made detailed, well-reasoned findings regarding the credibility and consistency of
witness testimony that are supported by the record. Additionally, hearsay is3
admissible in Board proceedings, and the administrative judge did not abuse his
discretion in considering hearsay in assessing the consistency of witness
testimony. ID at 12 ; see Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 15 (2014). We find no basis to disturb the administrative
judge’s findings of fact or his reasoned assessment of the facts in concluding that
the agency proved its charge by substantial evidence. ID at 3-16; see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings where she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on the issue
of credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
Nevertheless, in light of developments in the case law after the initial
decision was issued, we remand this appeal for further adjudication on two issues.
First, the record shows that the deciding official sustained the charge under a
substantial evidence standard of proof. IAF, Tab 1 at 10; Hearing Transcript
at 49 (testimony of the deciding official). This was error. Although the Board
reviews a section 714 action by substantial evidence, the agency’s deciding
official may only sustain the charge if he finds it proven by preponderant
evidence. Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1298 -1300
(Fed. Cir. 2021). We therefore remand this case for adjudication of whether the
agency’s application of the substantial evidence standard of proof was harmful
error. See Semenov v. Department of Veterans Affairs , 2023 MSPB 16,
¶¶ 21-25 & n.5.
Second, because the Board is prohibited from mitigating the agency’s
chosen penalty in a section 714 appeal, the administrative judge declined to
review the penalty. ID at 16-17. However, after the initial decision was issued,
the U.S. Court of Appeals for the Federal Circuit held that, notwithstanding its
lack of mitigation authority, the Board is nevertheless required to review the
agency’s penalty determination as part of its review of the agency’s decision as a4
whole. Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1323-27 (Fed.
Cir. 2021); Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1322-27
(Fed. Cir. 2021); Sayers v. Department of Veterans Affairs , 954 F.3d at 1375-79
(Fed. Cir. 2020). Therefore, on remand, the administrative judge should also
review the agency’s penalty determination according to the standard set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). See Semenov,
2023 MSPB 16, ¶¶ 44-50.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall allow the parties to supplement the record with
additional evidence and argument on the issues of penalty and harmful error. He
shall then issue a new initial decision that addresses these issues. As to whether
the agency presented substantial evidence to prove its charge before the Board,
the administrative judge may adopt the findings from his previous initial decision,
as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Castro_Juan_SF-0714-18-0130-I-1__Remand_Order.pdf | 2024-03-26 | JUAN CASTRO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0130-I-1, March 26, 2024 | SF-0714-18-0130-I-1 | NP |
1,941 | https://www.mspb.gov/decisions/nonprecedential/Richardson_Tammika_S_AT-0714-21-0109-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMMIKA S. RICHARDSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-21-0109-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacqueline Turk-Jerido , Tuskegee, Alabama, for the appellant.
Teri Walker , Esquire, and Sophia Haynes , Decatur, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the agency’s removal action taken pursuant to 38 U.S.C. § 714.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous 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 VACATE the administrative
judge’s order for interim relief, we AFFIRM the initial decision. We also DENY
the appellant’s petition for enforcement.
BACKGROUND
¶2The agency removed the appellant from her Nursing Assistant position,
effective November 20, 2020, pursuant to 38 U.S.C. § 714 (the VA
Accountability Act), and she filed a Board appeal. Initial Appeal File (IAF),
Tab 4 at 13, 15-18. After a hearing, the administrative judge issued an Order
Certifying Interlocutory Appeal regarding his finding that the agency cannot rely
on the provisions of 38 U.S.C. § 714 to remove the appellant, a hybrid employee
as defined in 38 U.S.C. § 7401(3). IAF, Tabs 17, 20, 23. In a January 4, 2023
Opinion and Order, the Board agreed and held that the agency cannot rely on the
provisions of 38 U.S.C. § 714 to remove the appellant. Richardson v. Department
of Veterans Affairs , 2023 MSPB 1, ¶¶ 10-28. The Board informed the agency
that, if it wanted to proceed with an adverse action against the appellant, it must
do so in accordance with the procedures described in 5 U.S.C. chapter 75, as
required by 38 U.S.C. § 7403(f)(3). Richardson, 2023 MSPB 1, ¶¶ 29-32. The
Board remanded the appeal for further adjudication. Id., ¶ 33. 2
¶3On remand, the administrative judge issued an initial decision, which found
that the agency’s action was not in accordance with law and reversed the removal.
IAF, Tab 36, Initial Decision (ID) at 2. The administrative judge ordered the
agency to cancel the removal and retroactively restore the appellant.2 Id. The
administrative judge also ordered interim relief if either party filed a petition for
review. ID at 3-4.
¶4The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant did not file a response. The appellant has filed a petition
for enforcement. PFR File, Tab 3. The agency did not respond to this petition.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s petition for review does not persuade us that the Board erred in its
prior Opinion and Order.
¶5The agency’s petition for review challenges almost the entirety of the
Board’s substantive analysis in its prior Opinion and Order. PFR File, Tab 1
at 7-26. We have considered the agency’s substantive arguments regarding plain
language, statutory interpretation, legislative history, and agency deference, but
they do not persuade us that the Board committed any error that warrants a
different outcome.3
The agency’s plain language and statutory interpretation arguments
on petition for review do not warrant a different outcome.
¶6Most of the agency’s arguments on review relating to plain language and
statutory interpretation constitute disagreement with the Board’s findings and
conclusions in its prior Opinion and Order. E.g., PFR File, Tab 1 at 6-13, 16-25;
see Richardson, 2023 MSPB 1, ¶¶ 17-25. We have considered these arguments,
2 The date identified by the administrative judge for retroactive restoration,
November 11, 2020, appears to be in error; the date should have been November 20,
2020. IAF, Tab 4 at 13, 15. This typographical error does not prejudice the appellant
and does not warrant a different outcome. Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984).
3 We address the agency’s arguments regarding interim relief below. 3
but we conclude that a different outcome is not warranted. However, we wish to
briefly discuss three of the agency’s arguments.
¶7First, the agency asserts that the “[n]otwithstanding” language in 38 U.S.C.
§ 7403(f)(3) will control when there is a conflict between that provision and
38 U.S.C. § 714; in the absence of any such conflict, the “[n]otwithstanding”
provision is not triggered and cannot justify disregarding the plain language of
38 U.S.C. § 714. PFR File, Tab 1 at 11-13. We have considered the agency’s
citations to various decisions to support its contention in this regard, but none of
the cited decisions involved 38 U.S.C. § 7403(f)(3). Accordingly, this argument
does not warrant a different outcome.
¶8Second, the agency suggests that 38 U.S.C. § 714 and 38 U.S.C. § 7403(f)
(3) can coexist “by simply reassessing § 7403(f)(3) in light of the newer statute.”
PFR File, Tab 1 at 17. In this regard, the agency asserts that, because 38 U.S.C.
§ 714 preserves Board appeal rights and judicial review, it satisfies the
requirement in 38 U.S.C. § 7403(f)(3) to resolve actions “under the provisions of
title 5.” Id. at 17-20. We are not persuaded by this argument. There are
significant differences between the procedures in 38 U.S.C. § 714 and the adverse
action procedures of Title 5 that prevent us from concluding that 38 U.S.C. § 714
satisfies the requirements of 38 U.S.C. § 7403(f)(3). Importantly, the Board
identified in its Opinion and Order due process concerns raised by the record in
this matter. See Richardson, 2023 MSPB 1, ¶ 32.
¶9Third, we have considered the agency’s argument that, even if 38 U.S.C.
§ 714 and 38 U.S.C. § 7403(f)(3) conflicted, 38 U.S.C. § 714 “sufficiently
repeals” by implication the conflicting provisions of 38 U.S.C. § 7403(f)(3). PFR
File, Tab 1 at 24-25. In arguing that 38 U.S.C. § 714 “fully substitutes for”
5 U.S.C. chapter 75 when elected4 and is more precise than 38 U.S.C. § 7403(f)
(3), the agency relies on Schmitt v. Department of Veterans Affairs , 2022 MSPB
4 We need not take a position on whether, as the agency asserts, 38 U.S.C. § 714 “fully
substitutes” for actions taken pursuant to 5 U.S.C. chapter 43 because that issue is not
before us in this matter. 4
40, ¶¶ 14, 16, in which the Board held that the VA Accountability Act contained
more specific language regarding interim relief and overcame the general interim
relief language in 5 U.S.C. § 7701(b)(2). PFR File, Tab 1 at 24-25. 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.
The agency’s arguments on review regarding the legislative history
of 38 U.S.C. § 714 do not warrant a different outcome.
¶10The Board, in its prior Opinion and Order, noted that the agency did not
identify any legislative history from the VA Accountability Act on the inclusion
of hybrid employees. Richardson, 2023 MSPB 1, ¶ 27. For the first time in its
petition for review, the agency cites to legislative history from the VA
Accountability Act, which it argues “explicitly stat[es] Congress’s intent to cover
title 38 hybrids.” PFR File, Tab 1 at 14-16. The agency also contends that the
Board, in its prior Opinion and Order, incorrectly dismissed the statements from
the Honorable David P. Roe regarding an unenacted House bill because the
statements were made in a committee report, which is an authoritative source.
PFR File, Tab 1 at 14 (citing Garcia v. United States , 469 U.S. 70, 76 (1984)).
Moreover, the agency asserts that the relevant language and Congressional intent
“remained consistent between the bills” and that legislative history related to
prior bills is valid evidence of Congressional intent if the language and
Congressional intent is consistent. Id.
¶11The general rule is that Congressional committee reports may be highly
persuasive. Hanson v. Office of Personnel Management , 33 M.S.P.R. 581,
589-90, aff’d, 833 F.2d 1568 (Fed. Cir. 1987). Moreover, the unenacted House
bill stated that the “term ‘individual’ means an individual occupying a position at
the Department but does not include . . . an individual appointed pursuant to
section 7306, 7401(1), or 7405 of this title.” H.R. Rep. 115-34(I), at *28
(Mar. 10, 2017). Because the definition of the term “individual” in the unenacted5
House bill is similar to the definition of “covered individual” in 38 U.S.C.
§ 714(h), the statements of Representative Roe, as discussed in Richardson,
2023 MSPB 1, ¶ 26, may be relevant. However, 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. 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). Moreover,
taken as a whole, the portions of the legislative history of the VA Accountability
Act cited by the agency do not evince a clear and manifest congressional intent to
repeal 38 U.S.C. § 7403(f)(3). Richardson, 2023 MSPB 1, ¶¶ 26-27. Therefore, a
different outcome is not warranted.
The agency’s remaining arguments on review do not warrant a different
outcome.
¶12We have considered the agency’s argument that its own interpretation of
38 U.S.C. § 714 is entitled to deference to the extent that it has the power to
persuade. PFR File, Tab 1 at 25-26. This argument is not persuasive. Indeed,
numerous decisions from 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 [38 U.S.C. §] 714 should
not be interpreted [as the 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 misconduct6
occurred—could ‘gut due process protections’ in a way Congress did not
intend.”). Accordingly, we conclude that the agency’s interpretation of 38 U.S.C.
§ 714 is not persuasive and is not entitled to deference. We have considered the
agency’s remaining arguments on review, but none persuade us that the Board
erred in its analysis or conclusion in the prior Opinion and Order.
We vacate the interim relief order, and we deny the appellant’s petition for
enforcement.
¶13In its certification of compliance with the interim relief order, an agency
Lead Human Resources Specialist states in a declaration made under penalty of
perjury that the appellant was reappointed to the position of GS-05 Nursing
Assistant, effective March 8, 2023, and the agency provided all documentation to
the Defense Finance and Accounting Service (DFAS) to process her pay and
benefits. PFR File, Tab 1 at 29-30. The appellant’s petition for enforcement
acknowledges that she was returned to her Nursing Assistant position, but she
argues that no other relief, including “mak[e] . . . whole” relief, was provided to
her. PFR File, Tab 3 at 5.
¶14In this matter, the administrative judge erred when he ordered interim relief
because such relief is precluded in actions taken under 38 U.S.C. § 714 until the
Federal Circuit issues a final decision. Schmitt, 2022 MSPB 40, ¶¶ 9-16
(discussing 38 U.S.C. § 714(d)(7)). We therefore vacate the initial decision in
this regard. However, an adjudicatory error that is not prejudicial to the
appellant’s substantive rights provides no basis for reversal of the initial decision .
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). Here, the
appellant is receiving a final Board order on the merits in her favor, and any issue
involving the agency’s compliance with an interim relief order is moot. Elder v.
Department of the Air Force , 124 M.S.P.R. 12, ¶ 20 (2016); Cowart v. U.S.
Postal Service, 117 M.S.P.R. 572, ¶ 6 n.* (2012). Accordingly, we deny the
appellant’s petition for enforcement.7
ORDER
¶15We ORDER the agency to cancel the removal action and retroactively
restore the appellant to her GS-05 Nursing Assistant position, effective
November 20, 2020. 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.
¶16We 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.
¶17We 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).
¶18No 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).
¶19For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or DFAS, two lists of the
information and documentation necessary to process payments and adjustments8
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 RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13
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. | Richardson_Tammika_S_AT-0714-21-0109-I-1__Final_Order.pdf | 2024-03-26 | TAMMIKA S. RICHARDSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-21-0109-I-1, March 26, 2024 | AT-0714-21-0109-I-1 | NP |
1,942 | https://www.mspb.gov/decisions/nonprecedential/Uberu_JeromeDA-0752-17-0335-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEROME UBERU,
Appellant,
v.
FEDERAL RESERVE SYSTEM,
Agency.DOCKET NUMBER
DA-0752-17-0335-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc J. Smith , Esquire, Rockville, Maryland, for the appellant.
Erin Noble and Nicole Heiser , 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 alleged reduction-in-pay appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Uberu_JeromeDA-0752-17-0335-I-1__Final_Order.pdf | 2024-03-26 | JEROME UBERU v. FEDERAL RESERVE SYSTEM, MSPB Docket No. DA-0752-17-0335-I-1, March 26, 2024 | DA-0752-17-0335-I-1 | NP |
1,943 | https://www.mspb.gov/decisions/nonprecedential/Shaff_Bradley_S_DA-0845-19-0379-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADLEY S. SHAFF,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-19-0379-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley S. Shaff , Jenks, Oklahoma, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) determining that he received an overpayment of $14,500.00 in Federal
Employees’ Retirement System (FERS) disability benefits and determined that he
failed to establish that he was entitled to a waiver of the overpayment or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
adjustment of the collection schedule established by OPM. On petition for
review, the appellant argues that the administrative judge applied the wrong
standard to determine that he received a payment he knew or should have known
was erroneous and erred in rejecting his argument that he detrimentally relied on
the overpayment. Generally, we grant 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 argues in his petition for review that he met his burden to
demonstrate that he is entitled to a waiver of the overpayment and that the
administrative judge applied the wrong standard to determine that his reasons for
believing that his disability retirement annuity would continue were not sound.
Petition for Review File, Tab 1 at 4-5. Specifically, he argues that he had a good
faith basis to believe that OPM had decided to continue his disability retirement
benefits indefinitely because of his experience with Department of Veterans
Affairs (DVA) and Social Security Administration (SSA) disability payments. Id.
He contends that a reasonable person could have reached the conclusion he did,
even if other reasonable people might disagree. Id. We are not persuaded. 2
First, we note that OPM notified the appellant at the time it granted his
disability retirement annuity that such payments would stop 6 months from the
end of the calendar year in which his earning capacity is restored. Initial Appeal
File (IAF), Tab 8 at 19. As the administrative judge observed, the appellant
agreed that his 2017 income exceeded the 80% limit, and he was aware that the
earnings limit impacted his entitlement to a continued disability annuity. IAF,
Tab 14, Initial Decision (ID) at 6. The appellant testified that, soon after he was
reemployed at the Department of Energy in January 2017, OPM explained to him
over the telephone that he would continue to receive payments until it determined
that he was returned to earning capacity. Hearing Compact Disc (HCD)
(testimony of the appellant). He also testified that he received a survey from
OPM in late 2017 concerning his income, to which he replied truthfully, and that,
prior to June 2018, he received notice from OPM2 that his disability annuity
payments would end at the end of June 2018. Id.
Second, contrary to the appellant’s contention that his experience with
DVA and SSA disability benefits justified his belief that his OPM disability
retirement annuity would continue unabated, he explained his understanding that
DVA disability benefits had a different purpose than OPM disability annuity
payments and SSA disability benefits. Id. He testified that DVA disability
payments are intended to compensate him for injuries sustained in the past,
during his uniformed service, and that SSA and OPM disability payments were,
by contrast, intended to meet his need for current income. Id. Because the
appellant conceded that his earning capacity was restored in 2017, it is not
reasonable for him to have believed that his OPM disability retirement annuity,
which he explicitly understood was for exactly that purpose, i.e., to provide him
current income, id., would continue past June 2018.
2 The appellant does not indicate in his testimony whether this notice was oral or
written, HCD (testimony of the appellant), and there is no document meeting this
description in the record. 3
Under these circumstances, we agree with the administrative judge that it
was not reasonable for the appellant to believe that his OPM disability annuity
payments would continue past June 2018. Because we agree with the
administrative judge that it was not reasonable under these circumstances for the
appellant to think that his OPM disability retirement payments would continue
indefinitely, a reasonable person would not accept the appellant’s assertion as
adequate to support such a conclusion. ID at 6-7. Therefore, the administrative
judge applied the correct standard, and the appellant failed to show by substantial
evidence that he was without fault in the creation of the overpayment. 5 U.S.C.
§ 8470(b); Vojas v. Office of Personnel Management , 115 M.S.P.R. 502, ¶ 18
(2011); 5 C.F.R. § 1201.4(p).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Shaff_Bradley_S_DA-0845-19-0379-I-1 Final Order.pdf | 2024-03-26 | BRADLEY S. SHAFF v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-19-0379-I-1, March 26, 2024 | DA-0845-19-0379-I-1 | NP |
1,944 | https://www.mspb.gov/decisions/nonprecedential/Mattox_Michelle_R_DA-0845-18-0070-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE R. MATTOX,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-18-0070-I-1
DATE: March 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
M
ichelle R. Mattox , Stilwell, Oklahoma, pro se.
Michael Shipley , 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
affirmed the November 7, 2017 reconsideration decision by the Office of
Personnel Management (OPM), which found that she received an overpayment of
$9,456.42 in Federal Employees’ Retirement System (FERS) annuity benefits.
For the reasons discussed below, we GRANT the appellant’s petition, VACATE
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision, and REMAND the case to OPM to recalculate the amount of
the overpayment, if any, and issue a new reconsideration decision consistent with
this Remand Order.
BACKGROUND
On November 4, 2013, the appellant, who was then an employee of the
Department of Veterans Affairs (DVA), submitted an application for disability
retirement under FERS. Initial Appeal File (IAF), Tab 14 at 37-45. By letter
dated September 15, 2014, OPM informed the appellant that her application had
been approved. Id. at 58. The appellant was separated from the DVA on
September 19, 2014, and shortly thereafter OPM began providing interim pay
based on a starting date of November 1, 2013. Id. at 4. On December 2, 2014,
OPM authorized a regular annuity retroactive to August 27, 2014, based on a last
day of pay (LDOP) of August 26, 2014.2 Id.; see 5 C.F.R. § 844.301 (providing
that a FERS disability annuity commences on the day after the employee
separates or the day after pay ceases and the employee meets the requirements for
a disability annuity).
Subsequently, OPM determined that the appellant had received an
overpayment of $11,696.71 due to the discrepancy between the interim payments
she had received for the period from November 1, 2013, to November 30, 2014,
and the annuity she actually was due for the period from August 27 to
November 30, 2014. IAF, Tab 14 at 21-22. On December 7, 2014, OPM
informed the appellant of the alleged overpayment. Mattox v. Office of Personnel
Management, MSPB Docket No. DA-0845-15-0449-I-1, Final Order (Mar. 9,
2016). OPM affirmed its calculation in a June 10, 2015 reconsideration decision,
and the appellant filed a timely appeal with the Board. Id. While that appeal was
2 The regular annuity was reduced due to the appellant’s receipt of Social Security
disability benefits beginning February 1, 2014. IAF, Tab 14 at 4, 25; see 5 U.S.C.
§ 8452(a). 2
pending, OPM rescinded its June 10, 2015 decision, and the Board dismissed the
appeal for lack of jurisdiction. Id.
On February 16, 2017, OPM notified the appellant that it had received
information from DVA that her LDOP had been changed to May 19, 2014. IAF,
Tab 14 at 14. OPM indicated that it had adjusted the starting date and amount of
her annuity to match the revised LDOP and calculated that an overpayment of
$9,456.42 had accrued from May 20, 2014, to January 30, 2017.3 Id. at 14-15.
OPM proposed to collect that amount in 36 installments of $262.67, beginning
May 1, 2017, and a final installment of $0.30. Id. at 15. The appellant submitted
a request for reconsideration in which she asserted that OPM had based its
calculation on an incorrect LDOP. Id. at 11, 13. She also requested a “waiver”
of recovery, though it appears her intent was to dispute the existence and amount
of the overpayment. Id.
On November 6, 2017, OPM issued a second reconsideration decision,
reaffirming its calculation that the appellant had been overpaid $9,456.42. Id.
at 6. Regarding the LDOP, OPM stated that it had contacted an individual (S.M.)
in the DVA payroll office, who informed OPM of the following: that the
appellant was last at work on December 20, 2013; that she entered leave without
pay (LWOP) status; that while she was in LWOP she received donated leave, and
thus an additional paycheck; and that based on the receipt of donated leave her
LDOP was May 19, 2014. Id. at 8, 10. OPM further found that, while the
appellant was not at fault for the overpayment, she was not entitled to a waiver of
recovery. Id. at 7-8. OPM indicated it would collect the overpayment in
36 installments of $262.67, beginning February 1, 2018, and a final installment of
$0.30. Id. at 15.
3 The alleged overpayment appears to have actually accrued during the period between
November 1, 2013, and May 19, 2014. OPM’s computation sheet indicates that,
notwithstanding a reduction in the appellant’s monthly annuity, she was underpaid
$1,940.29 in gross annuity benefits between May 20, 2014, and January 30, 2017,
apparently due to the change in LDOP. IAF, Tab 14. 3
This appeal followed. IAF, Tab 1. The appellant argued, among other
things, that OPM had relied on an incorrect LDOP and that her bank records
showed that a January 17, 2014 deposit from Defense Finance and Accounting
Services (DFAS) was the last payment she received from her employment at
DVA. IAF, Tab 1 at 5, Tab 19 at 5, 35; Hearing Compact Disc (HCD) (testimony
of the appellant). She explained that subsequent payments from DFAS were for
her husband, who was also a Federal employee. IAF, Tab 19 at 5, 26-27, 34-35,
Tab 26 at 4-9; HCD (testimony of the appellant). In support of its position, OPM
provided a handwritten Report of Contact, dated October 25, 2017, describing a
telephone conversation in which S.M. informed the inquiring OPM employee that
the appellant received donated leave resulting in an LDOP of May 19, 2014. IAF,
Tab 14 at 10. OPM also provided an undated form recording an inquiry to DFAS,
which also indicated that May 19, 2014, was the appellant’s LDOP. Id. at 23.
Based on her review of the record, the administrative judge concluded that
May 19, 2014, was the correct LDOP and that OPM had established the existence
and amount of the overpayment. IAF, Tab 28, Initial Decision (ID) at 4-7. She
further found that the appellant had not shown that she was entitled to a waiver of
recovery or an adjustment to the collection schedule. ID at 7-10. Finally, she
found that the appellant failed to establish her claims that OPM committed
harmful procedural error, denied her due process, and retaliated against her for
her previous Board appeal. ID at 10-14. Accordingly, the administrative judge
affirmed OPM’s reconsideration decision. ID at 1, 14.
In her petition for review, the appellant states that on March 23, 2018, she
contacted S.M., the same individual referred to in OPM’s report of contact.
Petition for Review (PFR) File, Tab 1 at 3. According to the appellant’s
statement, S.M. indicated that she entered LWOP status on December 12, 2013,
and remained in LWOP throughout the following year until her separation on
December 19, 2014. Id. The appellant also provides a partially cropped printout4
labeled “Separated Employee Information,” indicating the appellant’s daily leave
status for a period ranging from December 2013 to September 2014.4 Id. at 4-9.
In its response, the agency asserts in general terms that the appellant’s
petition does not meet the criteria for review under 5 C.F.R. § 1201.115. PFR
File, Tab 4. In reply, the appellant argues that her newly submitted evidence
shows she was not receiving pay in May 2014. PFR File, Tab 5.
ANALYSIS
In an overpayment case, OPM bears the burden of proving the existence
and amount of the alleged overpayment by preponderant evidence.5 Vojas v.
Office of Personnel Management , 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R.
§ 845.307(a). Here, as discussed above, the existence and amount of the alleged
overpayment turns on the starting date of the appellant’s entitlement to an
annuity, which in turn depends on her LDOP. See 5 C.F.R. § 844.301. Thus,
contrary to the initial decision, ID at 4-6, the burden of establishing the correct
LDOP lies with OPM, not the appellant.
In support of its position that the appellant’s LDOP was May 19, 2014, the
agency relies on unsworn hearsay of unknown degree. IAF, Tab 14 at 10, 23.
Even if we were to limit our consideration to the record below, it is doubtful
whether the agency’s evidence regarding the LDOP is sufficiently probative to
4 More than a year after the close of the record on petition for review the appellant filed
a motion seeking to submit an additional pleading, which she asserts is “based on recent
events by OPM,” and will show why she lost her insurance due to the current appeal.
PFR File, Tab 10. We deny this motion because the appellant has not described the
nature of and need for the pleading. 5 C.F.R. § 1201.114(a)(5). To the extent that the
pleading is relevant to the issues on remand, the appellant may submit it in that
proceeding consistent with the Board’s regulations and the administrative judge’s
instructions.
5 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
outweigh the appellant’s live testimony, which is also consistent with her bank
records.6
In any event, the appellant has now provided documentary evidence
speaking directly to her pay status during the relevant time period.7 PFR File,
Tab 1 at 4-9. While the exact dates of the month appear to have been
inadvertently cropped, the document indicates that the appellant entered LWOP
status in mid-December 2013, following several days of annual leave,8 and
remained in LWOP status through her separation in September 2014. Id. Based
on this information, it appears the appellant’s LDOP did not occur in May 2014,
but rather at some point in December 2013. We discern no reason to doubt the
authenticity of the document, which is consistent with her statements, sworn
under penalty of perjury, concerning her March 23, 2018 contact with S.M. Id.
at 3. Under these circumstances, we find that OPM has not established the
existence and amount of the overpayment by preponderant evidence, and we
therefore do not sustain its reconsideration decision.
Based on the record before us, we are unable to determine with certainty
whether the appellant actually received an overpayment and, if so, the amount of
6 The administrative judge noted that a June 6, 2014 deposit from DFAS in the amount
of $232.32 was consistent with OPM’s contention that the appellant received donated
leave the previous month. ID at 5; IAF, Tab 26 at 7. However, the bank records are
also consistent with the appellant’s explanation that the payment was reimbursement for
her husband’s travel expenses. HCD (testimony of the appellant). While the appellant
did not provide additional evidence to support her testimony on that point, the burden of
proof lies with OPM, as discussed above. Moreover, even if the deposit did represent
payment to the appellant for donated leave, it is possible that at some point thereafter
DVA retroactively shifted the donated leave to an earlier date, thereby altering in turn
the appellant’s LDOP, the starting date of her entitlement to disability retirement
benefits, and the amount of the overpayment (if any). See King v. Office of Personnel
Management, 31 M.S.P.R. 679, 681 (1986).
7 Regardless of whether the evidence was unavailable, despite the appellant’s due
diligence, before the close of the record below, the Board reserves the authority to
consider any issue before it. 5 C.F.R. § 1201.115(e).
8 The annual leave recorded on three dates consists of consecutive partial days of
varying length, which is consistent with the appellant’s assertion that her last donated
leave occurred in December 2013. PFR File, Tab 1 at 4; IAF, Tab 1 at 5. 6
that overpayment. Accordingly, we remand the matter to OPM for a
determination of the appellant’s correct LDOP, recalculation of the overpayment,
if any, and issuance of a new reconsideration decision.
ORDER
On remand, OPM shall recalculate the FERS annuity benefit to which the
appellant is entitled and issue a new reconsideration decision, consistent with this
Remand Order, regarding the existence and amount of any overpayment. The
new reconsideration decision must provide a detailed, consistent, and readily
understandable explanation of OPM’s calculations. See Nichol v. Office of
Personnel Management , 105 M.S.P.R. 201, ¶ 20 (2007). OPM shall issue the new
reconsideration decision within 60 days of the date of this Order and advise the
appellant of her right to file an appeal with the Board if she disagrees with that
new decision. Id., ¶ 21.
We further ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM 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
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the7
Board’s Order, and should include the dates and results of any communications
with OPM. 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Mattox_Michelle_R_DA-0845-18-0070-I-1_Remand_Order.pdf | 2024-03-26 | MICHELLE R. MATTOX v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-18-0070-I-1, March 26, 2024 | DA-0845-18-0070-I-1 | NP |
1,945 | https://www.mspb.gov/decisions/nonprecedential/Cruz_Valentina_B_SF-0831-18-0400-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALENTINA B. CRUZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-18-0400-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles , Zambales, Philippines, for the appellant.
Angerlia D. Johnson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
dismissed her appeal for lack of Board jurisdiction. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation 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. However, we MODIFY the
initial decision to DISMISS this appeal as barred by the doctrine of res judicata.
On review, the appellant contests the initial decision in which the
administrative judge dismissed her appeal of the agency’s reconsideration
decision denying her request for a survivor annuity under the Civil Service
Retirement System (CSRS). Initial Appeal File (IAF), Tab 12, Initial Decision
(ID); Petition for Review (PFR) File, Tab 1.2 In the initial decision, the
administrative judge found that res judicata barred the appeal on jurisdictional
grounds because the issue of the appellant’s eligibility for a CSRS survivor
annuity was resolved in a prior Board appeal. ID at 1-3, 6-8. In the prior appeal,
the Board held that the agency properly determined that the appellant’s late
husband’s Federal service did not make him eligible for benefits under the CSRS.
Cruz v. Office of Personnel Management , 8 M.S.P.R. 93 (1981).
We agree with the administrative judge that Board review of the appellant’s
claim contesting the agency’s decision finding her ineligible for a survivor
2 The initial decision was sent via the mail on July 12, 2018, to the appellant and her
representative in the Philippines. IAF, Tab 13. The appellant claimed that she received
the initial decision on August 17, 2018. PFR File, Tab 3 at 1. The appellant’s petition
for review was postmarked from the Philippines on August 23, 2018, and received by
the Board on September 18, 2018. PFR File, Tab 1, Tab 2 at 1. The Board has
recognized frequent mail service delays between the continental United States and the
Philippines. See Rosales v. Office of Personnel Management , 41 M.S.P.R. 590, 592
(1989). In light of the finding on res judicata, we need not address any timeliness issue
regarding the appellant’s filing of her petition for review. 2
annuity under the CSRS is precluded by res judicata. Under the doctrine of res
judicata, a valid, final judgment on the merits of an action bars a second action
involving the same parties or their privies based on the same cause of action .
Federated Department Stores, Inc. v. Moitie , 452 U.S. 394, 398 (1981);
Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995). This prevents
parties from relitigating claims that were or could have been raised in the
previous action. Federated Department Stores, Inc. , 452 U.S. at 398; Peartree,
66 M.S.P.R. at 337. Res judicata applies when (1) the prior judgment was
rendered by a forum with competent jurisdiction; (2) the prior judgment was final
and on the merits; and (3) the same cause of action and the same parties or their
privies were involved in both cases. Brown v. Department of the Navy ,
102 M.S.P.R. 377, ¶ 10 (2006); Peartree, 66 M.S.P.R. at 337.
The appellant’s claim here centers on whether her late husband was eligible
for CSRS benefits based on his Federal service in the Republic of the Philippines,
as she is not eligible for a CSRS survivor annuity if her husband was never
eligible for CSRS benefits. See Lapenas v. Office of Personnel Management ,
44 M.S.P.R. 303, 307 (1990) (outlining that a survivor annuity is only payable if
the spouse is eligible for CSRS benefits based on his Federal service). The
appellant’s deceased husband’s ineligibility for CSRS retirement benefits, and by
direct implication the appellant’s ineligibility for a survivor annuity, was already
determined by the Board, a forum with competent jurisdiction, through a final
decision on the merits in Cruz v. Office of Personnel Management , 8 M.S.P.R. 93
(1981). Because the appellant’s late husband was the party in the previous
appeal, the appellant was a privity to that action.3 In addition, any arguments on
3 “Privity” refers to the relationship between two or more persons such that a judgment
involving one of them may justly be conclusive upon the others, although those others
were not a party to the lawsuit. Fabros v. Office of Personnel Management ,
85 M.S.P.R. 400, ¶ 2 n.2 (2000). The Board has found that a petitioning party seeking a
survivor annuity was in privity with her spouse, such that a negative determination in
the spouse’s previous appeal concerning his annuity constituted a conclusive
determination as to an entitlement to a survivor annuity based on the spouse’s service.
Navarro v. Office of Personnel Management , 105 M.S.P.R. 278, ¶ 5 (2007), aff’d,3
the claim advanced by the appellant in this appeal were raised or could have been
raised in the previous Board appeal pursued by her late husband. Therefore, res
judicata applies and serves as the correct basis to dismiss this appeal. See
Martinez v. U.S. Postal Service , 88 M.S.P.R. 356, ¶ 6 (2001) (dismissing an
appeal as barred by the doctrine of res judicata).
However, the administrative judge did err by dismissing this appeal for
lack of jurisdiction because res judicata is not a basis to dismiss an appeal for
lack of jurisdiction. Roesel v. Peace Corps , 111 M.S.P.R. 366, ¶ 15 (2009);
Martinez, 88 M.S.P.R. 356, ¶ 6; ID at 1. Rather, res judicata is a basis to dismiss
an appeal over which the Board has jurisdiction. Hicks v. U.S. Postal Service ,
83 M.S.P.R. 599, ¶ 12 (1999). As such, we modify the initial decision to dismiss
this appeal as barred by the doctrine of res judicata.
On review, the appellant argues that the administrative judge should not
have applied res judicata to her appeal because the agency’s reconsideration
decision did not mention the issue. PFR File, Tab 1 at 1. The agency did
however state in its pleading to the Board that the question of whether the
appellant’s spouse was eligible for benefits under the CSRS, the central issue in
this case, was determined in the 1981 Board appeal. IAF, Tab 7 at 7.
Notwithstanding, the Board may raise the issue of res judicata sua sponte.
Sabersky v. Department of Justice , 91 M.S.P.R. 210, ¶ 9 (2002), aff'd,
61 F. App’x 676 (Fed. Cir. 2003). Further, before issuing the initial decision in
this case, the administrative judge apprised the appellant of the res judicata issue
and provided her with an opportunity to present argument and evidence on the
matter, and the appellant did so. IAF, Tab 9 at 3, Tab 11. Therefore, this
argument does not serve as a basis to disturb the overall conclusion in this appeal.
Lastly, the appellant’s additional contentions on review are mere
restatements of the arguments that she set forth before the administrative judge.
252 F. App’x. 316 (Fed. Cir. 2007) (Table). In this case, the appellant and Mr. Cruz
were married during the adjudication of his Board appeal. IAF, Tab 7 at 33. 4
PFR File, Tab 1 at 1. None of these relate to the dispositive issue of res judicata
nor do they provide sufficient reasoning to overturn the initial decision. See
Hsieh v. Defense Nuclear Agency , 51 M.S.P.R. 521, 524-25 (1991) (holding that
mere reargument of the same issues heard and decided by the administrative
judge, with nothing more, does not constitute a basis to grant a petition for
review), aff’d, 979 F.2d 217 (Fed. Cir. 1992) (Table).
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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,6
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Cruz_Valentina_B_SF-0831-18-0400-I-1 Final Order.pdf | 2024-03-26 | VALENTINA B. CRUZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-18-0400-I-1, March 26, 2024 | SF-0831-18-0400-I-1 | NP |
1,946 | https://www.mspb.gov/decisions/nonprecedential/Lee_Danny_SF_3443-22-0586-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-3443-22-0586-I-1
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny Lee , Poway, California, pro se.
Jamie L. Barnhill , 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
dismissed his appeal challenging his nonselection for lack of jurisdiction and
dismissed his challenge to his 2018 resignation as involuntary on the grounds of
adjudicatory efficiency. On petition for review, the appellant argues that the
administrative judge failed to address a number of his claims in 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; reargues that his 2018 resignation decision was involuntary and that
agency officials engaged in wrongdoing in connection with his resignation; and
that he has filed numerous complaints with the Office of Special Counsel (OSC)
and the agency’s Office of the Inspector General but his complaints have been
ignored. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s involuntary resignation claim is barred by the doctrine of
collateral estoppel instead of on the grounds of adjudicatory efficiency , we
AFFIRM the initial decision.
In the initial decision, the administrative judge concluded that the appellant
had not alleged that the Board had jurisdiction over his appeal challenging his
nonselection for a position as a claim under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) or the Veterans Employment Opportunities Act of
1998 (VEOA), but he did not provide a specific explanation for how the appellant
could establish jurisdiction over his USERRA and VEOA claims in the orders on
jurisdiction or in the initial decision. Lee v. Social Security Administration ,2
MSPB Docket No. SF-3443-22-0586-I-1 , Initial Appeal File (IAF), Tab 2 at 2-5,
Tab 7 at 2-3, Tab 21, Initial Decision (ID) at 5-7.
To establish Board jurisdiction over a USERRA appeal under 38 U.S.C.
§ 4311(a), an appellant must allege that: (1) he performed duty or has an
obligation to perform duty in a unformed service of the United States; (2) the
agency denied his initial employment, reemployment, retention, promotion, or
any benefit of employment; and (3) the denial was due to the performance of duty
or obligation to perform duty in the unformed service. Williams v. Department of
the Treasury, 110 M.S.P.R. 191, ¶ 8 (2008). To establish Board jurisdiction over
an appeal brought under VEOA, an appellant must, among other things, show that
he exhausted his administrative remedy with the Department of Labor (DOL) by
filing a complaint with DOL containing a summary of the allegations that form
the basis of the complaint. Graves v. Department of Veterans Affairs ,
117 M.S.P.R. 491, ¶ 8 (2012). As the administrative judge observed, on his
initial appeal form the appellant checked the box indicating that he is not entitled
to veterans’ preference, did not check the box indicating that he filed a complaint
with DOL, and he has not otherwise alleged that he is a preference-eligible or
presented any argument that implicates Board jurisdiction over his nonselection
under USERRA or VEOA. ID at 2-3; IAF, Tab 1 at 1. Accordingly, we agree
that the appellant has not established a regulatory or statutory right to appeal his
nonselection to the Board on these bases.
Addressing a potential suitability claim, the administrative judge
acknowledged that the appellant checked the box on the appeal form alleging a
negative suitability determination but nevertheless concluded that the appellant
“did not seek to invoke the Board’s jurisdiction” over this claim because his
pleadings did not include any further mention of it. ID at 6-7. However, there is
no indication in the record that the appellant did not intend to pursue this claim,
so we will address it now. Regulations promulgated by the Office of Personnel
Management (OPM) in 2008 state that a “suitability action,” as defined in those3
regulations, may be appealed to the Board.2 5 C.F.R. § 731.501(a). Suitability
determinations examine whether “a person’s character or conduct . . . may have
an impact on the integrity or efficiency of the service.” 5 C.F.R. § 731.101. If an
individual is deemed unsuitable for service based on one or more of the factors
enumerated in 5 C.F.R. § 731.202(b), the acting agency may take a suitability
action, which is defined as a removal, debarment, cancellation of eligibility, or
cancellation of reinstatement eligibility. 5 C.F.R. § 731.203. Nevertheless, as
the administrative judge observed, under 5 C.F.R. § 731.203(b), “[a]
non-selection, or cancellation of eligibility for a specific position . . . is not a
suitability action even if it is based on reasons set forth in § 731.202.” ID at 7
n.2 (citing Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶ 12 (2012).
There is no evidence in the record indicating that OPM or any agency official
took a suitability action against the appellant in connection with his nonselection
for the identified position. Accordingly, we conclude that the appellant failed to
establish Board jurisdiction over his appeal as a suitability action.
Finally, in the initial decision the administrative judge considered the
appellant’s allegations that his 2018 resignation was involuntary, but dismissed
that claim for lack of jurisdiction on the grounds of adjudicatory efficiency,
reasoning that the appellant had filed a prior Board appeal challenging his
resignation as involuntary, that appeal resulted in an initial decision finding that
the Board lacked jurisdiction over his claim, and a petition for review of the
initial decision in that prior case was then pending before the Board. ID at 10-11;
see Lee v. Social Security Administration , MSPB Docket No. SF-0752-18-0753-
2 The National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92,
§ 1086(f)(9), 129 Stat. 726, 1010 (2015), amended 5 U.S.C. § 7512 to state that
chapter 75 of Title 5 of the U.S. Code “does not apply to . . . a suitability action taken
by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the
President under [Title 5] for the administration of the competitive service.” 5 U.S.C.
§ 7512(F). See Odoh v. Office of Personnel Management , 2022 MSPB 5, ¶ 16. Neither
party addressed this issue below. Given our finding that the appellant’s nonselection
was not a suitability action, we do not consider the effect, if any, of section 7512(F) on
this appeal.4
I-1, Initial Decision (Aug. 9, 2019) (0753 ID); Initial Appeal File (0753 IAF),
Tab 27; Lee v. Social Security Administration , MSPB Docket No. SF-0752-18-
0753-I-1, Petition for Review (0753 PFR) File, Tab 1.
When an appellant files an appeal that is identical to claims raised in an
earlier appeal after the initial decision in an earlier appeal was issued, but before
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Zgonc
v. Department of Defense , 103 M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967
(Fed. Cir. 2007). By contrast, collateral estoppel, or issue preclusion, is
appropriate when (1) the issue is identical to that involved in the prior action;
(2) the issue was actually litigated in the prior action; (3) the determination on the
issue in the prior action was necessary to the resulting judgment; and (4) the party
against whom 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. Kavaliauskas v.
Department of the Treasury , 120 M.S.P.R. 509, ¶ 5 (2014); McNeil v. Department
of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). Collateral estoppel is only
appropriate when there is a final judgment in the previous litigation. Zgonc,
103 M.S.P.R. 666, ¶ 6.
At the time the administrative judge issued his initial decision, the
appellant’s petition for review in his 0753 appeal was still pending before the
Board. However, the Board now has issued its decision on the petition for review
in that case, affirming the initial decision dismissing his appeal for lack of
jurisdiction, so the administrative judge’s basis for dismissing the appeal is no
longer valid. See McNeil, 100 M.S.P.R. 146, ¶ 11; Lee v. Social Security
Administration, MSPB Docket No. SF-0752-18-0753-I-1, Final Order (Feb. 23,
2024) (0753 Final Order); 0753 PFR File, Tab 9. Under such circumstances, it
remains appropriate to dismiss the appellant’s claim challenging his 2018
resignation as involuntary in the instant appeal based on the doctrine of collateral5
estoppel, rather than on the basis of adjudicatory efficiency. McNeil,
100 M.S.P.R. 146, ¶ 11.
The purpose of collateral estoppel is to “relieve the parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.” Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 336-37 (1995) (quoting Allen v. McCurry ,
449 U.S. 90, 94 (1980)). Collateral estoppel is appropriate when: (1) the issue is
identical to that involved in the prior action; (2) the issue was actually litigated in
the prior action; (3) the determination on the issue in the prior action was
necessary to the resulting judgment; and (4) the party against whom the issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action. McNeil, 100 M.S.P.R. 146, ¶ 15 (2005).
The Board’s jurisdiction over the appellant’s appeal challenging his
resignation as involuntary was actually litigated before the Board in his
0753 appeal. The “actually litigated” element is satisfied when the issue was
properly raised by the pleadings, was submitted for determination, and was
determined. Kavaliauskas, 120 M.S.P.R. 509, ¶ 6. In the initial decision in the
prior case, the administrative judge found, after providing the parties with an
opportunity to address the jurisdictional issue, that the appellant failed to meet his
burden of making a nonfrivolous allegation that his resignation was involuntary
based on the following arguments: he was subjected to hostile or intolerable
work conditions purportedly perpetrated by the agency; he was forced to resign
because he was not provided with reasonable accommodations for his disability;
he had no alternative but to resign from his position; the agency threatened a
removal action it knew could not be substantiated; and his resignation was the
product of agency -provided misinformation or deceptive or misleading statements
by agency officials. 0753 ID at 1, 15-28.
Additionally, these findings were necessary to the administrative judge’s
determination in the prior initial decision that the Board lacks jurisdiction over6
the appellant’s involuntary resignation appeal. After the appellant petitioned for
review, the Board affirmed that decision. 0753 Final Order. Finally, the
appellant was represented by an attorney in his prior Board appeal and he had a
full and fair opportunity to represent himself in his subsequent petition for review
to the Board on that matter. See Fisher v. Department of Defense , 64 M.S.P.R.
509, 515 (1994) (determining that a party’s pro se status does not preclude the
application of collateral estoppel). Thus, the doctrine of collateral estoppel is
appropriate here. Because the doctrine of collateral estoppel precludes the
appellant from relitigating the issue of the Board’s jurisdiction over the
voluntariness of his decision to resign, the Board does not have jurisdiction over
his claim in the instant appeal challenging his 2018 resignation. Accordingly, we
modify the initial decision to clarify the basis for the dismissal of the appellant’s
involuntary resignation claim.3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
3 On review, the appellant appears to indicate that he has filed additional complaints
with OSC and refers to an “attached email exhibit” purportedly related to his OSC
complaint, but he failed to provide any attachments with his petition for review.
Petition for Review (PFR) File, Tab 1 at 6. To the extent the appellant may have filed a
whistleblower reprisal complaint with OSC, he may file an individual right of action
(IRA) appeal with the Board’s regional office in accordance with the Board’s
regulations. See 5 C.F.R. §§ 1209.5, 1209.6. The appellant should carefully review the
Board’s regulations to determine whether any IRA appeal he may file is timely. See
5 C.F.R. § 1209.5.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at8
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,9
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,10
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Lee_Danny_SF_3443-22-0586-I-1_Final_Order.pdf | 2024-03-26 | DANNY LEE v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-3443-22-0586-I-1, March 26, 2024 | SF-3443-22-0586-I-1 | NP |
1,947 | https://www.mspb.gov/decisions/nonprecedential/Mowder_Kristen_L_PH-0752-17-0376-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTEN L. MOWDER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-17-0376-I-2
DATE: March 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
W
illiam Simpson , Philadelphia, Pennsylvania, for the appellant.
David E. Mapp , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. 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 was removed from her position as a Postmaster with the
agency for improper conduct. Mowder v. U.S. Postal Service , MSPB Docket
No. PH-0752-17-0376-I-1, Initial Appeal File (IAF), Tab 4 at 20-24. She timely
filed this appeal with the Board. IAF, Tab 1.
On July 6, 2018, the administrative judge issued an initial decision
affirming the appellant’s removal. Mowder v. U.S. Postal Service , MSPB Docket
No. PH-0752-17-0376-I-2, Appeal File (I-2 AF), Tab 19, Initial Decision (ID).
The initial decision explained that it would become final on August 10, 2018,
unless the appellant filed a petition for review by that date. ID at 24-25. The
initial decision informed the appellant how to file such a petition for review with
the Clerk of the Board. ID at 25.
On August 9, 2018, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) received a petition for review from the appellant. Mowder v.
U.S. Postal Service , MSPB Docket No. PH-0752-17-0376-L-1, Litigation File,
Tab 1 at 2. Notably, although the envelope containing the appellant’s petition
was addressed to the Federal Circuit, the petition itself was addressed to the Clerk
of the Board. Id. at 2, 33. The Federal Circuit docketed the appellant’s petition
on August 13, 2018. Id. at 1.
The appellant then filed a petition for review with the Board on
September 20, 2018, asserting, among other things, that she filed with the Federal
Circuit in error. Mowder v. U.S. Postal Service , MSPB Docket No. PH-0752-17-
0376-I-2, Petition for Review (PFR) File, Tab 1 at 1. In her motion requesting
that the Board accept her petition as timely or waive the time limit for good
cause, the appellant asserted that she received the initial decision via mail on
July 13, 2018, and stated that her nervousness and inexperience caused her to
misread the section of the initial decision pertaining to her appeal rights and thus
send her petition to the Federal Circuit rather than the Board. PFR File, Tab 42
at 3. The agency has filed a response to both the petition for review and the
appellant’s motion on timeliness. PFR File, Tabs 3, 5.
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 appellant alleges that she received the initial decision on July 13,
2018, which is 7 days after the date of its issuance. PFR File, Tab 4 at 3. Thus,
she was required to file her petition for review with the Board by August 13,
2018.2 The appellant’s petition for review is postmarked September 20, 2018.
PFR File, Tab 1. It is therefore 38 days late.
The Board will excuse the untimely filing of a petition for review only
upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g); see Via v.
Office of Personnel Management , 114 M.S.P.R. 632, ¶ 5 (2010). 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. Via,
114 M.S.P.R. 632, ¶ 5; 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).
Generally, when an initial decision clearly informs an appellant where to
file her Board petition for review and she misdirects her petition to the Federal
Circuit, good cause does not exist for her later untimely filing with the Board.
2 Thirty days following July 13, 2018, was Sunday, August 12, 2018. The deadline for
filing a petition for review was therefore the next workday. 5 C.F.R. § 1201.23. 3
Marino v. Office of Personnel Management , 96 M.S.P.R. 294, ¶ 8 (2004), aff’d,
122 F. App’x 480 (Fed. Cir. 2005); Colon v. U.S. Postal Service , 71 M.S.P.R.
514, 517 (1996). Here, as explained previously, the initial decision provided that
it would become final on August 10, 2018, unless a petition for review was filed
with the Clerk of the Board by that date. ID at 24-25. The initial decision clearly
set forth how the appellant could file a petition for review and the Clerk of the
Board’s address. ID at 25. The initial decision further informed the appellant
that the Board’s final decision—which would be issued by the Board at a later
date if the appellant timely filed a petition for review, or would be the initial
decision itself if she did not timely file a petition for review—could be appealed
to, inter alia, the Federal Circuit. ID at 28-31. Thus, the initial decision clearly
informed the appellant of the proper procedures for filing a petition for review
with the Board.
Although the appellant has handled her own filings on review and filed a
petition with the Federal Circuit before the initial decision became final, that
alone does not warrant a waiver of the filing deadline. See Evans v. Office of
Personnel Management , 85 M.S.P.R. 36, ¶ 9 (1999); Olson v. U.S. Postal Service ,
66 M.S.P.R. 383, 387 -88 (1995). Inexperience with legal matters and
unfamiliarity with Board procedures does not excuse a failure to follow direct and
explicit instructions. Olson, 66 M.S.P.R. at 387-88; see Alexander v. Department
of Veterans Affairs , 51 M.S.P.R. 368, 370 (1991) (finding that the appellant failed
to establish good cause for her untimely filed petition for review when her
confusion led her to file a petition with the Federal court system instead of with
the Board and her confusion was not caused by the initial decision).
The appellant’s delay in filing the petition for review—38 days—was not
minimal. See Colon, 71 M.S.P.R. at 519 (finding that a 27-day delay in filing a
petition for review was not a minimal delay). Moreover, the delay was not due to
circumstances beyond her control, but was instead due to her own failure to
follow instructions. PFR File, Tab 4 at 3. Under these circumstances, we find4
that the appellant has failed to show good cause for a waiver of the filing
deadline. See Olson, 66 M.S.P.R. at 387-88.
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 removal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.. The court of appeals must 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 | Mowder_Kristen_L_PH-0752-17-0376-I-2_Final_Order.pdf | 2024-03-26 | KRISTEN L. MOWDER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-17-0376-I-2, March 26, 2024 | PH-0752-17-0376-I-2 | NP |
1,948 | https://www.mspb.gov/decisions/nonprecedential/Rosenlicht_Nicholas_Z_SF-0845-18-0592-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS Z. ROSENLICHT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-18-0592-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
icholas Z. Rosenlicht , Berkeley, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal regarding former spouse and current spouse survivor
annuities for lack of jurisdiction. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Nonetheless, we VACATE
the initial decision and DISMISS the appeal for lack of jurisdiction because the
appellant is collaterally estopped from relitigating the jurisdictional issue.
BACKGROUND
The appellant retired under the Federal Employees’ Retirement System in
November 2014. Initial Appeal File (IAF), Tab 5 at 7-8, 19. He subsequently
requested that the Office of Personnel Management (OPM) issue a
reconsideration decision on a variety of issues including the apportionment of his
annuities for his former spouse’s survivor annuity and an overpayment issue. Id.
at 12-13, 15, 17-18. Although OPM had provided him with an opportunity to
finalize his annuity election for his current spouse, the appellant did not make an
election. Id. at 13-15. Instead, he expressed to OPM that his decision “would
depend on the outcome of the decision regarding the former spouse survivor
annuity.” Id. at 18. In December 2017, OPM issued a reconsideration decision
solely on the overpayment issue. Id. at 19-21. It subsequently rescinded that
decision. Rosenlicht v. Office of Personnel Management , MSPB Docket No. SF-
0845-18-0150-I-1, Appeal File, Tab 7 at 4. OPM ultimately concluded that it
assessed the overpayment in error. IAF, Tab 5 at 22. 2
The appellant subsequently filed two appeals with the Board. In initial
decisions, the administrative judge considered the appellant’s claims regarding
his former spouse and current spouse survivor annuities but found that, because
OPM had not issued a final decision, the Board lacks jurisdiction. Rosenlicht v.
Office of Personnel Management , MSPB Docket No. SF-0845-18-0259-I -1, Initial
Decision at 3-6 (Mar. 29, 2018); Rosenlicht v. Office of Personnel Management ,
SF-0845-18-0150-I-1, Initial Decision at 3-4 (Jan. 19, 2018). Neither party filed
a petition for review of these decisions, and they are now final. See 5 C.F.R.
§ 1201.113 (explaining that an initial decision generally becomes final 35 days
after issuance absent a petition for review).
The appellant filed the instant appeal challenging OPM’s decision that his
former spouse was entitled to a survivor annuity and the reductions of his annuity
payments for a current spouse survivor annuity. IAF, Tab 1 at 4, Tab 5 at 4,
13-15. The administrative judge issued an order informing the appellant of the
applicable jurisdictional criteria and his burden of proving that the Board has
jurisdiction over his appeal. IAF, Tab 4 at 2-4. The appellant argued that OPM’s
December 2017 reconsideration decision included a final decision on the spousal
annuity issues. IAF, Tab 5 at 4-6. According to the appellant, the Board retained
jurisdiction over the December 2017 reconsideration decision because OPM had
failed to refund monies it collected as a result of its rescinded decision. Id.
at 5-6.
OPM responded by filing a motion to dismiss the appeal arguing, in
pertinent part, that “[t]he Board’s jurisdiction is limited to matters addressed by
OPM in its final decision,” and OPM had not issued a final decision on the
matters raised by the appellant in his appeal. IAF, Tab 7 at 4. OPM further
stated that, “the appellant will receive a final decision addressing is [sic] survivor
annuity issue.” Id. 3
Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction.2 IAF, Tab 9, Initial
Decision (ID). The administrative judge found that the appellant’s
November 2017 request for reconsideration did not request reconsideration
regarding the current spouse survivor annuity and thus OPM had not issued a
final decision on this issue. ID at 11 -12. She further found that the
December 2017 reconsideration decision was not a final agency decision on the
former spouse survivor annuity issue. ID at 9-10. Thus, the administrative judge
found that there was no reconsideration decision over which the Board could
exercise jurisdiction. ID at 12.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response, to which the appellant has replied. PFR
File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the Office of the Clerk of the Board issued an order directing
the appellant to show cause as to why his appeal should not be dismissed as
barred by collateral estoppel. PFR File, Tab 6. In response, the appellant argues
that, at the time the initial decisions were issued in his prior appeals, it was not
evident that OPM would not fully rescind its decision and restore him to the
status quo ante. PFR File, Tab 7 at 4. For the reasons discussed below, we find
that the appellant’s claim is barred by collateral estoppel, and, as a result, the
Board lacks jurisdiction over the instant appeal.
Collateral estoppel, or issue preclusion, is appropriate when (1) an issue is
identical to that involved in the prior action, (2) the issue was actually litigated in
the prior action, (3) the determination of the issue in the prior action was
necessary to the resulting judgment, and (4) the party precluded had a full and
fair opportunity to litigate the issue in the prior action. Hau v. Department of
2 The appellant withdrew his request for a hearing. IAF, Tab 3 at 4. 4
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). Collateral
estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a
jurisdictional determination in a prior decision is afforded collateral estoppel
effect and the appellant provides no other valid basis for Board jurisdiction. Id.
In the instant appeal, the appellant again argues that the December 2017
reconsideration decision was a final decision on the spousal annuity issues and its
rescission entitles him to be returned to the status quo ante. PFR File, Tab 1
at 5-8, Tab 7 at 4. The administrative judge in the appellant’s prior appeals found
that the December 2017 reconsideration decision was not a final decision on the
spousal annuities issues and, therefore, the Board lacked jurisdiction. Rosenlicht
v. Office of Personnel Management , MSPB Docket No. SF-0845-18-0259-I -1,
Initial Decision at 3-6 (Mar. 29, 2018) (finding that a final decision had not been
issued on the spousal annuity issues and thus they are not
within the Board’s jurisdiction); Rosenlicht v. Office of Personnel Management ,
SF-0845-18-0150-I-1, Initial Decision at 3-4 (Jan. 19, 2018) (finding that the
December 2017 reconsideration decision only addressed whether the appellant
was overpaid annuity supplement benefits and did not include a final decision on
the spousal annuity issues). Thus, the identical jurisdictional issue was litigated
in both the prior appeals.
Further, the administrative judge’s jurisdictional findings were necessary
for the dismissal of the appeals on that basis, the appellant was a party, and he
had a full and fair opportunity to litigate his claims. The appellant is thus
precluded from litigating this issue again, which is the sole basis of his claim in
this matter.
Accordingly, we dismiss this appeal for lack of jurisdiction. We vacate the
administrative judge’s jurisdictional determination, which was based on the lack
of a reconsideration decision as to the spousal annuity issues appealed.
ID at 9-12. The purpose of collateral estoppel is to avoid the costs and vexation5
caused by repetitive lawsuits. Hau, 123 M.S.P.R. 620, ¶ 16. To continue to
revisit the jurisdictional issue on the same grounds as in the two now-final initial
decisions would risk additional costs and could lead to inconsistent decisions.
See id.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Rosenlicht_Nicholas_Z_SF-0845-18-0592-I-1_Final_Order.pdf | 2024-03-25 | NICHOLAS Z. ROSENLICHT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-18-0592-I-1, March 25, 2024 | SF-0845-18-0592-I-1 | NP |
1,949 | https://www.mspb.gov/decisions/nonprecedential/Cooks_RaymondDE-0752-24-0001-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYMOND COOKS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-24-0001-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Anthony Dredden , San Antonio, Texas, for the appellant.
Ruth Russell , Esquire, Kansas City, Missouri, for the agency.
David Tomenes , Esquire, Minneapolis, Minnesota, for the agency.
Jodi Cozatt-May , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal. Petition for Review (PFR) File, Tab 3. For the reasons set forth below,
we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2After the filing of the petition for review, the parties submitted a signed
document entitled “SETTLEMENT AGREEMENT” with an effective date of
March 4, 2024. PFR File, Tab 7 at 4-7. The document provides, among other
things, for the withdrawal of the above-captioned appeal. 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 7 at 4-7. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances. In addition, we find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not2
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL 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 | Cooks_RaymondDE-0752-24-0001-I-1_Final_Order.pdf | 2024-03-25 | RAYMOND COOKS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-24-0001-I-1, March 25, 2024 | DE-0752-24-0001-I-1 | NP |
1,950 | https://www.mspb.gov/decisions/nonprecedential/Ballard_Tanya_M_AT-0752-17-0731-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANYA M. BALLARD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0731-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
anya M. Ballard , Yulee, Florida, pro se.
Karen L. Mulcahy , Esquire, Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was employed by the agency as a GS-06 Health Technician at
the Veterans Administration Medical Center in Gainesville, Florida. Initial
Appeal File (IAF), Tab 7 at 15. The agency removed the appellant from her
position pursuant to the terms of a Last Chance Agreement (LCA), effective
August 22, 2017. Id. at 16, 18-19. The appellant filed the instant appeal
challenging her removal. IAF, Tab 1. On December 21, 2017, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 33, Initial Decision (ID) at 1, 9.
On June 15, 2019, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board informed the
appellant that her petition for review appeared to be untimely filed, afforded her
15 days to file a motion to accept the petition as timely or waive the time limit for
good cause, and provided the appellant with a copy of the motion. PFR File,
Tab 2. The agency filed a response in opposition to the appellant’s petition for
review. PFR File, Tab 3.
On July 24, 2019, after the record on review closed, the appellant filed a
motion to accept the petition as timely or waive the time limit for good cause.2
PFR File, Tab 4. On October 1, 2019, she requested leave to file an additional
pleading regarding her equal employment opportunity (EEO) counsel’s
investigatory findings of additional acts of reprisal. PFR File, Tab 5. On
March 23, 2023, the appellant again requested leave to file additional evidence of
reprisal related to her 2017 removal.3 PFR File, Tab 10.
2 The Office of the Clerk of the Board set July 6, 2019, as the deadline for the
appellant’s motion. PFR File, Tab 2. We have nonetheless considered the appellant’s
late-filed motion and we still find that the appellant failed to establish that the time
limit should be waived for good cause.
3 Both of the appellant’s requests for leave to file an additional pleading involve
evidence concerning the merits of her appeal, and to the extent that the 2023 motion
alleges circumstances that may have caused a filing delay, she does not explain whether
any of them affected the timeliness of her petition for review and, if so, why she was
unable to present this information in her motion to waive the time limit. PFR File,2
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The date of a
filing submitted by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4(l).
Here, the initial decision stated that it would become final on January 25,
2018, unless a petition for review was filed by that date. ID at 9. The appellant
makes no allegation that she did not receive the initial decision or that she
received it more than 5 days after it was issued. The appellant’s petition for
review was postmarked on June 15, 2019; thus, that is its filing date. PFR File,
Tab 1 at 4-5; see 5 C.F.R. § 1201.4( l). Therefore, her petition for review was
filed over 16 months late.
The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s showing of
due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
Tabs 5, 10. Because the appellant has not shown that this additional evidence was not
readily available before the record closed on review despite her due diligence and that it
is of sufficient weight to warrant a different outcome, we deny her requests. See Ellis v.
Department of the Navy , 117 M.S.P.R. 511, ¶ 12 (2012); 5 C.F.R. § 1201.114(k). 3
which similarly shows a causal relationship to her inability to timely file her
petition. Id.
We find that the appellant has failed to show good cause for a waiver of the
filing deadline. Even considering the appellant’s pro se status, the appellant’s
nearly 17-month delay in filing her petition for review is significant. See Batiste
v. U.S. Postal Service , 98 M.S.P.R. 621, ¶ 8 (finding a 10 -month filing delay
significant), aff’d, 158 F. App’x 294 (Fed. Cir. 2005); Wright v. U.S. Postal
Service, 93 M.S.P.R. 444, ¶ 6 (2003) (finding an 8 -month filing delay
significant). As discussed below, the appellant has not presented evidence of due
diligence or the existence of circumstances beyond her control that affected her
ability to file her petition.
The appellant alleges that she was not aware of any filing deadline, that a
union official told her that she could file a petition for review at any time, and
that she could not afford an attorney. PFR File, Tab 1 at 1, Tab 4 at 10, 12. An
appellant’s confusion and lack of sophistication, which contribute to a late filing,
may be taken into account when determining whether good cause for a late filing
exists. Forst v. Office of Personnel Management , 97 M.S.P.R. 142, ¶ 7 (2004).
An appellant must show, however, that such confusion is related to a specific
ambiguity in either the instructions she received or in a Board procedure. Id.
Here, the appellant has not identified a specific ambiguity in the initial decision
or in any other instructions she received warranting her mistaken belief. The
initial decision provided the exact date upon which it would become final and by
which a petition for review must be filed. ID at 9. We find that the appellant’s
alleged confusion does not contribute to a finding of good cause for her untimely
petition for review. Even if the filing delay is somehow attributable to the poor
advice of the union official, such a situation does not provide a basis for a waiver
of the time limit. See Webb v. Merit Systems Protection Board , 70 F.3d 104, 106
(Fed. Cir. 1995) (finding that erroneous advice from a union representative does
not constitute good cause for excusing a late filing); Massingale v. Merit Systems4
Protection Board , 736 F.2d 1521, 1523 (Fed. Cir. 1984) (explaining that a delay
in filing cannot be excused on the ground of an appellant’s receipt of erroneous
advice from the union). Moreover, a claim of financial difficulties and inability
to afford an attorney does not excuse an untimely filing. PFR File, Tab 1 at 1,
Tab 4 at 10; Wright v. Railroad Retirement Board , 76 M.S.P.R. 330, 332 (1997);
Chapman v. Tennessee Valley Authority , 67 M.S.P.R. 246, 249-50 (1995).
Regarding the appellant’s assertion of homeless status, this assertion alone
does not establish good cause for an untimely filing. PFR File, Tab 1 at 1, Tab 4
at 10, 11, 13-14. The appellant has provided no evidence that she was homeless
at the time the initial decision was issued or when she received it. See Sutton v.
Office of Personnel Management , 113 M.S.P.R. 576, ¶ 9 (2010) (noting that
various conditions, including homelessness and transition among residences, did
not establish good cause for the appellant’s untimely petition for review without a
showing of how these conditions prevented timely filing), aff’d, 414 F. App’x 272
(Fed. Cir. 2011); Jones v. Social Security Administration , 111 M.S.P.R. 498,
¶¶ 10-11 (2009) (same). As previously noted, the appellant does not allege that
she did not receive the initial decision. In any event, the appellant is responsible
for notifying the Board of any changes in address as well as the timely forwarding
of her own mail. See 5 C.F.R. § 1201.22(b)(3). The record reflects that the
appellant did not undertake such actions in a timely manner here.4
The appellant makes a bare assertion that she was “depress[ed] and sick.”
PFR File, Tab 1 at 1. The Board will find good cause for waiver of its filing time
limits where a party demonstrates that she suffered from an illness that affected
her ability to file on time. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437
(1998). The Clerk’s notice informed the appellant of the requirements for doing
so. PFR File, Tab 2 at 7 n.1. The appellant’s vague assertion of health problems
4 On June 11, 2019, the appellant terminated her e-filing status and provided an updated
address. IAF, Tab 35. Later that same day, however, she reregistered as an e-filer.
IAF, Tab 36. These actions occurred well after the initial decision was issued on
December 21, 2017. IAF, Tabs 33, 34.5
does not constitute good cause for her untimely filing because she has not
explained how her health problems prevented her from filing a timely petition for
review. PFR File, Tab 1 at 1; see Trachtenberg v. Department of Defense ,
104 M.S.P.R. 640, ¶ 10 (2007) (finding no good cause for an untimely petition for
review because the appellant failed to show that she suffered from a medical
condition that affected her at the time of the filing deadline or during the entire
period of the delay); Coleman v. U.S. Postal Service , 91 M.S.P.R. 469, ¶ 10
(2002) (same).
We are not persuaded by the appellant’s argument that the administrative
judge’s long conversation with agency counsel about personal matters after the
hearing constituted evidence that the administrative judge favored the agency.
PFR File, Tab 4 at 12. The appellant’s belief that the administrative judge was
biased does not excuse a late petition for review. See Murphy v. Department of
Health and Human Services , 73 M.S.P.R. 287, 289 (1997).
The appellant asserts that the agency retaliated against her for filing
multiple EEO complaints, that the agency discriminated against her on the basis
of race and sex, and that the agency blocked her from obtaining reemployment
within the agency. PFR File, Tab 1 at 2-3, Tab 4 at 12-14. She indicates that she
reported the agency’s actions to her Congressman, the Equal Employment
Opportunity Commission, and former President Obama. PFR File, Tab 4
at 12-13. None of these allegations, even if true, show the existence of
circumstances beyond her control that affected her ability to comply with the
filing deadline or that she exercised due diligence under the circumstances.5
In addition, the appellant argues that the agency wrongfully terminated her,
that she did not breach the terms of the LCA, and that there is a discrepancy in
the initial decision regarding “another case with a man” but there was “no man in
5 To the extent the appellant is attempting to raise discrimination claims and a claim of
retaliation for having engaged in protected activity, the Board lacks jurisdiction over
such claims in the absence of an appealable action. Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012).6
the courtroom or on the job” and that “food” did not have anything to do with the
case. PFR File, Tab 1 at 2, Tab 4 at 12. The appellant’s arguments regarding the
merits of the underlying action are not relevant to the timeliness issue. Wright v.
Department of the Treasury , 113 M.S.P.R. 124, ¶ 7 (2010) (finding that the
appellant’s assertions regarding the merits of a case do not establish good cause
for an untimely filed petition for review).
Finally, for the first time on review, the appellant alleges that she was a
protected whistleblower and that she reported the agency’s actions to the Office
of Special Counsel (OSC) and the whistleblowing hotline.6 PFR File, Tab 1 at 2,
Tab 4 at 12. The Board will generally not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant
has not made this showing.
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 underlying 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).
6 Based on the appellant’s vague statements and the lack of relevant documents, such as
an OSC close-out letter or a description of the OSC complaint, it is unclear whether the
appellant is attempting to raise a claim of whistleblower reprisal. If the appellant
wishes to file an individual right of action appeal, she may do so with the appropriate
regional office in accordance with the Board’s procedures. See 5 C.F.R. §§ 1209.5,
1209.6.
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Ballard_Tanya_M_AT-0752-17-0731-I-1_Final_Order.pdf | 2024-03-25 | TANYA M. BALLARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0731-I-1, March 25, 2024 | AT-0752-17-0731-I-1 | NP |
1,951 | https://www.mspb.gov/decisions/nonprecedential/Wiesner_Andrew_C_PH-3443-22-0127-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW C. WIESNER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-3443-22-0127-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndrew C. Wiesner , Dover, New Hampshire, pro se.
Matthew L. Schmid , Portsmouth, New Hampshire, for the agency.
BEFORE
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 barred by res judicata and for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred by
applying the doctrine of res judicata to bar his appeal, reargues the merits of his
2013 removal, and reasserts that the terms of a 2020 agreement settling his civil
suit against the agency in the U.S. District Court for the District of Maine 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).
invalid because it was coerced and lacked required language stating that it
complied with the Older Workers Benefit Protection Act of 1990 (OWBPA),
codified at 29 U.S.C. § 626(f). Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant is collaterally estopped from relitigating his
claim that his security clearance was revoked based on false statements by a Navy
investigator, we AFFIRM the initial decision.
On review, the appellant argues that the administrative judge erred by
applying the doctrine of res judicata to dismiss his appeal challenging his 2013
removal based on the revocation of his eligibility for a security clearance because
he only discovered that his security clearance was “un-revoked” in 2019 after
he received records under the Freedom of Information Act, and the reinstatement
of his clearance provides a new basis for challenging his removal. Petition for
Review (PFR) File, Tab 1 at 5.
Under the doctrine of res judicata, a valid final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Carson v. Department of Energy , 398 F.3d 1369, 1375
(Fed. Cir. 2005); Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995) .2
Res judicata applies if (1) the prior decision was rendered by a forum with
competent jurisdiction, (2) the prior decision was a final decision on the merits,
and (3) the same cause of action and the same parties or their privies were
involved in both cases. Carson, 398 F.3d at 1375.
The administrative judge did not inform the appellant that his appeal may
be barred by res judicata or specifically identify the elements of proof for res
judicata and provide the appellant with an opportunity to provide evidence and
argument as to why his appeal should not be dismissed before issuing the initial
decision dismissing the appeal on that basis. Initial Appeal File (IAF), Tab 3.2
An appellant must receive explicit information on what is required to
establish Board jurisdiction. Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985). By analogy, such notice is presumably
required before dismissing a claim as precluded. However, an administrative
judge’s failure to provide an appellant with proper Burgess notice may be cured if
the agency’s pleadings or the initial decision contain the notice that was
otherwise lacking. Harris v. U.S. Postal Service , 112 M.S.P.R. 186, ¶ 9 (2009).
The agency’s motion to dismiss the appeal cured the administrative judge’s error
by identifying the proper elements of proof for res judicata, as did the initial
decision, so the deficient notice was cured here. IAF, Tab 17 at 10-11; IAF,
Tab 38, Initial Decision (ID) at 3-4.
The administrative judge also properly found that the elements of res
judicata were satisfied in this case. ID at 6. The Board had jurisdiction over the
appellant’s 2013 appeal of his removal, and the Board’s subsequent decision in
that prior appeal constitutes a final decision on the merits. See Wiesner v.
Department of the Navy , MSPB Docket No. PH-0752-14-0342-I-1, Initial
Decision at 1-2 (June 3, 2014); see also Wiesner v. Department of the Navy ,
2 It appears that a preliminary telephonic status conference was held, but the
administrative judge did not issue an order summarizing the status conference, so it is
unclear whether the potential preclusive effect of the appellant’s prior appeal was
addressed during the conference. IAF, Tab 10. 3
MSPB Docket No. PH-0752-14-0342-I-1, Final Order, ¶ 1 (Dec. 15, 2014).
Accordingly, the first two criteria for application of res judicata are met.
Additionally, the third criteria is met because the instant appeal involves the same
cause of action as the 2013 appeal—the appellant’s removal based on the
revocation of his security clearance. To the extent that the appellant suggests that
res judicata should not apply because the instant appeal is based on a new legal
theory challenging his removal, the Board has held that appellants are not entitled
to return to the Board on the basis that they have developed a new theory. See
Sabersky v. Department of Justice , 91 M.S.P.R. 210, ¶¶ 7-8 (2002) (explaining
that res judicata bars an appellant from challenging a cause of action under a new
legal theory). Accordingly, we agree with the administrative judge’s finding that
the appellant’s challenges to his 2013 removal are barred by res judicata.3
Regarding the appellant’s challenge to the December 2020 agreement
settling his civil suit against the agency, that settlement agreement was entered
into the record in a case before the U.S. District Court for the District of Maine,
not in a Board appeal. IAF, Tab 1 at 8-14. The Board may not address the
appellant’s allegation that the settlement agreement is invalid because it was
coerced and does not comply with OWBPA because the Board has no authority to
invalidate a settlement agreement reached in another forum. See, e.g., Johnson v.
U.S. Postal Service , 108 M.S.P.R. 502, ¶ 8 n.5 (2008), aff’d, 315 F. App’x 274
3 Regarding the appellant’s argument that he is a partially recovered individual under
the Federal Employees’ Compensation Act (FECA) and that he is entitled to restoration
to his position, the appellant was removed from his position based on the revocation of
his eligibility for a security clearance and assignment to a sensitive position, not as a
result of any compensable injury, and so FECA is inapplicable to this appeal. PFR File,
Tab 1 at 4; see Wiesner v. Department of the Navy , MSPB Docket No. PH-0752-14-
0342-I-1, Final Order at ¶¶ 2-5 (Dec. 15, 2014) (noting that in order to be entitled to
certain rights to restoration, a covered individual must have been separated from their
position “as a result of a compensable injury”); 5 C.F.R. § 353.103(b). Thus, the Board
lacks jurisdiction over the appellant’s restoration claim. See Kingsley v. U.S. Postal
Service, 123 M.S.P.R. 365, ¶ 11 (2016) (explaining that an appellant must, as relevant
here, nonfrivolously allege that he was absent from work due to a compensable injury to
establish jurisdiction over his restoration claim). 4
(Fed. Cir. 2009); Goodwin v. Department of the Treasury , 52 M.S.P.R. 136, 139
n.2 (1991), aff’d, 983 F.2d 226 (Fed. Cir. 1992); Danelishen v. U.S. Postal
Service, 43 M.S.P.R. 376, 379-80 (1990). To the extent the appellant believes
that he should not be bound by the settlement agreement or that the agreement is
invalid, he may bring a proceeding to invalidate the agreement in the proper
forum. Johnson, 108 M.S.P.R. 502, ¶ 8 n.5.
Finally, we modify the initial decision to find that the appellant is
collaterally estopped from relitigating his claim that his security clearance was
revoked based on false statements by a Navy investigator. Under the doctrine of
collateral estoppel, once an adjudicatory body has decided a factual or legal issue
necessary to its judgment, that decision may preclude relitigation of the issue in a
case concerning a different cause of action involving a party to the initial case.
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). Collateral estoppel, or issue preclusion, is appropriate when (1) the issue
is identical to that involved in the prior action; (2) the issue was actually litigated
in the prior action; (3) the determination of the issue in the prior action was
necessary to the resulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Id. The Board has held that collateral
estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a
jurisdictional determination in a prior decision is afforded collateral estoppel
effect and the appellant provides no other valid basis of Board jurisdiction. Id.
In the initial decision, the administrative judge concluded that the only
issue the appellant had not raised in his previous Board appeals was his claim that
his security clearance was revoked based on false statements by a Navy
investigator. ID at 6. Consequently, he considered this argument and determined
that the Board lacked jurisdiction over this claim because the Board could not5
review the substance of the underlying security clearance determination, citing
the U.S. Supreme Court’s decision in Department of the Navy v. Egan , 484 U.S.
518 (1988). ID at 6.
However, the appellant made this identical argument in a prior Board
appeal, and the same administrative judge that adjudicated the instant appeal
concluded that the Board lacked jurisdiction over that claim on the same basis in
that prior appeal. See Wiesner v. Department of the Navy , MSPB Docket No.
PH-3443-21-0204-I-1, Initial Appeal File, Tab 1 at 10; Tab 7 at 4-5; Tab 13,
Initial Decision at 6. The Board has since issued a Final Order that denies the
petition for review and affirms the initial decision in that prior case. Wiesner v.
Department of the Navy , MSPB Docket No. PH-3443-21-0204-I-1, Final Order
at 2 (Mar. 8, 2024). Additionally, the finding that the Board lacks the ability to
review the substance of the underlying security clearance determination was
necessary to the jurisdictional determination in the prior appeal. Thus, the
elements of collateral estoppel have been satisfied here, and we modify the initial
decision to find that the appellant is collaterally estopped from relitigating this
claim in the instant appeal.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Wiesner_Andrew_C_PH-3443-22-0127-I-1_Final_Order.pdf | 2024-03-25 | ANDREW C. WIESNER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-3443-22-0127-I-1, March 25, 2024 | PH-3443-22-0127-I-1 | NP |
1,952 | https://www.mspb.gov/decisions/nonprecedential/Giardina__Patricia__E_AT-0752-20-0677-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA ELLEN GIARDINA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-20-0677-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
eorgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
David Kendrick , Esquire, Panama City, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the Board’s current standard for analyzing the appellant’s discrimination
and retaliation claims, we AFFIRM the initial decision.
BACKGROUND
At all times relevant to the present appeal, the appellant held the position
of Scientist (Oceanographer) with the Naval Surface Warfare Center Panama City
Division. Initial Appeal File (IAF), Tab 1 at 1, Tab 12 at 145. In 2019, the
appellant applied for a vacancy announcement for Branch Head for the Littoral
Acoustics and Target Physics Branch but was not selected. IAF, Tab 19 at 6,
15-16. The individual who was selected for the position in March 2019 became
the appellant’s first-level supervisor. IAF, Tab 12 at 51, Tab 19 at 16, 68.
In June 2019, the appellant’s new supervisor gave her a detailed tasking
assignment “to assist in the development of a written trade study focused on
non-GPS position, navigation and timing technologies specifically for maritime
environments.” IAF, Tab 12 at 97-101. The assignment set forth 6 specific tasks,
i.e., 5 research tasks and a 3,000-word trade study report presenting her findings
on the research tasks. Id. at 97-99. The assignment set forth deadlines for each
of the tasks, including a draft and final version of the trade study report. Id.
at 100. Finally, the assignment explicitly set forth the dates and times of weekly
status meetings between the appellant and her supervisor. Id. The original2
deadline to complete the research and draft report was September 30, 2019. Id.
at 97. However, in December 2019, the appellant’s supervisor provided an
extension of time, until February 5, 2020, in order to allow the appellant to
complete the tasking assignment and address the problems he identified with her
work product. Id. at 84, 92-96. In his email transmitting the updated tasking
assignment, the supervisor stated that the weekly meetings would recommence
and that the updated document contained a list of the dates, times, and locations
of the meetings. Id. at 84, 96.
The record suggests that the appellant and her supervisor had a difficult
working relationship from the start, resulting in progressive discipline concerning
the appellant’s purported disrespectful and unprofessional conduct, including a
May 2019 letter of reprimand, a June 2019 three-day suspension, an August 2019
five-day suspension, and a November 2019 twelve-day suspension. Id. at 128-43.
In September 2019, the appellant filed a formal equal employment
opportunity (EEO) complaint raising over 20 claims on the basis of age, race,
color, religion, and retaliation for EEO activity, including her nonselection for the
supervisory position. IAF, Tab 11 at 34-40, 72. The formal EEO complaint
included 15 claims identifying the supervisor and 6 claims identifying the
Division Head, concerning disciplinary actions ranging from the letter of
reprimand to suspensions. Id. at 73-75. The appellant amended her EEO
complaint in November 2019 to include a 12-day suspension identifying the
Division Head. Id. at 88-90, 95.
In January 2020, the supervisor issued a notice of proposed removal based
on the charges of unprofessional conduct (one specification) and failure to follow
instructions (one specification). IAF, Tab 12 at 57-61. The first specification
alleged that the appellant failed to attend a scheduled weekly meeting regarding
the tasking assignment on December 18, 2019. Id. at 57. The specification
further stated that the appellant’s response to her supervisor’s email concerning
the missed meeting included the following statement: “I am a Scientist, I would3
like to conduct research at work. I do not want to play administrative games with
you. Please be respectful of me as a person and a Scientist.” Id. at 57-58. The
failure to follow instructions charge alleged that the appellant failed to meet the
extended January 10, 2020 deadline for the five research tasks in the tasking
assignment and that she had not informed her supervisor of any potential
problems with meeting the due dates. Id. at 58. The supervisor noted that he had
provided “generous time extensions” despite the appellant’s refusal to meet her
deadlines, and that she failed to incorporate his assessments on her drafts. Id.
The agency rescinded the proposed removal and issued a subsequent
proposal to remove the appellant following events that transpired during the
January 28, 2020 meeting in which the agency presented the appellant with the
proposed action. Id. at 51-56. The new proposal included two additional
specifications of unprofessional conduct, based on the findings of a Command
Evaluation and Investigations Office inquiry. Id. at 52-53. The Command
Directed Investigation (CDI) report substantiated allegations that the appellant
had made inappropriate remarks to Federal employees and used a personal
cellphone camera to take unauthorized pictured on the U.S. Navy installation. Id.
at 72-81. Specification 2 alleged that, after being presented with the notice of
proposed removal, the appellant called her colleagues derogatory names including
“despicable” and “idiots,” and that she referred to certain management officials as
“fucking despicable, low-lifes.” Id. at 52. The specification further alleged that
the appellant exhibited disorderly conduct while being escorted by base police by
“physically trying to push past a police officer and get into the [commanding
officer’s] office,” before eventually complying with directions to leave the
building. Id. Specification 3 alleged that the appellant took photographs of base
police officers with her cell phone despite being directed “repeatedly to put the
phone down,” and that she was brought to the base police station for processing.
Id. at 53. The specification alleged that the appellant had violated an agency
policy regarding the use of cameras on the installation. Id. The deciding official4
sustained the proposed removal. Id. at 16-23. He sustained specifications 1 and
2 of the charge of unprofessional conduct and the charge of failure to follow
instructions. Id. at 18-21. He did not sustain specification 3 of the
unprofessional conduct charge. Id. at 19-20.
The appellant timely appealed her removal, arguing that the agency
“retaliated against her for prohibited personnel practices and age discrimination.”
IAF, Tab 1 at 4. The appellant maintained that she “was subjected to
unwarranted severe progressive disciplinary action” for 1 year and experienced
severe prejudice for many years. Id. After holding a hearing, the administrative
judge issued an initial decision affirming the appellant’s removal. IAF, Tab 30,
Initial Decision (ID) at 1, 17. She found that the agency proved the charges of
unprofessional conduct and failure to follow instructions. ID at 5-12. The
administrative judge found that the agency had established a nexus between the
appellant’s misconduct and the efficiency of the service and that the penalty of
removal was reasonable. ID at 12, 16. Finally, she found that the appellant failed
to prove her affirmative defenses of discrimination based on race or age or
retaliation for EEO activity. ID at 12-15.
The appellant has filed a petition for review, challenging the administrative
judge’s findings sustaining the charges and penalty and determining that she
failed to prove her affirmative defenses. Petition for Review (PFR) File, Tab 1
at 7-15. The agency has filed a substantive response, and the appellant has filed a
reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s due process argument is unpersuasive.
On petition for review, the appellant argues that the initial decision must be
reversed because the deciding official “committed a due process error” by
considering the appellant’s allegedly unacceptable performance as an aggravating
factor, without notifying her that he was considering performance in the penalty5
determination. PFR File, Tab 1 at 6-7; ID at 13 n.16. The administrative judge
noted that the appellant raised this argument for the first time at the hearing. ID
at 13 n.16. During the hearing, the deciding official testified that he had
completed a written, formal penalty analysis and provided the document to
Human Resources (HR). IAF, Tab 28, Hearing Testimony (HT). Because it was
unclear whether the agency had produced the document during discovery, the
administrative judge ordered the agency to submit the Douglas2 factors checklist
into the record. Id.; IAF, Tab 27. The administrative judge found the appellant’s
argument to be without merit, “considering this action was predicated on the
appellant’s poor performance and failure to complete her work as required.” ID
at 12 n.16.
When an agency intends to rely on aggravating factors as the basis for the
imposition of a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the agency’s deciding official. Lopes v. Department of the
Navy, 116 M.S.P.R. 470, ¶ 5 (2011). The U.S. Court of Appeals for the Federal
Circuit has explained that, if an employee has not been given notice of any of the
aggravating factors supporting an enhanced penalty, an ex parte communication
with the deciding official regarding such factors may constitute a constitutional
due process violation because it potentially deprives the employee of notice of all
of the evidence being used against her and the opportunity to respond to it. Ward
v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011). This analysis
applies not only to ex parte communications introducing information that
previously was unknown to the deciding official, but also to information
personally known and considered by the deciding official, if that information was
not included in the notice of proposed removal to the appellant. Lopes,
116 M.S.P.R. 470, ¶ 10.
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board set
forth a nonexhaustive list of 12 factors that are relevant in assessing the penalty to be
imposed for an act of misconduct. 6
On review, the appellant acknowledges that the notice of proposed removal
“mentioned job performance,” but maintains that she had not been told prior to
her removal that her job performance was unacceptable. PFR File, Tab 1 at 6;
IAF, Tab 12 at 54. She argues that the administrative judge “erroneously
conclude[d]” that her removal was predicated on poor performance, when the
action concerned alleged misconduct. PFR File, Tab 1 at 7. The appellant asserts
that the agency “provided no advanced warning” that the removal action was
based on poor performance and that “it was a shock” to learn this information
during the hearing. Id. In her reply to the agency’s response to the petition for
review, the appellant seems to combine her due process argument with her
affirmative defense of retaliation for EEO activity. PFR File, Tab 4 at 5. In
support of her conclusory declaration that, “[b]ased on the record there is no
way” that the deciding official considered only the material in the notice of
proposed removal, the appellant merely states that the proposing and deciding
officials are named parties in her EEO complaint. Id.
The appellant mischaracterizes the administrative judge’s findings.
Although the administrative judge noted in a footnote that the removal action was
“predicated on the appellant’s poor performance and failure to complete her work
as required,” the initial decision sustained the appellant’s removal for two
charges of misconduct pursuant to chapter 75. ID at 5-12, 13 n.16. As the
agency argues, the notice of proposed removal referenced extensive prior
discipline for unprofessional conduct towards management officials and failure to
follow instructions regarding her work assignments. PFR File, Tab 4 at 5; IAF,
Tab 12 at 54. Copies of all of the disciplinary actions were enclosed with the
notice of proposed removal. IAF, Tab 12 at 128-43. Given her extensive prior
discipline related to the carrying out of her job duties and interactions with
management, the appellant’s assertion that “it was a shock” to learn at the hearing
that her job performance played a role in the penalty analysis is not credible, at
best. PFR File, Tab 1 at 7.7
During the hearing, the appellant’s attorney asked the deciding official
several direct questions about the appellant’s job performance, beginning with the
question, “Didn’t she maintain an excellent record for 30 years?” HT. The
deciding official testified that, while the appellant had never been on a
performance improvement plan, her performance was barely satisfactory. HT.
The deciding official testified that his decision was based on conduct, not
performance. HT. Regarding the Douglas factors worksheet, the deciding
official did check “No” to the question of whether the appellant’s performance
was “currently acceptable.” IAF, Tab 27 at 7. However, in the explanation
section discussing his finding that it was an aggravating factor, the deciding
official highlighted the appellant’s shortcomings in engaging with fellow
coworkers, securing funding for projects, and that she was not dependable on
research-related tasks. Id. These issues were addressed in the notice of proposed
removal and the appellant’s prior disciplinary actions. IAF, Tab 12 at 54, 126-43.
Moreover, the deciding official stated in the decision letter that he had taken into
account the appellant’s “performance on the job, ability to get along with fellow
workers, and dependability.” Id. at 21. Therefore, we find that the appellant has
presented no convincing evidence or argument that the agency deprived her of
notice of all of the evidence being used against her and the opportunity to respond
to it. Ward, 634 F.3d at 1280; Lopes, 116 M.S.P.R. 470, ¶ 5; see 5 C.F.R.
§ 1201.56(b)(2)(i)(c) (stating that the appellant has the burden of proof with
respect to affirmative defenses).
The appellant has presented no basis for disturbing the administrative judge’s
findings that the agency proved the charges and the reasonableness of the penalty.
The administrative judge properly sustained the charges of
unprofessional conduct and failure to follow instructions.
On petition for review, the appellant argues that the administrative judge
erred in sustaining the charges. PFR File, Tab 1 at 7-13. Most of her arguments
constitute mere disagreement with the administrative judge’s factual findings and8
credibility determinations. Id. The administrative judge thoroughly reviewed the
record evidence and made reasoned credibility findings in sustaining the charges
of unprofessional conduct and failure to follow instructions. ID at 6-12. We note
that the appellant does not challenge the administrative judge’s finding that the
agency proved that there was a nexus between the charged misconduct and the
efficiency of the service, and we see no basis to disturb that finding. PFR File,
Tab 1 at 4-15, Tab 4 at 4-7; ID at 12. For the reasons discussed below, we find
that the appellant has presented no basis for us to reweigh the evidence or
substitute our assessment of the evidence for that of the administrative judge. ID
at 9-26; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility); Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357, 359 (1987).
Regarding specification 1 of the unprofessional conduct charge, the
administrative judge found the proposing official’s testimony straightforward,
sincere, and consistent with the written record. ID at 7 (citing Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458-62 (1987) (identifying factors that
an administrative judge must consider in making credibility determinations). In
contrast, she found that the appellant’s testimony conflicted with the written
evidence and was not believable. ID at 7. On review, the appellant argues that
she was present at the time of the scheduled meeting and that her email, the
content of which she does not challenge, was not unprofessional. PFR File, Tab 1
at 8-16. She declares that “it is inherently improbable” that her supervisor was at
the meeting because he did not send her an email about her failure to attend the
meeting until 114 minutes after the scheduled time. Id. at 8. The appellant’s
arguments are mere disagreement with the administrative judge’s findings and she
does not present a compelling basis for overturning the administrative judge’s
credibility determinations. See Haebe v. Department of Justice , 288 F.3d 1288,9
1301 (Fed. Cir. 2002) (holding that the Board may overturn credibility
determinations only when it has “sufficiently sound” reasons for doing so).
Regarding specification 2 of the unprofessional conduct charge, the
administrative judge considered the testimony of the proposing official as well as
agency HR and security personnel. ID at 8-9; IAF, Tab 12 at 19, 72-81. The
appellant does not challenge the facts set forth in the specification, but rather
argues that the agency exaggerated the severity of the behavior, essentially
making an argument that the penalty was excessive because calling agency
personnel “despicable and idiots . . . does not warrant removal.” PFR File, Tab 1
at 10-11. She declares that her trying to enter the base commander’s office, but
stopping after security intervened, constituted “oppositional activity,” not
unprofessional conduct. Id. at 11. The administrative judge properly considered
the testimony of the appellant and multiple agency witnesses, rather than relying
on the CDI report, which contained only the investigator’s conclusions rather than
the original witness statements and for which appellant was not interviewed. ID
at 10 n.14. The appellant does not raise any argument that warrants the Board
reweighing the evidence or substituting our assessment with that of the
administrative judge. See Crosby, 74 M.S.P.R. at 105-06; Broughton,
33 M.S.P.R. at 359.
Finally, the appellant asserts that the administrative judge “impermissibly
ignore[d]” specification 3 of the unprofessional conduct charge. PFR File, Tab 1
at 11. Contrary to the appellant’s assertion, the administrative judge specifically
noted that the deciding official did not sustain this specification. ID at 6 n.9;
IAF, Tab 12 at 19-20. It is well established that the Board is required to review
the agency’s decision in an adverse action solely on the grounds invoked by the
agency. See Byers v. Department of Veterans Affairs , 89 M.S.P.R. 655, ¶ 22
(2001). Indeed, any consideration of this specification by the administrative
judge would have been in error. See Akers v. Department of the Treasury ,
100 M.S.P.R. 270, ¶ 7 (2005) (finding that the administrative judge’s action of10
sustaining a specification that the deciding official did not sustain was error),
aff’d, 190 F. App’x 941 (Fed. Cir. 2006).
Regarding the charge of failure to follow instructions, the appellant’s
primary argument seems to be that, because the proposing official acknowledged
in the specification that she had given “generous time extensions,” the
administrative judge erred in finding that she had failed to follow the instructions
in the tasking assignment. PFR File, Tab 1 at 12-13; IAF, Tab 12 at 20-21. The
administrative judge found that the appellant failed to complete the assignments
even after receiving multiple extensions. ID at 10-11. Although the appellant
maintains that she completed the tasking assignment “multiple times” and the
proposing official chose not to accept her work, the administrative judge noted
that the appellant did not deny that she failed to incorporate his edits and the
appellant does not challenge this finding on review. ID at 11; PFR File, Tab 1
at 12. The documentary evidence in the record demonstrates that the appellant
received clear notice and instructions from her supervisor regarding her missed
deadlines and incomplete tasks. IAF, Tab 12 at 84, 102, 110. The appellant’s
conclusory argument that the proposing official “set [her] up for failure” is not
supported by the evidence. PFR File, Tab 1 at 12.
The administrative judge properly sustained the penalty of removal.
When, as here, all of the agency’s charges are sustained, the Board will
review the agency-imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. See Pinegar v. Federal Election Commission ,
105 M.S.P.R. 677, ¶ 53 (2007); Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305-06 (1981). In making this determination, the Board must give due
deference to the agency’s primary discretion in maintaining employee discipline
and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Pinegar, 105 M.S.P.R. 677, ¶ 53. The Board will modify or11
mitigate an agency-imposed penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty clearly exceeds the bounds of
reasonableness. Id.
Regarding the penalty, we first note that the bulk of the appellant’s
arguments about the penalty actually concern her affirmative defenses. She
opines that the penalty of removal was improper because the removal action was
“tainted by discrimination and retaliation.” PFR File, Tab 1 at 7-15. The
appellant argues that the proposing official “relied on communications of
protected EEO and whistleblowing activity to justify increasingly harsh
discipline.” PFR File, Tab 4 at 5. Her main argument addressing the penalty is
that the administrative judge should have considered the issue of provocation in
determining whether the penalty of removal was reasonable, particularly
concerning the unprofessional conduct charge regarding her behavior at the
meeting in which the agency presented her with the notice of proposed removal.
PFR File, Tab 1 at 9-10. She also asserts generally that the proposing official’s
“harassment was part of the provocation” and that the agency was “taking
advantage of how they unfairly provoked [her] by failing to separate her from her
harasser.” Id. at 10. The deciding official testified that it was the agency’s
practice to have the supervisor, in addition to HR, present for all proposed
disciplinary actions. HT.
The administrative judge found that the deciding official’s testimony was
consistent with his statements in the removal decision letter. ID at 16; HT; IAF,
Tab 12 at 22. In finding the appellant’s past discipline an aggravating factor, the
deciding official emphasized that the nature of the appellant’s earlier
disrespectful and unprofessional misconduct was similar to that in the present
appeal. IAF, Tab 12 at 22, Tab 27 at 6. Additionally, the administrative judge
noted that the appellant’s extensive prior discipline “put her on notice that her
continued behavior would not be tolerated” and demonstrated “a consistent failure
to comply with instructions.” ID at 16. Therefore, the administrative judge12
found that the appellant’s 34 years of Federal service were outweighed by the
aggravating factors. Id. The appellant’s conclusory argument that she should not
be held accountable for her conduct because the agency provoked her by failing
to separate her from the supervisor she claimed was “her harasser” provides no
basis for disturbing the administrative judge’s penalty assessment. PFR File,
Tab 1 at 10. We agree with the administrative judge that the deciding official
properly weighed the appropriate Douglas factors and that the record supports the
penalty of removal. ID at 16.
The administrative judge correctly found that the appellant failed to prove her
discrimination and retaliation affirmative defenses.
The appellant asserts that the administrative judge erred in finding that the
preponderance of the evidence did not support her claims of discrimination based
on age and race. PFR File, Tab 4 at 5. In the initial decision, the administrative
judge concluded that the appellant failed to prove that age or race was a
motivating factor in her removal. ID at 13-14. The administrative judge found
that the appellant had “done little to explain why she believed her age was a
factor in the agency’s decision to remove her” other than raising the affirmative
defense of age discrimination. ID at 13. Similarly, the administrative judge
found that the appellant “provided scant evidence” to support her claim of
discrimination on the basis of race. ID at 14.
The Age Discrimination in Employment Act states that “personnel
actions . . . shall be made free from any discrimination based on age.” 29 U.S.C.
§ 633a(a). Similarly, Title VII requires that such actions “shall be made free
from any discrimination based on race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-16(a). Thus, an appellant may prove a claim of discrimination
by showing that such discrimination “play[ed] any part” in the way a decision
was made. Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020); Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 21. A finding that prohibited
discrimination played “any part” in the contested action is the same as a finding13
of “motivating factor.” Pridgen, 2022 MSPB 31, ¶ 21. One may prove
discrimination by various methods. Id., ¶¶ 23-24.
On review, the appellant’s entire argument regarding age discrimination
consists of a statement that she was over 40 years old at the time of the relevant
events in the removal proceeding and “show[ed] that similarly situated employees
were treated differently.” PFR File, Tab 4 at 6. She does not cite any evidence
or argument in the record or hearing testimony where she identified purported
comparators. Id. Regarding her claim of discrimination on the basis of race, the
appellant makes no argument whatsoever on review in support of her conclusory
declaration that the administrative judge erred in finding that the evidence did not
support the claim. PFR File, Tabs 1, 4. The appellant has provided no basis for
disturbing the administrative judge’s findings that she failed to prove that either
her race or age was a motivating factor in the agency’s action.
The appellant also challenges the administrative judge’s findings on her
retaliation claim, arguing that the agency took “intentional and deliberate steps”
to harm her after she filed an EEO complaint regarding her nonselection for the
branch chief position and intended to “chill her EEO rights.” PFR File, Tab 1
at 13. Claims of retaliation for opposing discrimination in violation of Title VII
are analyzed under the same framework used for Title VII discrimination claims.
Pridgen, 2022 MSPB 11, ¶ 30. Thus, the appellant must establish by
preponderant evidence that her EEO activity was at least a motivating factor in
her removal. Id., ¶ 31.
On review, the appellant claims that a prior disciplinary action, a 5-day
suspension for disrespectful and unprofessional conduct concerning an email the
appellant sent to her supervisor, was “direct evidence of retaliation” because
agency officials disciplined her for “complaining about their harassment.” PFR
File, Tab 1 at 13; IAF, Tab 12 at 135-36. She argues that her “removal builds on
this rotten core” and “is necessarily tainted by it.” PFR File, Tab 1 at 14. The
appellant’s email to her supervisor (the proposing official in both the suspension14
and present removal actions) that resulted in the suspension contained the
sentence, “I in no way accept the harassment by you or any other people in X
department.” IAF, Tab 12 at 136. However, the seven-sentence email also stated
that her supervisor “and all involved [were] a disgrace to the US Navy” and that
she was “not forgiving” and would “not forget all these actions taken.” Id.
During the hearing, in response to extensive questioning from the appellant’s
attorney regarding the circumstances around this prior discipline, the deciding
official testified that there was “no tolerance for harassment in his organization”
and that he had referred the matter to HR because the mail contained the word
“harassment.” HT. As noted by the administrative judge, the deciding official
testified that he told the appellant, “if you feeling like you’re being harassed, let’s
go to EEO.” ID at 15; HT. The appellant’s attorney questioned the deciding
official whether he disciplined her for sending an email using the term
“harassment,” and the deciding official responded that the basis of the suspension
was the overall disrespectful statements in the email to her supervisor and not that
she had raised the issue of harassment. HT.
Having reviewed the relevant hearing testimony and written record, we find
the appellant’s argument that the agency took progressive discipline against her in
order to chill her EEO rights unpersuasive and unsupported by the evidence. PFR
File, Tab 1 at 13. We note that the administrative judge focused only on the
appellant’s nonselection claim in her formal EEO complaint filed in
September 2019, but the complaint included numerous other claims prior to the
branch chief hiring action and subsequent actions taken by the proposing and
deciding officials, including the progressive discipline actions. ID at 15; IAF,
Tab 11 at 38-39, 48-49, 88-89, 97-98.3 Therefore, although the administrative
judge correctly noted that the proposing official was the selectee in the contested
3 The appellant amended her EEO complaint to include the notice of proposed removal.
IAF, Tab 11 at 104. However, a signed statement from the agency’s Deputy Director of
EEO stated that there was no record of any amendment to the complaint adding the
removal action itself. Id. at 27.15
hiring action and not involved in the selection decision, the appellant did raise
numerous complaints regarding actions taken by him. ID at 15. Nevertheless, the
appellant’s repeated amendments to her EEO complaint adding actions taken by
the proposing officials do not demonstrate that the removal action was taken in
retaliation for this EEO activity.
The appellant asserts on review that the agency failed to follow U.S. Navy
and Department of Defense policies about separating an employee from her
“harasser.” PFR File, Tab 1 at 14, Tab 4 at 5. Although she cites generally to
lengthy policies about conduct, she does not cite to any specific provision or any
regulation with which she claims the agency failed to comply.
Finally, regarding the specification 3 of the unprofessional conduct charge,
which was not sustained by the deciding official, the clear language reflects that
the specification was based on the report of an investigation directed by the
commanding officer of the U.S. naval installation. IAF, Tab 12 at 52-53. We
find the appellant’s assertion on review that the proposing official’s inclusion of
this specification constituted evidence of retaliation without merit. PFR File,
Tab 1 at 14. Therefore, we agree with the administrative judge’s motivating
factor analysis. Because we find that the appellant failed to prove that
discrimination on the basis of age or race or retaliation for EEO activity was a
motivating factor in her removal, we do not reach the question of whether these
factors were a “but-for” cause of the removal action. See Pridgen, 2022 MSPB
11, ¶¶ 22, 31.
The issue of the appellant’s security clearance is not before the Board.
Finally, the appellant’s allegations on review that the agency tampered with
her security clearance by providing information about the charged misconduct to
the Department of Defense Central Adjudication Facility and “appears to have
blocked” her transfer to another U.S. Navy position are outside the scope of the
present removal appeal. PFR File, Tab 1 at 15, Tab 4 at 7; see Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the16
Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation).
Accordingly, we deny the petition for review and affirm the initial decision
as modified by this Final Order.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.17
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file18
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 19
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 20
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Giardina__Patricia__E_AT-0752-20-0677-I-1_Final_Order.pdf | 2024-03-25 | PATRICIA ELLEN GIARDINA v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-20-0677-I-1, March 25, 2024 | AT-0752-20-0677-I-1 | NP |
1,953 | https://www.mspb.gov/decisions/nonprecedential/Parthemer_DebbiePH-0432-21-0327-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MS. DEBBIE PARTHEMER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0432-21-0327-I-2
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randolph Elliott , Camp Hill, Pennsylvania, for the appellant.
Nancy Anna Waldron , Huntsville, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her performance-based removal under 5 U.S.C. chapter 43. On petition
for review, the appellant argues that the administrative judge erred in concluding
that she failed to prove her due process and harmful error affirmative defense
claims. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Parthemer_DebbiePH-0432-21-0327-I-2_Final_Order.pdf | 2024-03-25 | MS. DEBBIE PARTHEMER v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0432-21-0327-I-2, March 25, 2024 | PH-0432-21-0327-I-2 | NP |
1,954 | https://www.mspb.gov/decisions/nonprecedential/Cledera_Robert__M_DA-0752-21-0013-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. CLEDERA,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-21-0013-I-3
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ariel Solomon , Esquire, Washington, D.C., for the appellant.
Zachary Bock , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision.2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The administrative judge found that the appellant failed to prove his affirmative
defenses of discrimination based on a perceived mental disability, reprisal for equal
employment opportunity activity, whistleblower reprisal, harmful procedural error, and
several due process violations. Cledera v. Department of Justice , MSPB Docket No.
DA-0752-21-0013-I-3, Appeal File, Tab 39, Initial Decision. Except for the due
BACKGROUND
¶2On September 10, 2020, the agency removed the appellant from his position
as a Legal Assistant at the Dallas Immigration Court, within the agency’s
Executive Office of Immigration Review (EOIR), based on charges of failure to
follow instructions (four specifications) and inappropriate conduct (one
specification). Cledera v. Department of Justice , MSPB Docket No. DA-0752-
21-0013-I-3, Appeal File (I-3 AF), Tab 12 at 21-25. The charges concerned the
appellant’s incessant demands that the Federal Protective Service (FPS) aid him
in investigating an incident on May 13, 2020, when he was allegedly almost hit
by two vehicles while crossing a crosswalk in front of the Earl Cabell Federal
Building (ECFB) where he worked. I-3 AF, Tab 11 at 6-7, Tab 12 at 22-23. In
his decision letter, the deciding official stated that the appellant’s continued
misconduct presented an increasingly disturbing pattern of disrespect for
authority and the health and safety of colleagues and occupants of the Federal
building. I-3 AF, Tab 12 at 23. He noted the appellant’s disciplinary history,
including a letter of reprimand for having attempted to bring a magazine clip
containing ammunition into the ECFB, and a 10-day suspension for his disregard
of COVID-19 precautions. I-3 AF, Tab 11 at 11-13, 19-22, Tab 12 at 23. He
concluded that, based on such, he found no potential for the appellant’s
rehabilitation and that removal was warranted. I-3 AF, Tab 12 at 23. The
appellant’s Board appeal followed, and the administrative judge issued an initial
decision in November 2022 sustaining the appellant’s removal. I-3 AF, Tab 39,
Initial Decision (ID).
¶3The sole issue raised by the appellant in his petition for review concerns his
claim of a due process violation based on an ex parte communication. Petition
for Review (PFR) File, Tab 5 at 5. On August 7, 2020, following the agency’s
process violation discussed herein, the appellant does not challenge the administrative
judge’s findings regarding his affirmative defenses. Petition for Review File, Tab 5.
Therefore, we see no reason to reexamine those claims, and we conclude that the
appellant failed to prove them.2
notice of proposed removal and placement of the appellant on administrative
leave but prior to the removal decision, the U.S. Marshals Service issued an Alert
Notice pertaining to the appellant. I-3 AF, Tab 11 at 8, Tab 12 at 470-74, Tab 31
at 40. The Alert Notice provided instructions for employees and visitors to
immediately contact the U.S. Marshals Service for the Northern District of Texas
if the appellant was seen in the courthouse, along with detailed information and a
photograph of the appellant. I-3 AF, Tab 31 at 40. It set forth as “reason for
caution” that the appellant was a “Civil Litigant who was fired on [July 30, 2020]
from the Executive Office of Immigration Review (Earl Cabell Federal Building)
after several disciplinary actions, including anti-social behavior related to
spreading COVID-19 and attempting to bring ammunition into the Federal
Building.” Id. It further stated that the appellant “appeared to suffer from mental
health issues including paranoia” and that the U.S. Marshals Service was
concerned that he might attempt to contact a U.S. District Judge. Id.
¶4Notably, the U.S. District Court for the Northern District of Texas is also
housed in the ECFB, upstairs from the Dallas Immigration Court. Hearing
Transcript – October 17, 2022 (HT-1) at 222 (testimony of the proposing
official); Hearing Transcript – October 18, 2022 (HT-2) at 18 (testimony of the
current FPS Inspector). On August 10, 2020, a Judicial Security Inspector with
the U.S. Marshals Service delivered the Alert Notice to the Dallas Immigration
Court via the proposing official and requested that she post it by its reception
window.3 I-3 AF, Tab 31 at 37. The Inspector explained that the Alert Notice
was issued upon the instruction of a U.S. District Judge who had dismissed a civil
lawsuit that the appellant had filed against the EOIR and had concerns regarding
his mental health. Id. The proposing official sent an email to the Assistant Chief
Immigration Judge, who was also the deciding official on the appellant’s
disciplinary action, relaying her conversation with the Inspector and attaching a
copy of the Alert Notice. Id. The deciding official then forwarded the proposing
3 The proposing official did not follow these instructions. I-3 AF, Tab 31 at 37. 3
official’s email to his supervisors and general counsel’s office. Id. at 36; HT-1
at 89, 98 (testimony of the deciding official). The deciding official also emailed
the U.S. Marshals Service Inspector to inform him that the appellant had not been
fired on July 30, 2020, as the Alert Notice had incorrectly stated. I-3 AF, Tab 31
at 39. The parties do not dispute that the agency did not provide the appellant
with notice of the issuance of the Alert Notice or the proposing official’s email to
the deciding official prior to the September 10, 2020 removal decision. PFR File,
Tab 5 at 5, Tab 7 at 7.
¶5In the initial decision, the administrative judge found that the Alert Notice
issued by the U.S. Marshals Service was a constitutionally permissible ex parte
communication. ID at 25-27. She reasoned that the deciding official testified
credibly and compellingly that he did not consider it in his decision to remove the
appellant because, as it was not part of the information provided in that context,
he understood that he was not allowed to. Id. She further found that the Alert
Notice was “unlikely to be particularly disquieting” under the circumstances of
this case. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6In his petition for review, the appellant argues that the administrative judge
improperly applied the law regarding due process violations. PFR File, Tab 5
at 4. He argues that the communication concerning the Alert Notice contained
new and material information and was thus constitutionally impermissible. Id.
at 5.
¶7In response to the appellant’s arguments on review, the agency agrees that
the Alert Notice contained new information. PFR File, Tab 7 at 8-9. However, it
argues that the information was not material for two reasons: first, the deciding
official testified that he did not consider it, and the administrative judge’s
crediting of that testimony is entitled to deference; and second, the Alert Notice
did not create undue pressure upon the deciding official because the facts and4
factors noticed to the appellant in the notice of proposed removal were sufficient
to support his removal. Id. at 8-10. The agency cautions that, if the Board were
to agree with the appellant, it would open the door for any ex parte
communication—regardless of materiality or whether the deciding official
considered the information—to be a basis for reversal of an agency’s adverse
action. Id. at 10.
¶8The U.S. Court of Appeals for the Federal Circuit has rejected similar
arguments by agencies in Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368 (Fed. Cir. 1999) and its progeny. Stone, 179 F.3d at 1373,
1376-77. Our decision that the ex parte communications in this case violated due
process guarantees does not expand this existing precedent. In Stone, the Federal
Circuit held that “[t]he introduction of new and material information by means of
ex parte communications to the deciding official undermines the public
employee’s constitutional due process guarantee of notice (both of the charges
and of the employer’s evidence) and the opportunity to respond.” Id. at 1376.
Stone provided a three-factor test to assess whether a particular ex parte
communication violates due process: (1) “whether the ex parte communication
merely introduces ‘cumulative’ information or new information”; (2) “whether
the employee knew of the error and had a chance to respond to it”; and
(3) “whether the ex parte communications were of the type likely to result in
undue pressure upon the deciding official to rule in a particular manner.” Boss v.
Department of Homeland Security , 908 F.3d 1278, 1281 (Fed. Cir. 2018) (quoting
Stone, 179 F.3d at 1377). The inquiry is “whether the ex parte communication is
so substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Hornseth v. Department of the Navy , 916 F.3d 1369, 1375 (Fed. Cir. 2019)
(quoting Stone, 179 F.3d at 1376-77).
¶9In Ward v. U.S. Postal Service , 634 F.3d 1274 (Fed. Cir. 2011), the Federal
Circuit held that there is no constitutionally relevant distinction between ex parte5
communications relating to the underlying charge and those relating to the
penalty. Ward, 634 F.3d at 1280. It held that if the Board finds that the ex parte
communications introduced new and material information under the factors set
forth in Stone, the employee must be afforded a constitutionally correct removal
procedure. Id. Furthermore, the Federal Circuit has made clear that the test
under Stone, while requiring consideration of the facts and circumstances of each
case, is “an objective one.” Rueter v. Department of Commerce , 63 F.4th 1357,
1365 (Fed. Cir. 2023); Hornseth, 916 F.3d at 1375. Particularly, regarding its
third factor, Stone directs the inquiry as to the “type of communication” involved
and whether that type is “likely” to cause prejudice. Stone, 179 F.3d at 1377. It
does not require that the ex parte communication actually resulted in undue
pressure upon the deciding official. See Johnson v. Department of the Air Force ,
50 F.4th 110, 116 (Fed. Cir. 2022) (stating that “a deciding officer may violate an
employee’s due process rights even if the deciding officer states that he ‘would
have concluded that the employee should be removed whether or not he had
received the ex parte communications’”) (citing Ward, 634 F.3d at 1280). Thus,
we conclude that the credible testimony of a deciding official establishing the
absence of subjective influence does not preclude a due process violation. See id.
¶10Accordingly, we find that the administrative judge erred by assigning
significant weight to the deciding official’s testimony that he did not consider the
ex parte information. ID at 25-27. We will consider the facts and circumstances
of this case under the objective test set forth in Stone.
¶11It is apparent, and the parties do not dispute, that the email containing the
Alert Notice issued by the U.S. Marshals Service introduced new information to
the deciding official. I-3 AF, Tab 31 at 36-41; PFR File, Tab 5 at 5, Tab 7 at 7-8.
The parties also do not appear to dispute that the appellant, who was on
administrative leave at the time of the issuance of the Alert Notice, was not aware
of the ex parte communication and did not have a chance to respond to it. PFR6
File, Tab 5 at 5, Tab 7 at 7-8; HT-2 at 70-73 (testimony of the appellant). Thus,
we find that the first two Stone factors weigh in favor of a due process violation.
¶12We find that the third Stone factor also weighs in favor of concluding that
the ex parte communications introduced new and material information and thus
violated due process. See Ward, 634 F.2d at 1279-80; Stone, 179 F.3d at 1377.
The administrative judge reasoned that the Alert Notice was unlikely to be
particularly disquieting because the only new information it contained was that
the appellant appeared to suffer from mental health issues including paranoia and
that a U.S. District Judge was concerned that he may attempt to contact her. ID
at 27; I-3 AF, Tab 31 at 40. She explained that the Alert Notice described the
appellant’s prior misconduct, for which he had been previously disciplined, rather
than any new behavior. ID at 27.
¶13We disagree with this reasoning. First, it fails to recognize the additional
information concerning the Alert Notice from the Judicial Security Inspector with
the U.S. Marshals Service. I-3 AF, Tab 31 at 37. The deciding official was
informed that a U.S. District Judge, a few days earlier, had dismissed a civil
lawsuit filed by the appellant against the agency. Id. The U.S. District Judge had
instructed that the alert be issued because she had concerns regarding his mental
health. Id. Thus, we can reasonably surmise that the appellant exhibited some
type of disconcerting behavior or made some disconcerting statements in
connection with his district court case. Id. The deciding official was also
informed of the Inspector’s recommendation that the Dallas Immigration Court,
located downstairs from the district courthouse, post the Alert Notice in its
reception window. Id. at 37.
¶14This new information is of the type likely to result in undue pressure upon
the deciding official. As the appellant highlights on review, the ex parte
information invokes the same major concerns expressly considered by the
deciding official in his penalty analysis. PFR File, Tab 5 at 7-14. The deciding
official stated in the decision letter that the misconduct set forth in the proposal7
notice presented an increasingly disturbing pattern and diverted the attention of
security officials responsible for protecting the Federal building and its
employees and visitors. I-3 AF, Tab 12 at 23. He testified at the hearing that he
was embarrassed by the appellant’s inappropriate behavior during a meeting with
a FPS Inspector, i.e., the misconduct underlying the agency’s inappropriate
conduct charge, because it put the agency in an unfavorable light. HT-1 at 24.
Undoubtedly, this new information—that the appellant’s disconcerting behavior
has now drawn the attention of a U.S. District Judge and the U.S. Marshals
Service—is highly relevant to the same penalty factors considered to be
particularly aggravating in this case.
¶15Furthermore, the Alert Notice is of the type likely to be particularly
influential under the circumstances of this case, in which the district courthouse
is housed in the same Federal building (the ECFB) as the appellant’s work
location. The situation creates obvious implications for the agency pertaining to
the appellant’s continued employment. The Alert Notice broadcasts to employees
and visitors that the appellant demonstrated anti-social behavior related to
spreading COVID-19, attempted to bring ammunition into the Federal Building,
and exhibits paranoia. I-3 AF, Tab 31 at 40. It instructs all employees and
visitors of the courthouse to contact the U.S. Marshals Service if they see the
appellant in the courthouse, and it states that he must be “closely monitored in
courts spaces.” Id. The FPS Inspector currently assigned to the ECFB testified
that, even though this Alert Notice does not expressly prohibit the appellant from
entering the ECFB, he exchanges information with the U.S. Marshals Service
daily and would take its Alert Notices seriously. HT-2 at 32-36. Furthermore,
the deciding official testified that he was not at liberty to ignore the Alert Notice,
and the fact that he sent it to his general counsel’s office and his supervisor
demonstrates its import.4 HT-1 at 89-91, 98; I-3 AF, Tab 31 at 36. Thus, we find
4 The deciding official testified that he did not consider whether he had the ability to
bring the appellant back to work notwithstanding the Alert Notice, because the
appellant was already on administrative leave, and he had determined based on the8
that the Alert Notice is the type of information likely to influence a decision
about whether to remove the appellant or, alternatively, institute some lesser
penalty that might require the appellant’s return to the workplace.
¶16Based upon the above, we conclude that the ex parte communication was so
substantial and so likely to cause prejudice that it rose to the level of a due
process violation. In making this finding, we reject the agency’s argument that
the ex parte communications were permissible because the facts and factors in the
notice of proposed removal issued to the appellant were sufficient to support his
removal. PFR File, Tab 7 at 10. The Federal Circuit has clearly established that
a due process violation is not subject to the harmless error test. See Ward,
634 F.3d at 1280; see also Johnson , 50 F.4th at 115-16; Boss, 908 F.3d at 1282.
The prohibition on applying the harmless error test is directed to foreclosing the
argument that an employee would have been removed from his position on the
merits even without the procedural defect in his firing. Boss, 908 F.3d at 1282.
Thus, per the Federal Circuit’s instruction, we will not “fall into [the] trap” of
analyzing whether the appellant would have been removed even without the ex
parte information. Id.
¶17Accordingly, we find that the administrative judge erred in finding no
violation of the appellant’s right to due process. We, therefore, reverse the initial
decision sustaining the appellant’s removal.
ORDER
¶18We ORDER the agency to cancel the appellant’s removal and restore the
appellant effective September 10, 2020. 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.
charged misconduct that no alternative penalties were appropriate. HT-1 at 93-94
(testimony of the deciding official). We note again that “a deciding official may violate
an employee’s due process rights even if he states that ‘he would have concluded that
the employee should be removed whether or not he had received the ex parte
communications.’” Johnson, 50 F.4th at 116 (quoting Ward, 634 F.3d at 1280).9
¶19We 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.
¶20We 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).
¶21No 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).
¶22For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.10
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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.11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you12
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 14
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
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. | Cledera_Robert__M_DA-0752-21-0013-I-3__Final_Order.pdf | 2024-03-25 | ROBERT M. CLEDERA v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-21-0013-I-3, March 25, 2024 | DA-0752-21-0013-I-3 | NP |
1,955 | https://www.mspb.gov/decisions/nonprecedential/Spotted_Wood_VernaDE-0351-18-0378-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNA SPOTTED WOOD,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DE-0351-18-0378-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Verna Spotted Wood , Sergeant Bluff, Iowa, pro se.
Carol Liang , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as withdrawn. Generally, we grant 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
Effective July 27, 2018, the agency separated the appellant from service
due to a reduction in force (RIF). Initial Appeal File (IAF), Tab 1 at 6. On
August 6, 2018, the appellant filed a Board appeal challenging her separation and
she requested a hearing. Id. at 2. On her Board appeal form, the appellant
alleged that the agency committed a prohibited personnel practice (PPP) by its
“refusal to compete for openings.” Id. at 3.
The administrative judge issued an order directing the appellant to identify
which aspects of the RIF she was challenging and what PPP the agency allegedly
committed. IAF, Tab 4. The appellant did not respond. The administrative judge
then issued an order informing the appellant that, if she wanted to withdraw her
appeal, she should file a submission clearly stating so as soon as possible. IAF,
Tab 11. The administrative judge explained that, if the appellant’s withdrawal
appeared to be voluntary, he would dismiss her appeal as withdrawn with
prejudice. Id.
The appellant then filed a submission withdrawing her Board appeal. IAF,
Tab 12. The administrative judge found that the appellant’s withdrawal was2
knowing and voluntary, and he issued an initial decision dated August 24, 2018,
that dismissed the appeal as withdrawn. IAF, Tab 13, Initial Decision (ID).
In her timely petition for review, the appellant asserts that she has evidence
pertaining to her PPP claim that was not available during the proceedings below.
Petition for Review (PFR) File, Tab 1 at 3-4. With her petition, the appellant
submits an August 31, 2018 letter from the Office of Special Counsel (OSC)
notifying her of its decision to terminate its inquiry into her complaint2 alleging
that agency officials discriminated against her based on her age in conducting the
RIF. Id. at 6-7. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
ANALYSIS
The administrative judge properly dismissed the appeal as withdrawn,
An appellant’s withdrawal of an appeal is an act of finality that has the
effect of removing the matter from the Board’s jurisdiction. Lincoln v. U.S.
Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010). A voluntary withdrawal must be
clear, decisive, and unequivocal. Id. The appellant made such a withdrawal,
explicitly stating in writing her intent to withdraw her appeal. IAF, Tab 12. We
therefore find that the administrative judge did not err in dismissing the appeal as
withdrawn. Lincoln, 113 M.S.P.R. 486, ¶¶ 7-8.
The appellant has not shown unusual circumstances warranting the reinstatement
of her appeal.
Absent unusual circumstances, such as misinformation or new and material
evidence, the Board will not reinstate an appeal once it has been withdrawn.
Lincoln, 113 M.S.P.R. 486, ¶ 9. The appellant has not alleged that she withdrew
her appeal based on misinformation. See generally PFR File, Tab 1.
The evidence the appellant submits with her petition for review, OSC’s
August 31, 2018 closeout letter, PFR File, Tab 1 at 6-7, is new because it was
2 In her petition for review, the appellant indicates that she filed her OSC complaint
while her appeal was pending before the administrative judge. PFR File, Tab 1 at 3.3
unavailable before the record closed below. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). It is not material, however, because the appellant
has made no showing that OSC’s decision to terminate its inquiry into her age
discrimination claim would warrant an outcome different from that of the initial
decision. 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). Although the appellant could have raised her
age discrimination claim as an affirmative defense in an otherwise appealable
action appeal, she chose to withdraw that appeal and pursue her discrimination
claim with OSC instead. OSC’s decision to terminate its inquiry into that claim
has no bearing on the voluntariness of her withdrawal. Therefore, the
circumstances in this appeal do not provide a basis on which to reinstate 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.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 6
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Spotted_Wood_VernaDE-0351-18-0378-I-1_Final_Order.pdf | 2024-03-25 | VERNA SPOTTED WOOD v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-0351-18-0378-I-1, March 25, 2024 | DE-0351-18-0378-I-1 | NP |
1,956 | https://www.mspb.gov/decisions/nonprecedential/Fushikoshi_Anthony_J_SF-0752-22-0115-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. FUSHIKOSHI,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-22-0115-I-1
DATE: March 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
nthony J. Fushikoshi , Wailuku, Hawaii, pro se.
Bradly Siskind , Esquire, Riverdale, Maryland, for the agency.
Patricia McNamee , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant disagrees with the
administrative judge’s determinations that the agency proved its charges and that
its penalty was within the bounds of reasonableness. He also argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge abused her discretion by impeding his questioning of
witnesses and in sanctioning him. Finally, he raises new affirmative defenses.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that the administrative judge abused her
discretion in imposing sanctions. Petition for Review (PFR) File, Tab 1 at 3. On
April 29, 2022, the administrative judge issued an order striking the appellant’s
affirmative defenses as a sanction for his failure to fully respond to the agency’s
written discovery requests and his failure to respond to her affirmative defense
order issued January 6, 2022. Initial Appeal File, Tab 42 at 3. The
administrative judge provided the parties with the opportunity to object to her
order, but they did not. Id. at 4. The appellant’s failure to object to this order
despite the opportunity to do so precludes him from raising this issue on review.
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 14 (2016) (declining to
adjudicate a claim that an administrative judge did not consider below because2
the appellant failed to object to an administrative judge’s orders limiting the
scope of his claims despite an opportunity to do so).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 To the extent that the appellant raises new affirmative defenses on review, such as
arguing his removal was “double jeopardy” or that the agency took too long to issue its
proposed removal or removal decision, we decline to consider them. PFR File, Tab 1
at 5, 8. Such claims are barred by the administrative judge’s imposition of sanctions.
In any event, the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such showing here.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Fushikoshi_Anthony_J_SF-0752-22-0115-I-1_Final_Order.pdf | 2024-03-25 | ANTHONY J. FUSHIKOSHI v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-22-0115-I-1, March 25, 2024 | SF-0752-22-0115-I-1 | NP |
1,957 | https://www.mspb.gov/decisions/nonprecedential/Lane_Leatrice_F_DC-0752-18-0760-I-3_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEATRICE FORD LANE,
Appellant,
v.
COURT SERVICES AND OFFENDER
SUPERVISION AGENCY FOR DC,
Agency.DOCKET NUMBER
DC-0752-18-0760-I-3
DATE: March 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sheila S Iverson , Mount Rainier, Maryland, for the appellant.
Julia Martin and Marvelle Butler , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely refiled. For the reasons discussed
below, we GRANT the appellant’s petition for review, REVERSE the initial
decision, WAIVE the refiling deadline, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was a GL-07 Offender Processing Assistant for the agency.
Lane v. Court Services and Offender Supervision Agency for D.C. , MSPB Docket
No. DC-0752-18-0760-I-1, Initial Appeal File (IAF), Tab 5 at 79. Effective
July 18, 2018, the agency removed her under 5 U.S.C. chapter 75. Id. at 79-88,
92-99. On August 17, 2018, the appellant filed a timely Board appeal of her
removal. IAF, Tab 1. Prior to the close of the record, the appellant submitted
medical documentation, indicating that she was suffering from numerous
psychological problems and had to undergo surgery for a brain aneurysm. IAF,
Tab 13. The administrative judge contacted the appellant, who agreed to a
dismissal without prejudice. IAF, Tab 15 at 2. The agency had no objection. Id.
at 2 n.*. Accordingly, on November 16, 2018, the administrative judge issued an
initial decision dismissing the appeal without prejudice to refiling within
120 days. Id. at 1-3.
¶3On February 20, 2019, the appellant sent the administrative judge an
ambiguous email about her case. Lane v. Court Services and Offender
Supervision Agency for D.C. , MSPB Docket No. DC-0752-18-0760-I-2, Appeal
File (I-2 AF), Tabs 1-2. A Board paralegal contacted the appellant, who
confirmed that she intended to refile her appeal. I-2 AF, Tab 2 at 1 n.1*.
However, the appellant requested that her appeal be dismissed without prejudice
for an additional 120 days, and on February 27, 2019, the administrative judge
granted the appellant’s motion. I-2 AF, Tab 3; Lane v. Court Services and
Offender Supervision Agency for D.C. , MSPB Docket No. DC-0752-18-0760-I-3,
Appeal File (I-3 AF), Tab 2 at 2. The new refiling deadline was June 27, 2019.
¶4On August 9, 2019, the appellant sent the administrative judge another
email, stating as follows:2
My apologies for missing deadline to request reopening of my
appeal in the above matter.
I have been recovering from brain surgery to remove an
aneurysm, while, battling depression and anxiety. I was recently
hospitalized and released from [the] hospital on Tuesday, August 6[,]
2019. I am requesting reopening appeal in the above matter.
I-3 AF, Tab 1. The administrative judge issued a show cause order, informing the
appellant that her refiled appeal was untimely. He notified her of the standard for
showing good cause for an untimely refiling and directed her to submit evidence
and argument on the issue. I-3 AF, Tab 2 at 1-3. After both parties responded to
the order, I-3 AF, Tabs 3, 5, the administrative judge dismissed the appeal as
untimely refiled without good cause shown for the delay, I-3 AF, Tab 6, Initial
Decision (ID). He considered various factors weighing both in favor of and
against waiving the refiling deadline, and he determined that dismissal was
appropriate under the totality of the circumstances. ID at 7-18.
¶5The appellant has filed a petition for review, disputing the administrative
judge’s good cause analysis and several of his underlying findings of fact.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.
ANALYSIS
¶6As stated above, the refiling deadline was June 27, 2019, and the appellant
did not refile her appeal until August 9, 2019, forty-four days late. Supra ¶¶ 3-4.
These facts are undisputed. Therefore, the only issue is whether the refiling
deadline should be waived. The Board has held that dismissals without prejudice
should not become a trap to deny an appellant the opportunity to have her case
decided on the merits. Jaramillo v. Department of the Air Force , 106 M.S.P.R.
244, ¶ 6 (2007). The Board has also found that an appellant should not be denied
the opportunity to have her appeal heard on the merits when her intention to refile
a Board appeal has been clear throughout the proceedings and the appeal was
initially timely filed. Shenwick v. Department of State , 90 M.S.P.R. 192, ¶ 93
(2001). Accordingly, it has identified specific standards applicable to
determining whether good cause exists for excusing an untimely refiled appeal of
a matter previously dismissed without prejudice. These include the following: the
appellant’s pro se status; the timeliness of the initial appeal; the appellant’s
demonstrated intent throughout the proceedings to refile the appeal; the length of
the delay in refiling; confusion surrounding and arbitrariness of the refiling
deadline; the number of prior dismissals without prejudice; the agency’s failure to
object to the dismissal without prejudice; and the lack of prejudice to the agency
in allowing the refiled appeal. Sherman v. U.S. Postal Service , 118 M.S.P.R. 265,
¶ 9 (2012).
¶7In this case, the administrative judge found that the appellant was acting pro
se for the majority of the proceedings, but that this factor was not particularly
compelling “given the explicit and unambiguous clarity of notice” in his oral and
written refiling instructions. ID at 8. The administrative judge considered the
appellant’s contention that she believed that the 120-day refiling period began on
the finality date of the initial decision, but he declined to credit this explanation
because it was inconsistent with the plain language of the refiling instructions and
she had previously demonstrated her ability to refile on time. ID at 9. The
administrative judge considered that there were only two dismissals without
prejudice in this case and that the appellant demonstrated her intent to pursue her
appeal, but he found that these factors weighed only minimally in her favor, given
her repeated failure to follow his orders in the initial appeal phase.2 ID at 9-10.
The administrative judge further considered that the length of the filing delay
weighed against waiving the deadline and that the agency would suffer at least
minimal prejudice if the filing deadline were waived. ID at 10-11. He considered
that the agency had consented to the dismissals, but he found that this fact was
not particularly significant under the circumstances of the case. ID at 10.
2 The appellant’s failure to follow the administrative judge’s orders resulted in an order
to show cause why the administrative judge should not impose sanctions, including
dismissal. IAF, Tab 10.4
Finally, the administrative judge considered the appellant’s explanation for the
filing delay, i.e., that she was suffering from health conditions that interfered
with the timely refiling. However, he found that the appellant failed to provide
sufficient medical documentation to substantiate her claims, and that she failed to
establish a causal connection between these conditions and her ability to refile on
time. ID at 11-12.
¶8Considering the record as a whole, we find it appropriate to waive the filing
deadline. The appellant filed her initial appeal on time, and notwithstanding the
two dismissals without prejudice, at no point in these proceedings has the
appellant indicated an intention to abandon her appeal. As for the reason that the
appellant missed the filing deadline, we agree with the administrative judge that
she did not submit medical evidence of incapacitation during the relevant time
period. ID at 11-12. However, the record is sufficient to show that the appellant
was suffering from health conditions that required intensive treatment and likely
interfered with her ability to conduct her business, at least to some degree. I-3
AF, Tab 3. We also agree with the administrative judge that the dismissal
without prejudice set forth a clear deadline for refiling, and despite the
appellant’s arguments on review, it does not appear that she missed that deadline
because of a miscalculation.3 PFR File, Tab 1 at 11-14; I-2 AF, Tab 3 at 3.
Nevertheless, we find that the appellant’s pro se status contributed to her
untimely refiling to the extent that there was nobody to help her monitor the
deadline. In any event, regardless of whether the appellant exercised due
diligence in refiling her appeal, the Board has occasionally dispensed with the
due diligence requirement for untimely refilings when, as here, other factors
favoring a waiver are present. See, e.g., Jaramillo v. Department of the Air
Force, 106 M.S.P.R. 244, ¶¶ 5-6, 8 (2007); Hodges v. Office of Personnel
3 In particular, the appellant has not explained exactly what mistake she made in
calculating the deadline, and she has not identified the date that she believed the
deadline to be.5
Management, 101 M.S.P.R. 212, ¶¶ 10-11 (2006); Shenwick v. Department of
State, 90 M.S.P.R. 192, ¶¶ 8, 11 (2001).
¶9Finally, although a 44-day filing delay is significant, we disagree with the
administrative judge that the agency would be prejudiced by a waiver of the
refiling deadline. ID at 10-11. The administrative judge found that the agency
would be prejudiced by a waiver of the deadline because the “10-month delay on
processing time will undoubtedly create some additional work for the agency as it
relates to preparing and updating its closing submissions,” and the agency would
suffer an inherent prejudice if he failed to enforce his own orders and the Board’s
regulations requiring a demonstration of good cause to support a waiver of filing
deadlines. Id. However, the creation of additional litigation work for agency
counsel is not the same thing as prejudice to the agency’s substantive rights, i.e.,
prejudice affecting its ability to prevail on the merits. Moreover, the additional
work of preparing and updating submissions would have been required even if the
appellant had refiled on time. We also do not think that an administrative judge’s
“failure to enforce” a refiling deadline is inherently prejudicial. Otherwise,
prejudice would be inherent in any deadline waiver.
¶10Notwithstanding our decision on this petition for review, we agree with the
administrative judge that the appellant’s untimely refiling is not the first time she
has failed to comply with his orders. ID at 9; IAF, Tab 10. We remind the
appellant that she is required to comply with the orders of the administrative
judge, and that her failure to do so in the future may result in sanctions, up to and
including dismissal of her appeal. See 5 C.F.R. § 1201.43. A party to Board
proceedings ignores the administrative judge’s orders at her own peril. See White
v. Social Security Administration , 76 M.S.P.R. 303, 307 (1997), aff’d, 152 F.3d
948 (Fed. Cir. 1998).6
ORDER
¶11For 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.7 | Lane_Leatrice_F_DC-0752-18-0760-I-3_Remand_Order.pdf | 2024-03-22 | LEATRICE FORD LANE v. COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR DC, MSPB Docket No. DC-0752-18-0760-I-3, March 22, 2024 | DC-0752-18-0760-I-3 | NP |
1,958 | https://www.mspb.gov/decisions/nonprecedential/Smith_ThomasDC-3443-22-0616-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS SMITH,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-3443-22-0616-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid A. Branch , Esquire, Washington, D.C., for the appellant.
Ashley Geisendorfer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the agency’s decision to rescind its
offer of employment. On petition for review, the appellant submits alleged new
evidence in support of arguments he raised below. Generally, we grant 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).
We agree with the administrative judge that the appellant did not make a
nonfrivolous allegation of Board jurisdiction because there is no indication that
he was subject to anything other than a nonselection for a specific position.
Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 3-4.2 With his petition
for review, the appellant has submitted what appears to be an excerpt from a
statement the deciding official gave to an investigator in an equal employment
opportunity investigation. Petition for Review (PFR) File, Tab 1 at 4-5. In it, the
deciding official states that “he was informed that the Counselee did not pass a
suitability test and was not recommended for hire.” Id. at 5. The Board generally
will not consider evidence submitted for the first time on review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). Moreover, the Board generally will not grant a petition
2 The administrative judge also found that the appellant failed to establish Board
jurisdiction based on a preponderance of the evidence standard. ID at 4. We clarify
that when, as here, the appellant has requested a hearing, he is entitled to a
jurisdictional hearing if he makes a nonfrivolous allegation that the Board has
jurisdiction. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). Because
we agree with the administrative judge that the appellant failed to nonfrivolously allege
Board jurisdiction, the appeal was properly dismissed without a hearing, and any error
in the initial decision regarding the standard was harmless. 2
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. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d).
Here, the appellant has not addressed why he was unable to submit the statement
below, other than conclusively labeling it “new evidence.” PFR File, Tab 1 at 4.
Further, we find that this evidence is not of sufficient weight to warrant
an outcome different from that of the initial decision. The evidence is duplicative
of evidence already in the record that the agency rescinded its tentative offer due
to a “Suitability Program review.” IAF, Tab 10 at 16; PFR File, Tab 1.
Moreover, as explained in the initial decision, only “suitability actions” may be
appealed to the Board under 5 C.F.R. § 731.501(a). ID at 3-4. Cancellation of
eligibility or a nonselection for a specific position is not a “suitability action”
even if it is based on the criteria for making a suitability determination under 5
C.F.R. § 731.202. ID at 4 n.2 (citing 5 C.F.R. § 731.203(b)). Thus, we affirm the
administrative judge’s finding that the Board lacks jurisdiction over this 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
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 | Smith_ThomasDC-3443-22-0616-I-1_Final_Order.pdf | 2024-03-22 | THOMAS SMITH v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-3443-22-0616-I-1, March 22, 2024 | DC-3443-22-0616-I-1 | NP |
1,959 | https://www.mspb.gov/decisions/nonprecedential/McKenzie_BenjaminDC-1221-16-0837-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCKENZIE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-16-0837-W-2
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin McKenzie , Washington, D.C., pro se.
Lorna Jacqueline Jerome , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action on his reprisal claims 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that 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 administrative
judge’s determination that the appellant failed to prove a prima facie case of
reprisal for whistleblowing or other protected activity. We VACATE the
administrative judge’s alternative finding that the agency established by clear and
convincing evidence that it would have taken the same action against the
appellant absent any protected activity.
BACKGROUND
The appellant timely filed an IRA appeal, which the administrative judge
dismissed without prejudice subject to refiling by a date certain in order to allow
him to address a health condition and obtain legal representation.2 McKenzie v.
2 In September 2014, the appellant filed an appeal challenging his removal pursuant to
5 U.S.C. chapter 75, which the administrative judge dismissed as untimely filed, and
raising a Veterans Employment Opportunities Act of 1998 claim, which the
administrative judge dismissed for lack of jurisdiction. McKenzie v. Department of
Homeland Security , MSPB Docket No. DC -0752-14-1121-I-1, Initial Decision (Feb. 24,
2015). That decision became the final decision of the Board when neither party filed a
timely petition for review. The administrative judge dismissed for lack of jurisdiction a
separately docketed Uniformed Services Employment and Reemployment Rights Act of
1994 appeal, and the Board denied the appellant’s petition for review. McKenzie v.
Department of Homeland Security , MSPB Docket No. DC -4324-15-0451-I-1, Final
Order (Mar. 25, 2016). Because his 2014 removal appeal was dismissed as untimely
filed, we find that it did not constitute a binding election of remedies pursuant to
5 U.S.C. § 7121(g) that would bar this subsequent IRA appeal regarding his reprisal
claims. See 5 U.S.C. § 7121(g)(4)(A) (specifying that the election to proceed with a
Board appeal must be “timely filed”); Brundin v. Smithsonian Institution , 75 M.S.P.R.
332, 336 (1997). 2
Department of Homeland Security , MSPB Docket No. DC-1221-16-0837-W-1,
Appeal File, Tab 1, Tab 12, Initial Decision (Sept. 30, 2016). The appellant
subsequently timely refiled his IRA appeal. McKenzie v. Department of
Homeland Security , MSPB Docket No. DC-1221-16-0837-W-2, Appeal File
(W-2 AF), Tab 1. After holding the requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action.
W-2 AF, Tab 30, Initial Decision (ID) at 1, 9. The administrative judge found
that the appellant failed to prove (1) that he had made a protected disclosure or
engaged in protected activity and (2) that his allegedly protected disclosures or
activity were a contributing factor in his removal. ID at 6-7. Finally, the
administrative judge found that, even if the appellant had met his burden of proof
regarding his alleged disclosures or activity, the agency had shown by clear and
convincing evidence that it would have removed him absent any such disclosures
or activity. ID at 8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant states his belief that the administrative judge’s
rulings during the proceedings below and findings in the initial decision were not
consistent with unspecified required procedures or involved abuse of discretion.
PFR File, Tab 3 at 4-5. For instance, he asserts that “it appears” that the
administrative judge engaged in ex parte verbal conversations with the agency
representative despite purportedly advising the parties that she would only engage
in written conversations. Id. An ex parte communication is an oral or written
communication between a decision-making official of the Board and an interested
party to a proceeding, when that communication is made without providing the
other parties to the appeal with a chance to participate. 5 C.F.R. § 1201.101.
Administrative judges are prohibited from engaging in ex parte conversations
regarding the merits of an appeal. 5 C.F.R. § 1201.102. Here, the appellant3
provided no evidence or argument to support his claim that the agency
representative may have had ex parte conversations with the administrative judge.
PFR File, Tab 3 at 4-5. We find that the record is devoid of any evidence to
support the appellant’s bare assertion of improper ex parte communications by the
administrative judge.
The appellant contends that, although he “asked for [d]iscovery,” the
administrative judge ignored his written request and issued subsequent case
processing orders without answering his questions regarding the discovery
process. Id. He asserts that the administrative judge’s prejudicial errors “allowed
no witness to rebut the overwhelming documentary and testimonial evidence
provided.” Id. Prior to the deadline for initiating discovery, the appellant filed a
request for an “extension of time for the parties to exhaust [settlement]
discussions, and for [him] to obtain further guidance on the [d]iscovery process.”
W-2 AF, Tab 3 at 2, Tab 9 at 4. The administrative judge issued no ruling on this
motion, and the record contains no evidence that the appellant served any timely
requests for discovery on the agency. Approximately 3 months after the deadline
to initiate discovery, and 4 days prior to the deadline set forth in the hearing order
for submitting prehearing submissions including all proposed exhibits and a
summary of expected witness testimony, the appellant filed a request to initiate
discovery within 30 days of the filing of his request. W -2 AF, Tab 10 at 1-2,
Tab 15 at 4. He attached to his motion email correspondence with the agency
representative stating that the agency would not respond to his untimely
discovery requests. W-2 AF, Tab 15 at 5-6. The administrative judge denied the
appellant’s motion to initiate discovery, finding that the appellant’s failure to
timely initiate discovery did not constitute good cause for postponing the
proceedings. W-2 AF, Tab 18.
During the prehearing conference, the administrative judge approved 3 of
the appellant’s proposed witnesses, including the proposing and deciding officials
in the removal action, but denied over 25 other witnesses, for which the appellant4
proffered no testimony or relevance. W-2 AF, Tab 21 at 4-5, Tab 19 at 5-9. The
administrative judge instructed the appellant that he could provide additional
information regarding the relevance of his remaining proposed witnesses. W-2
AF, Tab 21 at 4-5. The appellant resubmitted the names of four individuals
without providing meaningful information as to their testimony or its relevance,
and the administrative judge issued a subsequent ruling denying the appellant’s
additional proposed witnesses. W-2 AF, Tab 26 at 1-2.
The appellant’s challenges to the administrative judge’s discovery and
evidentiary rulings are unpersuasive. An administrative judge has broad
discretion in ruling on discovery matters, and, absent an abuse of discretion, the
Board will not find reversible error in such rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 15 (2013); 5 C.F.R. § 1201.41(b)(4). To the extent
that the administrative judge erred in not ruling on the appellant’s initial request
for a general extension of time, the appellant has provided no explanation why he
did not serve the agency with any discovery requests prior to the deadline set
forth in the acknowledgment order, or why he waited until 3 months after the
deadline to serve his initial requests. W-2 AF, Tab 3 at 2, Tab 15 at 4-6; see
5 C.F.R. § 1201.73(d)(1).
The general discovery requests that the appellant untimely served on the
agency included access to his agency hard drive, the physical items that were left
in his cubicle following his departure, and all of his supervisor’s “written
personnel actions against” him. W-2 AF, Tab 15 at 6. He fails to identify any
specific items or information that he was unable to obtain in discovery, or how
those items would have enabled him to meet his burden of proof of establishing a
prima facie case of whistleblower retaliation. See 5 U.S.C. § 1221(e)(1); Webb v.
Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015) (stating that the
appellant must establish a prima facie case of whistleblower retaliation by5
proving by preponderant evidence3 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 that the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A)).4 Thus, the appellant
has failed to show how any error constituted an abuse of discretion because he
has not shown how the information requested was material. See Vores v.
Department of the Army , 109 M.S.P.R. 191, ¶¶ 14-15 (2008) (finding that the
appellant failed to show that the administrative judge abused his discretion by not
extending the discovery period when the appellant failed to show how
information could have been obtained would have affected the administrative
judge’s finding that the Board lacked jurisdiction over the appeal), aff’d,
324 F. App’x 883 (Fed. Cir. 2009). Accordingly, we find no abuse of discretion
regarding the administrative judge’s failure to rule on the appellant’s initial
request or denying the appellant’s request to initiate discovery 4 days prior to the
deadline for prehearing submissions.
An administrative judge has wide discretion to control the proceedings,
including the authority to exclude testimony and evidence she believes would be
irrelevant or immaterial. Sanders v. Social Security Administration , 114 M.S.P.R.
487, ¶ 10 (2010). The Board has found that, to obtain reversal of an initial
decision because the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that the administrative judge
disallowed a relevant witness or evidence that could have affected the outcome.
3 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).
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
of the U.S. Code. Our decision to affirm the initial decision denying the appellant’s
request for corrective action would be the same under both pre- and post-NDAA law.6
Id. In contrast to the appellant’s statement on review that the administrative
judge “allowed no witness to rebut” the agency’s testimony and evidence, the
administrative judge approved three witnesses for the appellant. PFR File, Tab 1
at 5; W-2 AF, Tab 21 at 4. The appellant fails to articulate any reason why the
testimony of any of the proposed witnesses the administrative judge denied could
have affected the outcome of the appeal. PFR File, Tab 1 at 4-5. Moreover, the
administrative judge provided the appellant with the opportunity to file additional
information regarding any relevant testimony his denied witnesses would present
at the hearing, and the appellant failed to provide sufficient meaningful
information in his subsequent filing. W-2 AF, Tab 21 at 4-5, Tab 22 at 4-5.
Finally, the appellant’s petition for review contains an unexplained
reference to a “5 C.F.R. part 1207 allegation of discrimination in the adjudication
of a Board case.” PFR File, Tab 3 at 4-5. 5 C.F.R. § 1207.170(b) sets forth
procedures for a party who believes that he has been subjected to discrimination
on the basis of disability in the adjudication of his Board appeal. If the
administrative judge to whom the case was assigned has issued an initial decision
by the time the party learns of the alleged discrimination, the party may raise the
allegation of discrimination in a petition for review. See 5 C.F.R. § 1201.170(b)
(4). The petition for review must be clearly marked “5 CFR part 1207 allegation
of discrimination in the adjudication of a Board case.” To the extent that the
appellant raises an allegation that the administrative judge discriminated against
him on the basis of disability in the proceedings below, he has provided no
information explaining or supporting such a claim. PFR File, Tab 3 at 4-5.
Therefore, we find that the appellant has provided no basis for disturbing the
initial decision. See 5 C.F.R. § 1201.114(b) (stating that a petition for review
must include all of the filing party’s legal and factual arguments objecting to the
initial decision, and must be supported by references to applicable laws or
regulations and by specific references to the record). 7
In analyzing the appellant’s whistleblower claim, the administrative judge
found that the appellant failed to prove that his alleged disclosures or activity
were protected or were a contributing factor in his removal. ID at 6-8. The
appellant has not challenged these findings, and we discern no reason upon which
to disturb them. However, the administrative judge found further that, in any
event, the agency established by clear and convincing evidence that it would have
taken the same actions absent the appellant’s alleged protected disclosures and
activity. Id. at 8. Because we have found that the appellant failed to prove that
he made a protected disclosure or engaged in protected activity and the disclosure
or activity was a contributing factor in the action taken, it is unnecessary to
determine whether the agency proved by clear and convincing evidence that it
would have taken the action at issue in the absence of the disclosure or activity.
See 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). Accordingly, we vacate the
administrative judge’s findings concerning whether the agency met its “clear and
convincing” burden.
Accordingly, we deny the petition for review and affirm as modified 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
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | McKenzie_BenjaminDC-1221-16-0837-W-2_Final_Order.pdf | 2024-03-22 | BENJAMIN MCKENZIE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-16-0837-W-2, March 22, 2024 | DC-1221-16-0837-W-2 | NP |
1,960 | https://www.mspb.gov/decisions/nonprecedential/London_CharisseAT-315H-21-0601-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARISSE LONDON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-315H-21-0601-B-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
harisse London , Atlanta, Georgia, pro se.
Andrew Hass , 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 remand initial decision,
which dismissed the remanded appeal of her probationary termination for lack of
jurisdiction under the Whistleblower Enhancement Protection Act of 2012
(WPEA) or the Uniformed Services Employment and Reemployment Rights Act
of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
On petition for review, the appellant does not dispute the administrative judge’s
findings that the Board lacks jurisdiction under the WPEA or USERRA,
and instead reraises a claim of jurisdiction under chapter 75 based on an argument
that the Board previously rejected. London v. Department of Homeland Security ,
MSPB Docket No. AT-315H-21-0601-I-1, Remand Order, ¶ 7 (Apr. 22, 2022).
Generally, we grant 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 We discern no basis to disturb the administrative judge’s finding that the appellant’s
discrimination claim is not based on her uniformed service and, therefore, outside the
scope of the Board’s USERRA jurisdiction. We do not reach his alternative finding that
her discrimination claims were vague and conclusory.
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 | London_CharisseAT-315H-21-0601-B-1_Final_Order.pdf | 2024-03-22 | CHARISSE LONDON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-315H-21-0601-B-1, March 22, 2024 | AT-315H-21-0601-B-1 | NP |
1,961 | https://www.mspb.gov/decisions/nonprecedential/Klipp_Robert_J_DA-0842-17-0049-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. KLIPP,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0842-17-0049-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Agatha Swick , Esquire, Atlanta, Georgia, for the agency.
Serena M. Nguyen , Esquire, Springfield, Virginia, for the agency.
Jude Owusu-Asiedu and Joseph Rieu , Esquire, Arlington, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal, which affirmed the agency’s determination that he was not entitled to 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).
enforcement officer retirement coverage. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2After the filing of the petition for review, the agency submitted a
document entitled “SETTLEMENT AGREEMENT AND RELEASE” and dated
January 25, 2024. Petition for Review (PFR) File, Tab 10. The document
provides, among other things, for the appellant’s withdrawal of the appeal and
petition for review in the instant matter and the appellant’s other Board appeals,
MSPB Docket No. DA-0842-20-0192-A-1 and MSPB Docket No. DA-0842-20-
0192-C-1. 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 10 at 5, 7. Accordingly, we find
that dismissing the appeal with prejudice to refiling (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances. In addition,
we find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113). 2
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Klipp_Robert_J_DA-0842-17-0049-I-1_Final_Order.pdf | 2024-03-22 | ROBERT J. KLIPP v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0842-17-0049-I-1, March 22, 2024 | DA-0842-17-0049-I-1 | NP |
1,962 | https://www.mspb.gov/decisions/nonprecedential/Mokua_Richard_A_CH-0752-22-0376-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD A. MOKUA,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-22-0376-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerry Girley , Esquire, Orlando, Florida, for the appellant.
Amy Standefer-Malott , Esquire, Chicago, 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
dismissed his alleged involuntary resignation appeal for lack of jurisdiction
because the appellant lacks Board appeal rights as a probationary employee with
less than 1 year of 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
¶2The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). If an appellant makes a
nonfrivolous allegation that the Board has jurisdiction over his appeal, the
appellant is entitled to a hearing on the jurisdictional question if he requests one.
Niemi v. Department of the Interior , 114 M.S.P.R. 143, ¶ 8 (2010). On review,
the appellant reasserts that he was not serving a probationary period at the time of
his June 10, 2022 resignation because (1) his probation began on May 20, 2021,
when he received notice from the agency of his appointment rather than on the
August 15, 2021 appointment date reflected in his Standard Form 52 (SF-52) and
(2) the agency told him that his probationary period was 90 days. Petition for
Review (PFR) File, Tab 1 at 5, 7; Initial Appeal File (IAF), Tab 11 at 6-7.
¶3The Board has held that the calculation to determine an individual’s first
year of service begins on the date he entered duty. See Calixto v. Department of
Defense, 120 M.S.P.R. 557, ¶ 19 (2014); see also Hintz v. Department of Army ,
21 F.3d 407, 410 & n.2 (Fed. Cir. 1994) (holding that the appellant’s probationary
period began when he reported for duty, not when he received the letter informing2
him that he had been selected for the position and directing him to report for
duty). Here, the parties do not dispute that the appellant actually started work in
August 2021.2 IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. In his sworn affidavit,
the appellant stated that the agency hired him in August 2021. IAF, Tab 7 at 10.
Additionally, the appellant has not alleged that he performed a Federal function
before his start date in August 2021. See Vandewall v. Department of
Transportation, 52 M.S.P.R. 150, 152-53 (1991) (holding that the appellant’s
probationary period began her first workday because she was not performing a
Federal function or supervised by a Federal official prior to that date).
¶4In reviewing the appellant’s SF-52, the administrative judge noted that it
showed an appointment date of August 15, 2021, and that the appellant was
required to serve a 1-year probationary period that began on August 15, 2021.
IAF, Tab 13, Initial Decision (ID) at 5-6; IAF, Tab 9 at 55-56. However, the
administrative judge erroneously assessed that the SF-52 was “clearly
determinative” when it came to ascertaining the appointment date. ID at 5 (citing
Grisby v. Department of Commerce , 729 F.2d 772 (Fed. Cir. 1984) (citing
Goutos v. United States , 552 F.2d 922 (Ct. Cl. 1976)). In Grisby, the U.S. Court
of Appeals for the Federal Circuit clarified that an SF-50 and SF-52 are not
controlling of an employee’s status but rather they could be considered as
evidence. Grisby, 729 F.2d at 775-76. Thus, the appointment SF-52 submitted by
the agency in this matter is not “determinative” at this stage. Nevertheless, even
disregarding that document, we find that the appellant has not made a
nonfrivolous allegation that his probationary period began prior to his entry on
duty in August 2021 for the reasons set forth above in ¶ 3.
2 The appellant states he started work on August 16, 2021, while the agency states he
was hired on August 15, 2021. IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. The SF-52
documenting his appointment listed the effective date as August 15, 2021, a Sunday.
IAF, Tab 9 at 55-56. The appellant appears to have reported for duty on Monday,
August 16, 2021. The distinction between these dates is immaterial to the outcome of
this appeal. 3
¶5We have considered the appellant’s assertion that, at the time of his
appointment, the agency informed him that he would be placed in a trial or
probationary status for only 90 days. IAF, Tab 11 at 7; PFR File, Tab 1 at 7.
However, the appellant has not alleged any facts that would support a conclusion
that he was subject to a probationary period less than 1 year. See 5 C.F.R.
§ 1201.4(s) (defining “nonfrivolous allegation”); see also Calixto , 120 M.S.P.R.
557, ¶ 5 (noting that almost all first-time competitive service employees are
subject to a 1-year probationary or trial period before accruing adverse action
appeal rights to the Board).3 Even if the agency misrepresented such information,
this would not be a basis for conferring jurisdiction on the Board to hear the
appeal on the merits. See Calixto, 120 M.S.P.R. 557, ¶ 17 n.6; Phillips v.
Department of Housing and Urban Development , 44 M.S.P.R. 48, 52 (1990).
¶6Accordingly, we agree with the administrative judge’s conclusion that the
appellant did not make a nonfrivolous allegation that he was an “employee” with
adverse action appeal rights under 5 U.S.C. chapter 75. ID at 4, 7; see 5 U.S.C.
§§ 7511(a)(1)(A), 7512, 7513(d).
¶7For the first time on review, the appellant states that he was threatened with
termination for preappointment reasons without proper procedures, which might
be a basis for jurisdiction under 5 C.F.R. § 315.806(c). PFR File, Tab 1 at 8-9.
However, he provides no factual allegations to support his bare assertion that his
proposed termination was based in whole or in part on conditions arising before
his appointment. Id.; ID at 7; IAF, Tab 7 at 10-11. We find no basis to disturb
the administrative judge’s conclusion that the appellant has not made a
nonfrivolous allegation of jurisdiction pursuant to 5 C.F.R. § 315.806(a)-(c).
¶8On review, the appellant again claims that he was coerced into resigning
immediately due to alleged misleading and false statements by the agency.
PFR File, Tab 1 at 9-10. However, because the Board lacks jurisdiction for the
reasons already explained, we cannot decide the merits of these claims. ID at 8-9.
3 There is no dispute that the appellant had no prior Federal service. IAF, Tab 1 at 8.4
¶9Having considered the appellant’s petition for review, we affirm the initial
decision dismissing this appeal for lack of jurisdiction. We note, however, that
we do so without prejudice to the appellant, after exhausting his administrative
remedies with the Office of Special Counsel (OSC), timely filing a future
individual right of action (IRA) appeal should he wish to pursue a claim of
whistleblower reprisal. See 5 U.S.C. § 1221; 5 C.F.R. part 1209. In his initial
appeal, the appellant asserted, among other things, that he was retaliated against
for raising certain “concerns” with the Associate Warden and Warden in
December 2021. IAF, Tab 1 at 9. It does not appear that the appellant was
provided notice regarding how to establish jurisdiction over his claims as an IRA
appeal. See, e.g., Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 14; 5 C.F.R. § 1209.2. Nevertheless, before pursuing an IRA appeal, the
appellant must first seek corrective action from OSC before seeking corrective
action from the Board. See Chambers, 2022 MSPB 8, ¶ 5 (quoting 5 U.S.C.
§ 1214(a)(3)). There is no indication that the appellant has done so here,
IAF, Tab 1 at 4, so there is no basis for finding IRA jurisdiction at this time.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Mokua_Richard_A_CH-0752-22-0376-I-1_Final_Order.pdf | 2024-03-22 | RICHARD A. MOKUA v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-22-0376-I-1, March 22, 2024 | CH-0752-22-0376-I-1 | NP |
1,963 | https://www.mspb.gov/decisions/nonprecedential/Newton_Desmond_K_AT-1221-22-0576-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DESMOND K. NEWTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-22-0576-W-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
loria Newton , Oxford, Alabama, for the appellant.
April L. Pugh , Esquire, Anniston, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . On
petition for review, the appellant argues that the administrative judge erroneously
failed to consider all of his submissions; reargues that the agency retaliated
against him or otherwise violated the law by failing to extend his temporary
promotion, failing to internally announce a position vacancy, and racially
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discriminating against him; and submits additional evidence. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s finding that the
appellant failed to nonfrivolously allege that the agency’s failure to internally
announce a position vacancy before selecting an external candidate constituted a
personnel action under 5 U.S.C. § 2302(a), we AFFIRM the initial decision.
To establish jurisdiction in an IRA appeal, an appellant must, among other
things, nonfrivolously allege that he made a protected disclosure or engaged in
protected activity that 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). See Edwards
v. Department of Labor , 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL
4398002 (Fed Cir. July 7, 2023). In his initial appeal documents, the appellant
appeared to argue that the agency retaliated against him based on his mother’s
whistleblowing activity when it failed to internally announce a position vacancy
in 2018 before selecting an external candidate. Initial Appeal File (IAF), Tab 1
at 13, 17-19. The administrative judge considered this argument and properly
found that the agency’s issuance of a vacancy announcement is not a covered
personnel action. IAF, Tab 8, Initial Decision (ID) at 6 (citing Slake v.2
Department of the Treasury , 53 M.S.P.R. 207, 212-13 (1992) for the proposition
that the Board has stated that the issuance of a vacancy announcement is not itself
a personnel action). The administrative judge also found that, even if a
cognizable personnel action occurred here, the appellant failed to nonfrivolously
allege that his mother’s protected activity was a contributing factor in the
agency’s decision to not internally announce the position vacancy or to select an
external candidate for that vacancy. ID at 6. Based on our review of the record,
however, it is unclear to us whether the appellant is simply disputing the
particular way the agency issued/posted the vacancy announcement or the fact
that he was not selected for that position. IAF, Tab 1 at 9, 22-23; see Ormond v.
Department of Justice , 118 M.S.P.R. 337, ¶ 13 (2012) (stating that failure to
appoint is a personnel action). Given this ambiguity, we vacate the
administrative judge’s conclusion that this matter is not a covered personnel
action, but still affirm his finding that the appellant has failed to nonfrivolously
allege that his mother’s protected activity was a contributing factor to any
personnel action at issue in this case. ID at 6.
Although the appellant challenged the administrative judge’s contributing
factor analysis and reasserted many other arguments that he made in his initial
appeal filing before the administrative judge, after a thorough review of the
record evidence, the initial decision, and the appellant’s claims, we discern no
reason to disturb the initial decision except as discussed above. Petition for
Review (PFR) File, Tab 1 at 5-28; see Yang v. U.S. Postal Service , 115 M.S.P.R.
112, ¶ 12 (2010) (stating that arguments that constitute mere disagreement with
the initial decision do not provide a basis to grant a petition for review); see also
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (declining 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). 3
On review, the appellant contends that the administrative judge issued the
initial decision without considering all of his “timely” submissions or
“rebuttals.”2 PFR File, Tab 1 at 4-5. However, the appellant’s assertion is
without merit. The administrative judge’s August 29, 2022 jurisdictional order
required the appellant to submit a statement on jurisdiction within 10 calendar
days, allowed the agency 20 calendar days to submit a response, and informed the
parties that the record on jurisdiction would close on the date the agency’s
response was due. IAF, Tab 3 at 8. Here, the appellant did not submit a response
until September 28, 2022, the day after the initial decision was issued, and well
after the deadlines for the appellant’s statement on jurisdiction and the close of
the record on jurisdiction. IAF, Tabs 8-10. Although the appellant also asserts
that he spoke with an unspecified Board representative who told him “everything
needed at that time was in the Initial Appeal,” such a vague allegation does not
demonstrate that the appellant did not have to follow the specific filing
instructions clearly set out in the administrative judge’s jurisdictional order. PFR
File, Tab 1 at 5, Tab 5 at 6-11. Even assuming the administrative judge’s office
misadvised the appellant in any way, any such error did not prejudice the
appellant’s rights because, considering the appellant’s submission on review, we
find no basis for reversal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
The appellant also submits documentation on review that was included in
the record below, is new, or contains new handwritten notes, to include the
following: an agency memorandum regarding expectations of leaders;
2 The appellant also appears to suggest that the administrative judge erred by not
considering the merits of his appeal. PFR File, Tab 1 at 5. However, only after Board
jurisdiction in an IRA appeal is established is an appellant entitled to a hearing on the
merits. See Downing v. Department of Labor , 98 M.S.P.R. 64, ¶ 15 (2004 ), aff’d,
162 F. App’x 993 (Fed. Cir. 2006). 4
performance evaluations; and vacancy announcements, referral notifications, and
email correspondence related to various positions he has previously applied for.
PFR File, Tab 1 at 32-68. Evidence that is already part of the record is not new
evidence that warrants granting review. Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980). The Board may consider evidence submitted for the
first time on petition for review if it implicates the Board’s jurisdiction and
warrants an outcome different from that in the initial decision. Schoenig v.
Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013); see Atkinson v. Department
of State, 107 M.S.P.R. 136, ¶¶ 11-12 (2007). However, the attached documents
do not implicate the Board’s jurisdiction or warrant a different outcome. 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). As a result, the appellant’s additional evidence does not
warrant further review.
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
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
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Newton_Desmond_K_AT-1221-22-0576-W-1_Final_Order.pdf | 2024-03-22 | DESMOND K. NEWTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-22-0576-W-1, March 22, 2024 | AT-1221-22-0576-W-1 | NP |
1,964 | https://www.mspb.gov/decisions/nonprecedential/Arellano_IsmaelDE-0752-22-0206-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISMAEL ARELLANO,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-0752-22-0206-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven D. Sandven , Esquire, Sioux Falls, South Dakota, for the appellant.
Annielle Parker , 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
reversed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that 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).
ORDER
¶2We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective May 6, 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.
¶3We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits, 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
2 Regarding the appellant’s claim of equal employment opportunity (EEO) retaliation,
the administrative judge concluded that the appellant failed to show that his removal
was motivated by prior EEO activity, and we discern no basis to disturb this conclusion.
The record, however, indicated that the appellant’s EEO activity concerned claims of
both Title VII discrimination and disability discrimination. Initial Appeal File, Tab 25
at 52, 60. A claim of disability discrimination is an activity protected by the
Rehabilitation Act. Pridgen v. Office of Management and Budget , 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. Id.,
¶¶ 44-47. Here, because the administrative judge found that the appellant failed to
prove that his EEO activity was a motivating factor in his removal, he cannot meet the
higher “but-for” causation standard to prove retaliation for engaging in activity
protected by the Rehabilitation Act.
3
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.
¶4We 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).
¶5No 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).
¶6For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
4
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 on
6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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. | Arellano_IsmaelDE-0752-22-0206-I-1_Final_Order.pdf | 2024-03-22 | ISMAEL ARELLANO v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-0752-22-0206-I-1, March 22, 2024 | DE-0752-22-0206-I-1 | NP |
1,965 | https://www.mspb.gov/decisions/nonprecedential/Gulotta_MelvinDC-0752-17-0483-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVIN GULOTTA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-17-0483-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
elvin Gulotta , King George, Virginia, pro se.
Meghan Stoltzfus and Matthew B. Hawkins , Dahlgren, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision as
MODIFIED by this Final Order to supplement the initial decision’s analysis of
the appellant’s affirmative defense. The initial decision is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as an Information Technology Specialist for
the agency’s Naval Systems Engineering Research Center (NSERC). Initial
Appeal File (IAF), Tab 10 at 83. He served as the NSERC Infrastructure Team
Lead and was responsible for overseeing hardware and software supported by his
team, which was comprised of contract employees and frequently interacted with
the “Tools Team.” IAF, Tab 8 at 5-6; Tab 41 at 60, 71-72.
In November 2016, the appellant reportedly made disparaging remarks to
Program Manager A, saying that he did not know anything and that “everything
[he] touched has been an epic failure.”2 IAF, Tab 10 at 58. During the
altercation, Program Manager B attempted to break up the dispute because he
feared that the appellant would get physical. Id. In a subsequent verbal
altercation between the appellant and a Tools Team contractor employee on
January 24, 2017, the appellant reportedly entered the contractor employee’s
workspace, standing very closely over him and speaking in an argumentative and
heated tone. IAF, Tab 8 at 19. Shortly thereafter, the NSERC Configuration
2 Because we discuss two individuals with the title Program Manager, we have referred
to them as Program Manager A and Program Manager B.
3
Manager emailed some of the appellant’s colleagues regarding the appellant’s
hostility in the workplace and unprofessional conduct. IAF, Tab 10 at 77. A day
later, the Tools Team contractor employee emailed Program Manager A stating
that the appellant is constantly belligerent, mentally unstable, and is a legitimate
threat of mass violence. Id. at 82. That same day, the Tools Team Lead emailed
the Group Lead describing the appellant as constantly yelling and cursing at
employees, slamming doors, and throwing objects. Id. at 79-80. She also stated
that the appellant removed permissions from Tools Team members so that they
could not install or configure applications as part of their jobs. Id. at 80.
Following complaints regarding the appellant’s behavior, the agency
initiated an investigation. IAF, Tab 41 at 51. During the investigation, several of
the appellant’s coworkers stated that the appellant exhibited verbally abuse
behavior towards them, IAF, Tab 8 at 4-26, Tab 10 at 56-66, and that he would go
into “outrages” that included cursing and kicking and hitting things, IAF, Tab 10
at 22. The Infrastructure Contractor Lead also told investigators that the
appellant expressed that he wanted to run over certain colleagues with his car,
punch them in the face or throat, kick a coworker down the stairs, and kill the
Tools Team if he could get away with it.3 Id. at 23, 27-29. The Contractor
Lead’s statement also alleged that the appellant deleted and purposely impeded
some of the Tools Team members from performing their work. Id. at 24-26.
Based on this alleged conduct, the agency proposed the appellant’s removal
on the following charges: behavior that caused anxiety in the workplace,
inappropriate behavior, and behavior that caused disruption in the workplace.
IAF, Tab 9 at 105-13. The appellant responded orally and in writing, IAF, Tab 8
at 43-45, 51-53, 68 -140, and the deciding official imposed the removal, id.
at 31-37.4
3 The Infrastructure Contractor Lead worked for a Government contractor and was the
appellant’s counterpart. IAF, Tab 10 at 21.
4 The deciding official did not sustain specification h. of the first charge and d. of the
second charge, in which the agency alleged that the appellant reached out to the
4
The appellant filed the instant Board appeal challenging his removal but
did not request a hearing. IAF, Tab 1. On the basis of the written record, the
administrative judge issued an initial decision sustaining the removal. IAF,
Tab 42, Initial Decision (ID). She found that the agency proved all charges and
specifications except for one of the three specifications underlying the charge of
causing disruption in the workplace. ID at 11-15; IAF, Tab 9 at 105-06.
The administrative judge further found that the appellant failed to prove his
affirmative defense of reprisal for his disclosures wherein he alleged that the
agency was engaging in software piracy and other violations of agency
information technology security policies and procedures. ID at 15-18.
Specifically, the administrative judge found that the agency proved by clear and
convincing evidence that it would have removed the appellant in the absence of
his disclosures. ID at 17-18. Lastly, she concluded that the agency demonstrated
nexus and that the penalty was within the bounds of reasonableness.5 ID at
18-20.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. The appellant has filed a reply to the
agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly denied the appellant’s whistleblower retaliation
affirmative defense.
The appellant proved that he made a protected disclosure that was a
contributing factor to his removal.
In a removal appeal, an appellant’s claim of whistleblowing reprisal is
treated as an affirmative defense. Ayers v. Department of the Army , 123 M.S.P.R.
11, ¶ 12 (2015). In such an appeal, once the agency proves its initial case by
contractor’s program to report and request the termination of contractor employees.
IAF, Tab 8 at 31-32, Tab 9 at 105-06.
5 The appellant has not challenged the administrative judge’s finding regarding nexus,
and we find no reason to disturb this finding on review. PFR File, Tab 1; ID at 18-19.
5
preponderant evidence, the appellant must show by preponderant evidence 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), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the agency’s action. Ayers,
123 M.S.P.R. 11, ¶ 12 & n.1.
The administrative judge found that the appellant made protected
disclosures that the agency was engaging in software piracy and other violations
of agency information technology security policies and procedures. ID at 16-17;
see Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶¶ 3, 12-13 (2016)
(affirming the administrative judge’s finding that the appellant’s disclosures,
including, among others, that classified information and equipment had been
located in an unauthorized area, were protected because he reasonably believed
that they evidenced a violation of Army regulations) . She found that he made
these disclosures to his first-line supervisor in September and November 2016.
ID at 16; IAF, Tab 41 at 46-50, 53-55, 57. She also determined that he repeated
his concerns to the deciding official in May 2017. ID at 16-17; e.g., IAF, Tab 8
at 72-74, 78, 80-81, 127-29. The administrative judge also found that the
appellant proved that his disclosures were a contributing factor in the agency’s
removal based on the knowledge/timing test. ID at 16-17.
The agency proved by clear and convincing evidence that it would
have removed the appellant even in the absence of his protected
disclosures.
When the appellant has established a prima facie case of whistleblowing
reprisal, the burden of persuasion shifts to the agency to show by clear and
convincing evidence that it would have taken the same personnel action absent
the protected disclosure or activity. Elder v. Department of the Air Force ,
124 M.S.P.R. 12, ¶ 39 (2016). In determining whether an agency has met this
burden, 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
6
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).
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).
The administrative judge found that the first Carr factor weighed in favor
of the agency because its removal action was well-supported by the record. ID
at 17. We agree. An agency’s proof of its charges is a factor weighing in its
favor. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 36 (2013). We
note that the deciding official and administrative judge did not sustain all of the
specifications underlying the three charges, thus detracting slightly from the
strength of the agency’s evidence. See Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 28 (2014) (finding that the agency’s internal review
board’s decision not to sustain one of the two charges cited by the deciding
official detracted from the overall strength of the agency’s evidence).
Nevertheless, strong evidence in the record supports finding that the appellant
engaged in serious misconduct. This misconduct included showing colleagues a
knife he kept on agency property, physically threatening colleagues, using
inappropriate and insulting language in referring to coworkers, and delaying their
work.
The appellant argues on review that his January 2017 performance
evaluation did not mention any behavioral issues, thereby demonstrating that he
was not a problematic employee and bolstering his whistleblower retaliation
claim. PFR File, Tab 1 at 24. This evaluation was completed by the appellant’s
first-line supervisor after the appellant made his protected disclosures. IAF,
Tab 40 at 255. Thus, the fact that the first-line supervisor did not mention the
7
appellant’s behavioral issues appears to weigh in the agency’s favor by
suggesting that the supervisor did not take the appellant’s disclosures into
account when taking subsequent actions. Further, the appellant’s supervisor had
the choice of only two ratings, making his choice to rate the appellant as
“acceptable” versus “unacceptable” less significant. Id. at 255. Finally, the
appellant’s first-line supervisor did not mention the appellant’s behavior—
positive or otherwise—in his January 2017 review. Id. at 260. Accordingly, we
do not find that the evaluation undermines the strength of the agency’s evidence.
The administrative judge also found that the second Carr factor,
concerning the existence and strength of any motive to retaliate, weighed in favor
of the agency. ID at 17-18. To the extent that the administrative judge found no
evidence of retaliatory motive by the proposing and deciding officials, we modify
that finding. Id. Those responsible for the agency’s overall performance may be
motivated to retaliate even if they are not directly implicated in the disclosures,
as the criticism reflects on them in their capacity as managers and employees.
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012). Such
criticism is sufficient to establish substantial retaliatory motive. Chambers v.
Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 33 (2013). In this case,
both of the proposing and deciding officials were within the appellant’s chain of
command and his disclosures concerned functions over which they had control.
Thus, we find that they had some retaliatory motive. Nonetheless, we agree with
the administrative judge that their credible denial of retaliatory motive and their
swift action to investigate the appellant’s pirating disclosures evidence that the
motive was not strong. See Runstrom v. Department of Veterans Affairs ,
123 M.S.P.R. 169, ¶ 17 (2016) (finding that the fact that an employee was
accused of wrongdoing did not reflect negatively on his supervisor when agency
officials looked into the appellant’s allegations and, within a few days of the
appellant’s disclosure, found no wrongdoing).
8
On review, the appellant disagrees with the administrative judge’s finding
that his first-line supervisor investigated his concerns regarding the alleged
software piracy and believed that they were resolved, and he argues that these
findings create a false narrative that his first -line supervisor took appropriate
action to rectify the situation. PFR File, Tab 1 at 5; ID at 17. Further, he states
that the administrative judge incorrectly determined that the reported concerns
regarding violations of agency information technology security policies and
procedures and the software piracy disclosure did not result in negative
consequences for his first-line supervisor. PFR File, Tab 1 at 5-8. He asserts that
noncompliance with security protocols could have resulted in a loss of customers
and a potential loss of accreditation of the agency’s systems. Id. at 7-8.
However, he does not point to any specific evidence in the record that supports
his conclusions. Id. at 5-8. Instead, he appears to reference his arguments below.
Id. As such, his petition does not meet the criteria for granting review.6 See
6 After the record closed on review, the appellant filed a motion for leave to file an
additional pleading. PFR File, Tab 8. In his motion, he asserts that on May 6, 2019,
the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in
Robinson v. Department of Veterans Affairs , 923 F.3d 1004 (Fed. Cir. 2019), directly
affecting his appeal and that, because it was issued after the initial decision below, he
wishes to file a pleading with the Board to ensure that “the rule of law be applied
evenly.” PFR File, Tab 8 at 3. He claims that Robinson provides that supervisors who
do not take action to investigate reported wrongdoing by their subordinates face
consequences for their inactions and that such consequences create a motive to retaliate.
Id. We have reviewed the decision in Robinson, and it does not concern whether
adverse consequences against a supervisor for failure to investigate reported
wrongdoing create a motive to retaliate; it concerns only the scope of a supervisor’s
duties within the context of a negligent performance of duties charge. Robinson,
923 F.3d at 1009-13. Further, it is axiomatic that a supervisor can face a performance-
based action or an adverse action for negligent performance of duties, see, e.g., Velez v.
Department of Homeland Security , 101 M.S.P.R. 650, ¶ 11 (2006) (considering a charge
of negligent performance of duties), aff’d, 219 F. App’x 990 (Fed. Cir. 2007), and
Robinson does not add to that axiom. Moreover, here, the administrative judge
concluded that there was no evidence that the supervisor faced any negative
consequences for his actions. ID at 17. As such, a case providing for negative
consequences against a supervisor for negligent performance of duties is of no import.
Thus, although the decision in Robinson is new, it is not material to the instant appeal.
Therefore, we deny the appellant’s motion for leave to file an additional pleading. See
5 C.F.R. § 1201.115(d).
9
Jackson v. Department of the Army , 99 M.S.P.R. 604, ¶ 9 (2005) (finding that the
standard for granting review was not met when the appellants disputed the
administrative judge’s factual findings by referencing their closing argument
submitted below).
The appellant also argues that the administrative judge failed to discuss the
“overwhelming number of violation[s] of law and policy that were occurring.”
PFR File, Tab 1 at 28. He argues that, by identifying and including the alleged
violations in the initial decision, his whistleblower claim would have been more
credible. Id. at 29. However, the appellant does not specify in his petition for
review what the particular violations were and, more importantly, to whom he
disclosed them.
The appellant also argues that the administrative judge incorrectly found
that coworkers were instructed to work around him because of his alleged
behavior, and that instead they were instructed to do so to hide other violations
from him. Id. at 23, 27; ID at 8. He states that the directive to work around him
serves as further proof that his first-line supervisor was aware of the negative
consequences of allowing him to gain knowledge of violations. PFR File, Tab 1
at 7. Finally, the appellant argues that the timeline of events supports a finding
that agency officials had a motive to retaliate. Id. at 27-28. For instance, he
argues that Program Manager A spoke to him aggressively in his office less than
24 hours after the appellant met with his first -line supervisor to disclose the
software piracy allegations and other concerns about Program Manager A. Id.
He also states that, after disclosing this information to his first-line supervisor, he
was no longer made aware of tasking. Id.
The retaliatory motive of the Program Manager A is relevant to the extent
that he influenced the agency’s decision to remove the appellant. See Whitmore,
680 F.3d at 1371 (explaining that the retaliatory motive of an individual outside
an employee’s chain of command may be imputed to the agency if he influenced
the agency’s decision). However, there is nothing to suggest such influence here.
10
Therefore, we decline to impute any retaliatory motive by Program Manager A to
the individuals deciding the appellant’s removal.
Next, we turn to the appellant’s suggestion that the agency deliberately
stopped tasking the appellant and instructed coworkers to work around him
because of his disclosures. PFR File, Tab 1 at 23, 27. We decline to infer that, if
true, this action reflects retaliatory motive. As the appellant himself describes it,
the tasking stopped around January 29, 2017. PFR File, Tab 1 at 27. This
coincides with the decision by the appellant’s first-line supervisor to begin
investigating the appellant’s behavior on January 27, 2017. IAF, Tab 10 at 77 -79,
Tab 41 at 90. It is also consistent with the appellant’s first -line supervisor
observing in the proposed removal that “[c]oworkers are so uncomfortable around
[the appellant] that program leaders have actually directed those individuals to go
to [the appellant’s] contractor counterpart” instead of the appellant. IAF, Tab 9
at 108. The record contains a sworn statement from the Tools Team Lead
claiming that she instructed her team to avoid the appellant due to his behavior.7
IAF, Tab 8 at 27, Tab 9 at 88-89, 94.
Lastly, the administrative judge found that the third Carr factor,
concerning whether the agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situated, also weighed in
favor of the agency. ID at 18; IAF, Tab 41 at 95-119. In particular, she found
that the agency removed two employees who were not whistleblowers but who
7 The appellant may be raising this argument in order to dispute the proposing official’s
determination that the appellant’s coworkers were being instructed to avoid working
with him to due to his behavior. IAF, Tab 9 at 108-09. The proposing official
considered this factor in addressing the appropriateness of the penalty of removal.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (providing a
nonexhaustive list of factors relevant to penalty determinations, and observing that the
Board’s review of an agency -imposed penalty is essentially to assure that the agency
conscientiously considered the relevant factors and struck a responsible balance within
tolerable limits of reasonableness). For the same reasons as discussed here, we are
unpersuaded. The appellant does not otherwise challenge the penalty of removal and
we decline to disturb the administrative judge’s finding that it was appropriate. ID
at 19-20.
11
engaged in similar misconduct. ID at 18. The appellant does not challenge this
finding and we see no reason to disturb it. Weighing the Carr factors against one
another and as a whole, we agree with the administrative judge that the agency
has proven by clear and convincing evidence that it would have removed the
appellant absent his disclosures.
We have considered the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we affirm the
initial decision as modified herein.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
13
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
14
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Gulotta_MelvinDC-0752-17-0483-I-1_Final_Order.pdf | 2024-03-22 | MELVIN GULOTTA v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-17-0483-I-1, March 22, 2024 | DC-0752-17-0483-I-1 | NP |
1,966 | https://www.mspb.gov/decisions/nonprecedential/Gholston_Nia_L_DC-315H-18-0608-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NIA L. GHOLSTON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-315H-18-0608-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
ia L. Gholston , District Heights, Maryland, pro se.
Deborah Charette and Alysa Lease-Williams , 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 probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that 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 filed a motion for leave to file additional
evidence. Petition for Review (PFR) File, Tab 4 at 2. The Board generally will
not consider evidence submitted for the first time on review absent a showing that
it was unavailable prior to the close of the record despite the party’s due
diligence. 5 C.F.R. § 1201.115(d); see Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). Here, the appellant provides no explanation as to
why she could not file this evidence with the administrative judge. Moreover, her
motion states that some of the evidence she now seeks leave to file “was
mentioned . . . in [her] termination letter from the agency,” which suggests she
was aware of its existence prior to the close of the record. PFR File, Tab 4 at 2;
see 5 C.F.R. § 1201.115(d) (“To constitute new evidence, the information
contained in the documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed.”). Thus, we deny the
motion.
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). A probationary employee in
the competitive service who has not completed 1 year of continuous service lacks
3
the right to appeal an adverse action to the Board pursuant to 5 U.S.C. chapter 75.
5 U.S.C. §§ 7511(a)(1)(A), 7513(d); see Harris v. Department of the Navy ,
99 M.S.P.R. 355, ¶ 6 (2005). However, a probationary employee in the
competitive service has a regulatory right to appeal her termination in three
limited circumstances: (1) the employee was discriminated against on account of
her marital status; (2) the employee was discriminated against based on partisan
political reasons; or (3) the agency action was based (in whole or part) on
issues that arose preappointment and the agency did not follow required
procedures. Blount v. Department of the Treasury , 109 M.S.P.R. 174, ¶ 5 (2008);
5 C.F.R. §§ 315.805-315.806.
On review, the appellant alleges that she was improperly designated as a
probationary employee. PFR File, Tab 1 at 3. To this end, she avers that she has
prior Federal service, had no performance issues during her tenure with the
agency, and completed her training early. Id. at 3-7. However, the undisputed
record reflects that the agency appointed her to a position in the
competitive service subject to a 1-year probationary period and terminated her
less than 1 year later; thus, the appellant lacks 1 year of continuous service. See
5 U.S.C. §§ 7511(a)(1)(A), 7513(d); Initial Appeal File (IAF), Tab 5 at 11, 13.
Her allegations of prior Federal service do not constitute nonfrivolous allegations
of Board jurisdiction because the record indicates that such service occurred years
prior to her appointment. IAF, Tab 5 at 24-27; see 5 C.F.R. § 752.402 (“Current
continuous employment means a period of employment or service immediately
preceding an adverse action without a break in Federal civilian employment of a
workday.”); see also Ellefson v. Department of the Army , 98 M.S.P.R. 191,
¶¶ 13-14 (2005). The appellant’s assertions that she completed her training early
and had no performance issues are similarly immaterial to Board jurisdiction. See
5 C.F.R. §§ 315.801-315.802. Accordingly, the appellant has failed to render
nonfrivolous allegations sufficient to warrant a hearing on jurisdiction. See
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s)
4
(“A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue.”).
On review, the appellant alleges that her coworker sexually harassed her
and asserts for the first time that she is a “ single Black female.” PFR File, Tab 1
at 4-6, 8 (emphasis added). To the extent the appellant makes this statement to
suggest that the agency discriminated against her on the basis of her marital
status, we find that she fails to render nonfrivolous allegations sufficient to
warrant a hearing on jurisdiction. See Flores v. Farmers Home Administration ,
12 M.S.P.R. 286, 287 (1982). The appellant has not alleged any correlation
between her statement that she is single and her allegations of sexual harassment,
i.e., that her coworker’s inappropriate behavior was related to, or motivated by,
her marital status. Cf. Ellis v. Department of the Treasury , 81 M.S.P.R. 6, ¶ 11
(1999) (finding the appellant entitled to a jurisdictional hearing when he raised
allegations containing intertwined elements of both sexual harassment and marital
status discrimination).
On review, the appellant alleges for the first time that she is “invoking the
privileges of the Whistleblower Act of 1989.” PFR File, Tab 7 at 1. To this end,
she states that the agency terminated her to cover up unspecified violations
relating to both “ethics” and “scientific integrity.” Id. Because the appellant did
not raise these allegations prior to the issuance of the initial decision, the
administrative judge did not inform her of the applicable burden of proof with
respect to establishing Board jurisdiction for individual right of action appeals
pursuant to 5 U.S.C. § 1221. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985). The Board has jurisdiction over
such appeals only if, among other things, the appellant has exhausted
her administrative remedies before the Office of Special Counsel (OSC).
Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 9 (2011). Here,
there is nothing in the record to suggest that the appellant has exhausted her OSC
administrative remedies. See Simnitt v. Department of Veterans Affairs ,
5
113 M.S.P.R. 313, ¶ 8 (2010) (explaining the specific requirements of
exhaustion). Accordingly, we discern no basis for Board jurisdiction at this time.
Should the appellant exhaust her administrative remedies with OSC, she may file
a separate appeal in this regard. See 5 U.S.C. §§ 1221, 1214; 5 C.F.R. part 1209.
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.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Gholston_Nia_L_DC-315H-18-0608-I-1_Final_Order.pdf | 2024-03-22 | NIA L. GHOLSTON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-315H-18-0608-I-1, March 22, 2024 | DC-315H-18-0608-I-1 | NP |
1,967 | https://www.mspb.gov/decisions/nonprecedential/Dent_Sue_EllenSF-1221-22-0149-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUE ELLEN DENT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-22-0149-W-2
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher D. Vaughn , Esquire, Decatur, Georgia, for the appellant.
Camille D. Stroughter , Esquire, Oakland, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
granted corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED (1) to clarify the scope of the
Board’s jurisdiction in this matter, (2) to supplement the administrative judge’s
analysis of the knowledge/timing test, and (3) to supplement the administrative
judge’s analysis of the second Carr factor, we AFFIRM the initial decision.
BACKGROUND
¶2On December 29, 2021, the appellant filed an IRA appeal with the Board
alleging, among other things, that the agency had removed her from her position
as a Social Worker during her probationary period because she had made
protected disclosures. Dent v. Department of Veterans Affairs , MSPB Docket No.
SF-1221-22-0149-W-1, Initial Appeal File (IAF), Tab 1 at 6-7, 31-32, Tab 8
at 121. With her initial appeal form, the appellant provided an October 29, 2021
close-out letter from the Office of Special Counsel (OSC). IAF, Tab 1 at 27-28.
Although the appellant initially requested a hearing on the matter, she
subsequently withdrew her request. Id. at 2; Dent v. Department of Veterans
Affairs, MSPB Docket No. SF-1221-22-0149-W-2, Appeal File (I -2 AF), Tab 12
at 4-5.
¶3Based on the written record, the administrative judge issued an initial
decision granting the appellant’s request for corrective action. I-2 AF, Tab 31,
Initial Decision (ID) at 1, 26. In so doing, the administrative judge explained that2
the appellant had identified five alleged protected disclosures; however, she had
only shown by preponderant evidence that she had made two protected
disclosures under 5 U.S.C. § 2302(b)(8), i.e., disclosures 1 and 4.2 ID at 3-15.
Regarding disclosure 1, the administrative judge found that the appellant had
shown that, between November 6, 2019, and December 19, 2019, she made a
series of disclosures regarding the agency’s improper storage of veterans’
personal health information in an unrestricted folder maintained on a shared
network. ID at 4-11. Regarding disclosure 4, the administrative judge found that
the appellant had shown by preponderant evidence that, on February 6-7, 2020,
she disclosed to agency management personnel the aforementioned privacy
concerns, as well as, among other things, the fact that she had been subjected to
harassment. ID at 11-13. The administrative judge concluded that the appellant
had shown that disclosures 1 and 4 were a contributing factor in her probationary
termination. ID at 15-20. Via footnote, the administrative judge acknowledged
that the appellant had also alleged that she had been subjected to a hostile
working environment, which could amount to a significant change in working
conditions and, therefore, a covered personnel action; however, he found that the
appellant had failed to prove this personnel action. ID at 15 n.6. He thereafter
found that the agency failed to show by clear and convincing evidence that it
would have removed the appellant absent her protected disclosures. ID at 20-26.
2 By analyzing the merits of the five alleged disclosures identified by the appellant,
IAF, Tab 9 at 4, Tab 11 at 1, the administrative judge implicitly found that the Board
has jurisdiction over the same, ID at 4-15. Similarly, the administrative judge
implicitly found that the Board has jurisdiction over the two alleged personnel actions
in this matter, i.e., the appellant’s probationary termination and her allegation of a
significant change in working conditions. IAF, Tab 5 at 7, Tab 11 at 1; ID at 15 & n.6;
see 5 U.S.C. §§ 2302(a)(2)(A)(iii), (xii). We modify the initial decision to explicitly
find that the Board has jurisdiction over all of these issues and to find that the appellant
exhausted her claims with OSC. IAF, Tab 1 at 27-28, Tab 5 at 33-71; see Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11 (explaining the
requirements of exhaustion); see also MaGowan v. Environmental Protection Agency ,
119 M.S.P.R. 9, ¶ 5 (2012) (explaining that, in an IRA appeal, the standard for
establishing jurisdiction is a nonfrivolous claim, whereas the standard for establishing a
prima facie case on the merits is preponderant evidence). 3
The administrative judge ordered both interim relief and corrective action. ID
at 26-28.
¶4The agency has filed a petition for review of the initial decision, the
appellant has filed a response, and the agency has filed a reply. Petition for
Review (PFR) File, Tabs 1, 5-6. In the petition and reply, the agency argues the
following: (1) the administrative judge erred in assessing witness credibility;
(2) the appellant failed to prove that her disclosures contributed to her removal;
and (3) the agency showed by clear and convincing evidence that it would have
removed the appellant absent her disclosures. PFR File, Tab 1 at 4-10, Tab 6
at 4-9.
¶5Additionally, the appellant has challenged the agency’s certification of
compliance with the interim relief order, and the agency has responded to this
challenge. PFR File, Tab 3 at 4-7, Tab 4 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6Under the Whistleblower Protection Enhancement Act of 2012, an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence3 that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take a personnel action against her. 5 U.S.C.
§ 1221(e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015).
¶7If the appellant makes out a prima facie case, the agency is given an
opportunity to prove, by clear and convincing evidence,4 that it would have taken
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 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established. It is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).4
the same personnel action in the absence of the protected disclosure or activity.
5 U.S.C. § 1221(e)(1)-(2); Webb, 122 M.S.P.R. 248, ¶ 6. 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, but
rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful
that “[e]vidence only clearly and convincingly supports a conclusion when it does
so in the aggregate considering all the pertinent evidence in the record, and
despite the evidence that fairly detracts from that conclusion.” Whitmore v.
Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).
The appellant’s motion to dismiss for noncompliance with the administrative
judge’s interim relief order is denied as moot.
¶8The appellant challenges the agency’s certification of compliance with the
interim relief order and requests that the Board dismiss the agency’s petition for
review. PFR File, Tab 3 at 4-7. She contends, among other things, that the
agency (1) failed to provide sworn statements and (2) merely indicated that it
would take certain actions but did not actually complete these actions prior to
submitting the certification. Id. Because we deny the agency’s petition for
review, the issuance of our Final Order renders moot any dispute concerning the
agency’s compliance with the interim relief order; accordingly, we deny the
appellant’s motion as moot. See Guillebeau v. Department of the Navy , 362 F.3d
1329, 1332-33 (Fed. Cir. 2004) (explaining that the Board has discretion in5
deciding whether to dismiss a petition for review for failure to comply with an
interim relief order); see also Elder v. Department of the Air Force , 124 M.S.P.R.
12, ¶ 20 (2016) (concluding that the Board’s issuance of a final decision rendered
moot the parties’ dispute concerning the agency’s compliance with the interim
relief order).
¶9If the appellant believes that the agency is in noncompliance with the
Board’s Final Order, she may file a petition for enforcement in accordance with
the instructions provided below. See Elder, 124 M.S.P.R. 12, ¶ 20.
The agency’s assertions regarding the administrative judge’s witness credibility
determinations do not compel a different outcome.
¶10The agency argues that the administrative judge erred in analyzing witness
credibility. PFR File, Tab 1 at 5-7, Tab 6 at 4-7. To this end, the agency asserts
the following: (1) the administrative judge erred in assessing the credibility of
agency employee H.F.; (2) the administrative judge did not sufficiently analyze
the credibility of each witness; and (3) the administrative judge’s credibility
determinations are not entitled to deference because the matter was decided based
on the written record. PFR File, Tab 1 at 5-7, Tab 6 at 4-7. We find these
assertions unavailing.
¶11The agency asserts that the administrative judge found agency witness H.F.
not to be credible “simply because [H.F.] could not initially recall” how she had
stored data relevant to disclosure 1, but later refreshed her recollection. PFR File,
Tab 1 at 6. Contrary to the agency’s assertion, however, the administrative judge
identified several reasons why he found H.F.’s version of events to be less
credible than the appellant’s version of events. ID at 6-9. The agency’s
disagreement with the administrative judge’s reasoned credibility determination
and any factual findings stemming therefrom does not provide a basis to disturb
the initial decision. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made6
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
¶12The agency generally contends that the administrative judge failed to
provide an “in-depth” assessment of the credibility of each agency witness and
that his erroneous assessment of H.F.’s credibility “had a poisonous and
deleterious effect” that “bled into” his assessments of the other agency witnesses.
PFR File, Tab 1 at 5-7, Tab 6 at 5. It asserts that the administrative judge’s
assessments of the credibility of agency witnesses “were unexplained other than
an outright adoption of the same bias held against [H.F.].” PFR File, Tab 6 at 5.
We disagree and find that the administrative judge’s credibility determinations
were appropriately based on the factors set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987). E.g., ID at 22-24. To the extent the agency
asserts that the administrative judge’s credibility determinations are indicative of
bias against the agency, PFR File, Tab 6 at 5, we disagree, see Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013) (explaining that there
is a presumption of honesty and integrity on the part of administrative judges that
can only be overcome by a substantial showing of personal bias and that the
Board will not infer bias based on an administrative judge’s case -related rulings).
¶13Lastly, the agency contends that the administrative judge’s credibility
determinations are not entitled to deference and should be given a “heightened
degree of scrutiny” because the matter was decided based on the written record.
PFR File, Tab 6 at 5-6. When no hearing is held and the administrative judge’s
findings are based solely on the written record, the Board will give those findings
only the weight warranted by the record and the strength of his conclusions. See
Donato v. Department of Defense , 34 M.S.P.R. 385, 389 (1987). Here, however,
the agency has not identified any error with the administrative judge’s credibility
determinations or otherwise provided a basis to disturb any of his findings7
stemming therefrom; thus, regardless of the degree of deference given, a different
outcome is not warranted.5
The agency does not provide a basis to disturb the administrative judge’s
conclusion that the appellant proved that her protected disclosures contributed to
her removal.
¶14The agency argues that the appellant failed to show that her disclosures
contributed to her removal. PFR File, Tab 1 at 7-8. In this regard, the agency
acknowledges that the decision to remove the appellant was based on several
reports of conduct filed by agency employees regarding the appellant; however, it
avers that the majority of these reports were drafted by nonsupervisory agency
personnel “who were not privy to [the appellant’s] protected disclosures.” Id.
The agency also asserts that the knowledge/timing test “works best when the
‘knowledgeable’ deciding official can be said to be influenced by the recent
protected disclosures.” Id. at 8. We find these assertions unpersuasive.
¶15An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action.
See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way
to establish contributing factor is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435
(Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of her protected activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the activity was
a contributing factor in the personnel action. Id.
¶16Actual knowledge on part of the deciding official, however, is not the only
manner by which an appellant may satisfy the knowledge/timing test. Indeed, an
5 To the extent the agency argues that it was improper for the administrative judge to
decide the matter without holding a hearing, PFR File, Tab 1 at 7, the agency’s
argument is unavailing, see Thomas v. Department of Veterans Affairs , 51 M.S.P.R.
218, 220 (1991) (explaining that an agency has no statutory right to a hearing).8
appellant also may satisfy the knowledge prong of the knowledge/timing test by
proving that the official taking the action had constructive knowledge of the
protected disclosure, even if the official lacked actual knowledge. Nasuti v.
Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish
constructive knowledge by showing that an individual with actual or constructive
knowledge of the disclosure influenced the official accused of taking the
retaliatory action. See Karnes v. Department of Justice , 2023 MSPB 12,
¶¶ 19-20. Indeed, in an IRA appeal, the party before the Board is the agency, not
its individual officials, and lack of knowledge by a particular official is not
dispositive. Nasuti, 120 M.S.P.R. 588, ¶ 7.
¶17Here, the agency’s assertions do not provide a basis to disturb the
administrative judge’s conclusion that the appellant satisfied the knowledge prong
of the knowledge/timing test. ID at 15-20. For example, the record supports his
findings that agency employees H.F., T.S., and A.I. all (1) had actual knowledge
that the appellant made disclosure 1; (2) had constructive knowledge that the
appellant made disclosure 4; and (3) filed reports of contact that were critical of
the appellant, many of which the agency admittedly relied on in deciding to
terminate the appellant during her probationary period.6 ID at 16-20. In other
words, the record supports the administrative judge’s implicit conclusion that the
deciding officials had constructive knowledge of the appellant’s protected
disclosures. Id. To the extent the agency challenges any of the administrative
judge’s specific findings in this regard, PFR File, Tab 1 at 7-8, its vague
6 The probationary termination letter explained that the agency’s Chief of Social Work
Service, K.S., had recommended the appellant’s termination. I -2 AF, Tab 18 at 77-78,
Tab 28 at 29. In making this recommendation, K.S. relied on an evidence file that she
had been provided. E.g., I-2 AF, Tab 28 at 30-31. This file contained 10 reports of
contact critical of the appellant, 9 of which were submitted by H.F., T.S., or A.I., who,
as indicated, had actual or constructive knowledge of both disclosures. PFR File, Tab 1
at 4; ID at 16, 18, 21-22; IAF, Tab 8 at 13-14, 74-93; I-2 AF, Tab 28 at 31. The
remaining report on which K.S. admittedly relied was written by agency employee J.B.,
who had been instructed to complete the report by N.B. ID at 24-25; IAF, Tab 8 at 86.
The agency does not challenge the administrative judge’s conclusion that N.B. had
actual knowledge of disclosure 4. ID at 17. 9
assertions do not warrant a different outcome, see Tines v. Department of the Air
Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge); see also 5 C.F.R. § 1201.115(a)(2). Thus, we
discern no basis to disturb the administrative judge’s conclusion that the appellant
satisfied the knowledge prong of the knowledge/timing test.
¶18Insofar as it is undisputed that the appellant worked at the agency for less
than 1 year, we supplement the initial decision to explicitly find that the appellant
also satisfied the timing prong of the knowledge/timing test. IAF, Tab 8 at 20,
121; see Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015)
(explaining that the Board has held that a personnel action taken within
approximately 1 to 2 years of a protected disclosure satisfies the
knowledge/timing test). Accordingly, we find that the appellant satisfied the
knowledge/timing test and, therefore, proved that her protected disclosures were a
contributing factor in her probationary termination.
We discern no basis to disturb the administrative judge’s conclusion that the
agency failed to show by clear and convincing evidence that it would have
removed the appellant absent her protected disclosures.
¶19The agency argues that it satisfied its burden of showing by clear and
convincing evidence that it would have removed the appellant from her position
absent her protected disclosures. PFR File, Tab 1 at 8-9. In this regard, the
agency challenges the administrative judge’s analysis of the three Carr factors.
Id. We find the agency’s arguments in this regard unpersuasive.
The agency’s assertions regarding the first Carr factor are unavailing.
¶20The agency challenges the administrative judge’s analysis of the first Carr
factor, i.e., the strength of the agency’s evidence in support of its removal action,
by asserting that it presented “unequivocal” evidence in support of its termination
action, i.e., the reports of contact. Id. at 8. We find this challenge unavailing. 10
¶21Here, the administrative judge fully considered the reports of contact relied
on by the agency to terminate the appellant, but reasoned, among other things,
that many of the reports were uncorroborated, petty, subjective, or confounding.
ID at 22-23. For example, he reasoned that some of the reports included
subjective assessments of the appellant’s tone and mannerisms, to include stating
that she had a “flat affect.” ID at 23. The administrative judge also reasoned
that, although the appellant had submitted detailed responses to the reports of
contact that cast doubts on the credibility of statements made therein, the agency
had provided “exceedingly little” to rebut the appellant’s responses. ID at 25. In
other words, the administrative judge fully considered the reports relied on by the
agency but found that the overwhelming majority of these reports did not credibly
support the agency’s claimed concerns regarding the appellant’s workplace
conduct. The agency’s general disagreement with this reasoned finding is
unavailing. See Tines, 56 M.S.P.R. at 92. Accordingly, the agency has not
presented a basis to disturb the administrative judge’s conclusion that the
agency’s evidence in support of the appellant’s probationary termination was
“quite weak.” ID at 26. Thus, the first Carr factor weighed against the agency.
See Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 23-26, 31 (reasoning that
the evidentiary record did not support the agency’s proffered explanation for its
decision not to select the appellant for a position, and, therefore, the first Carr
factor weighed against the agency).
The agency’s assertions regarding the second Carr factor do not compel a
different outcome.
¶22Regarding the second Carr factor, i.e., the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision, the agency contends that agency officials were not motivated to retaliate
against the appellant because her disclosures concerned “less than egregious
incidents” and “relatively minor infractions and violations” that would not have
negatively impacted agency management beyond corrective action such as the11
direction of “a more secured storage of veteran patient data, as well as an
investigation to determine if the [a]ppellant’s harassment claims were viable.”
PFR File, Tab 1 at 8-9, Tab 6 at 8.
¶23Here, the evidentiary record supports the administrative judge’s finding that
agency officials indirectly involved in the appellant’s termination had strong
motives to retaliate against her; indeed, the appellant’s disclosures reflected
poorly on these employees. ID at 26; see Mangano v. Department of Veterans
Affairs, 109 M.S.P.R. 658, ¶ 30 (2008) (explaining that the officials “involved” in
the action may encompass officials upon whom the proposing or deciding official
relied for information). Additionally, we supplement the administrative judge’s
analysis to find that the agency managerial personnel indirectly involved in the
appellant’s termination also likely harbored retaliatory motives because the
appellant’s disclosures reflected negatively on them as managers and
representatives of the agency’s general institutional interests. To this end, the
appellant’s disclosures concerned, among other things, the improper storage of
the data of approximately 100 veteran patients. ID at 4. This data included
veterans’ full names, addresses, social security numbers, birthdates, phone
numbers, emails, employment information, income, medical diagnoses, and
treatment histories. Id. The improper storage of this private information reflects
poorly on the agency; thus, the disclosure thereof may well have generally
impugned the reputation of agency management resulting in professional
retaliatory motives. See Robinson v. Department of Veterans Affairs , 923 F.3d
1004, 1019 (Fed. Cir. 2019) (explaining that those responsible for the agency’s
overall performance 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); see also Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 69 (2011) (finding that agency managers had a
motive to retaliate because the appellant’s disclosures reflected on them as
representatives of the general institutional interests of the agency).12
The agency’s assertions regarding the third Carr factor are unpersuasive.
¶24Lastly, regarding the third Carr factor, i.e., any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated, the agency asserts that “[w]ith an employee in a
permanent career-conditional appointment, policy dictates this showing must be
made [but for a probationary employee] less of a showing need be made because
one’s continued employment is tied to the successful completion of the
probationary period.”7 PFR File, Tab 1 at 9. We interpret this assertion as an
argument that the third Carr factor is inapplicable to this appeal because the
appellant was a probationary employee at the time of her removal. This
argument, however, is misplaced. See, e.g., Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 34 (2013) (considering whether two probationary
employees were similarly situated for purposes of the third Carr factor). In any
event, the administrative judge implicitly found that the third Carr factor was
effectively removed from consideration because no evidence regarding valid
comparators had been presented. ID at 26 & n.11; see Soto v. Department of
Veterans Affairs , 2022 MSPB 6, ¶ 18 (explaining that, because the agency bears
the burden of proof, when it fails to introduce relevant comparator evidence, the
third Carr factor is effectively removed from consideration and cannot weigh in
the agency’s favor).
7 The agency also asserts that “probationers can be terminated for any perceived
deficiency in performance or conduct.” PFR File, Tab 6 at 7. Although a probationary
employee such as the appellant is afforded fewer procedural protections than a tenured
employee, such an employee is protected from whistleblower retaliation. See Baggan v.
Department of State , 109 M.S.P.R. 572, ¶¶ 9-10 (2008) (explaining that, even when the
Board lacks direct jurisdiction over the termination of a probationary employee, an
appellant may request review in an IRA appeal). Accordingly, regardless of the
appellant’s probationary status, it remained the agency’s burden to prove, under the
clear and convincing standard, that it would have terminated her in the absence of her
protected disclosures. See Hugenberg v. Department of Commerce , 120 M.S.P.R. 381,
¶ 19 n.4 (2013) (clarifying that, when the appellant is a probationary employee, the
evidentiary burden on the agency with respect to a whistleblower retaliation claim is no
less than when the appellant is a tenured employee). 13
¶25Thus, we discern no basis to disturb the administrative judge’s conclusion
that the agency failed to show by clear and convincing evidence that it would
have removed the appellant absent her disclosures.
¶26Accordingly, we affirm the initial decision as modified.
ORDER
¶27We ORDER the agency to cancel the appellant’s termination and to restore
the appellant effective May 1, 2020. 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.
¶28We 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.
¶29We 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).
¶30No 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 not14
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).
¶31For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. 15
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation17
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file18
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 19
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20
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. | Dent_Sue_EllenSF-1221-22-0149-W-2_Final_Order.pdf | 2024-03-22 | SUE ELLEN DENT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-22-0149-W-2, March 22, 2024 | SF-1221-22-0149-W-2 | NP |
1,968 | https://www.mspb.gov/decisions/nonprecedential/Braggs_Annmarie_E_DC-3443-23-0282-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNMARIE ERICA BRAGGS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-23-0282-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Annmarie Erica Braggs , Lansdowne, Virginia, pro se.
Timothy O’Boyle , Hampton, 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 appellant filed her petition for review, the parties submitted a
document entitled “SETTLEMENT AGREEMENT,” signed by the appellant on
January 2, 2024, and by the agency on January 3, 2024. Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(PFR) File, Tab 9 at 6-7. The document provides, among other things, that the
appellant agreed to withdraw and/or dismiss the petition for review in exchange
for promises by the agency.
¶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 through the Equal Employment
Opportunity Commission (EEOC). PFR File, Tab 9 at 6; 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 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.
¶5Accordingly, 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. This is the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 (5 C.F.R. § 1201.113). 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Braggs_Annmarie_E_DC-3443-23-0282-I-1_Final_Order.pdf | 2024-03-22 | ANNMARIE ERICA BRAGGS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-23-0282-I-1, March 22, 2024 | DC-3443-23-0282-I-1 | NP |
1,969 | https://www.mspb.gov/decisions/nonprecedential/Talley_SandraDC-3443-22-0447-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA TALLEY,
Appellant,
v.
NUCLEAR REGULATORY
COMMISSION,
Agency.DOCKET NUMBER
DC-3443-22-0447-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
andra Talley , North Chesterfield, Virginia, pro se.
Lisa Schneiderman , Rockville, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Based on evidence the
parties submit on review, we VACATE the initial decision, but still DISMISS the
appeal for lack of jurisdiction on the grounds that the appellant’s locality pay
reduction was not an appealable adverse action.
BACKGROUND
The appellant was an agency employee with a duty location of Rockville,
Maryland, in the “Washington-Baltimore-Arlington, DC-MD-VA-WV-PA”
locality pay area. Initial Appeal File (IAF), Tab 13 at 12, Tab 19 at 7. She had
been teleworking through a temporary agency telework policy when, in March
2022, she submitted reasonable accommodation requests for, among other things,
a work environment that limited her potential exposure to COVID-19.
IAF, Tab 17 at 5-7, 29, 31. To support her requests, she submitted a doctor’s
note advising that she avoid significant time in crowded and/or poorly ventilated
indoor spaces. Id. at 44. In response, in May 2022, the agency offered her
full-time telework as an accommodation. Id. at 42. The appellant did not accept
the offer, citing the reduction in her locality pay that would result from her
working from her home in North Chesterfield, Virginia, which was in the
Richmond, Virginia locality pay area. Id. at 39-41; IAF, Tab 12 at 4, Tab 13
at 28-29, 42-43. She instead requested an in-office work environment and
schedule that would comport with an updated doctor’s note. IAF, Tab 17 at 44.
The agency agreed to accommodate the conditions in the note with the exception2
of a 100% masking recommendation for others in her shared office space, which
it deemed unreasonable when community COVID-19 levels were low or medium.
Id. at 44-45. The agency agreed, however, to provide the appellant with a
schedule that would permit her to work when fewer staff were onsite and exempt
her from travel obligations. Id.
Before the agency effected any change to her locality pay, the appellant
filed an appeal with the Board. IAF, Tab 1. In response to the administrative
judge’s jurisdictional order, the appellant asserted that the basis for her appeal
was the agency’s offer of two possible accommodations that forced her, because
the in-office option was inconsistent with her doctor’s note, to telework with a
reduced locality pay. IAF, Tab 12 at 4. The appellant continued to telework
during the agency’s consideration of her accommodation request, while receiving
locality pay based on the Rockville, Maryland duty location. IAF, Tab 17 at 46;
Petition for Review (PFR) File, Tab 6 at 10-11.
The administrative judge dismissed the appeal for lack of jurisdiction
without holding the appellant’s requested hearing, finding that the appellant was
contesting a decrease in locality pay that had not yet occurred. IAF, Tab 21,
Initial Decision (ID). The appellant filed a petition for review, followed by a
supplement containing evidence that she acceded to the offer of full-time
telework and that her locality pay had been reduced to the Richmond, Virginia
locality rate. PFR File, Tab 1, Tab 3 at 13, 15. The agency responded with
evidence confirming the appellant’s placement on full-time telework, change in
duty station, and reduction in locality pay. Id., Tab 4 at 12-24, 26. The appellant
filed a reply.2 PFR File, Tab 6.
2 We consider the evidence submitted on review which postdates the close of the record
below and implicates the Board’s jurisdiction, including the evidence cited in this
decision, because the issue of jurisdiction can be raised at any time. See Lovoy v.
Department of Health & Human Services , 94 M.S.P.R. 571, ¶ 30 (2003) (considering
new arguments raised on review because the issue of jurisdiction can be raised at any
time); 5 C.F.R. § 1201.114(b). We do not, however, consider the evidence the appellant
submits for the first time on review which does not postdate the close of record below
because she does not show that it was unavailable before the record closed below3
ANALYSIS
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). Generally, a
reduction in pay is an appealable action. 5 U.S.C. § 7512(4).
Assuming, without deciding, that the Board’s jurisdiction encompasses
locality pay reductions, 5 C.F.R. § 752.401(b)(15) provides that a reduction in
pay from a rate that is contrary to law or regulation is not an appealable adverse
action. In Cook v. Department of the Air Force , 251 F. App’x 675, 677 (Fed. Cir.
2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
concluded that the reduction of a petitioner’s locality rate based on his
geographic reassignment was due to the fact that maintaining his pre-
reassignment rate would have been contrary to law, and was thus not appealable.3
In response to the petitioner’s claim that his reassignment was involuntary, the
Federal Circuit determined that, because his pay reduction was not appealable
under 5 C.F.R. § 752.401(b)(15), whether his reassignment was involuntary was
irrelevant. Id.
The same reasoning applies here. The agency reduced the appellant’s
locality pay based on the change to her official worksite under her full-time
telework reasonable accommodation. PFR File, Tab 4 at 14, 26; see 5 C.F.R.
§ 531.604(b); NRC Directive Handbook 10.41, Pay Administration, § I.C.2
(June 15, 2018), https://www.nrc.gov/docs/ML1814/ML18142A858.pdf (last
visited Mar. 22, 2024). To continue to pay the appellant her previous locality rate
would have been contrary to law, and her pay reduction was therefore not an
despite due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980);
PFR File, Tab 6 at 10, 12-14, 16-17, 19, 21-23. In any event, such newly filed evidence
would not establish jurisdiction over the appeal.
3 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n.5 (2016).4
appealable adverse action. Whether the appellant’s acceptance of the reasonable
accommodation that led to the reduction was involuntary was thus irrelevant. See
Cook, 251 F. App’x at 677.
Accordingly, we vacate the initial decision, but still dismiss the appeal for
lack of jurisdiction because the appellant’s locality pay reduction was not
an appealable adverse action.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Talley_SandraDC-3443-22-0447-I-1_Final_Order.pdf | 2024-03-22 | SANDRA TALLEY v. NUCLEAR REGULATORY COMMISSION, MSPB Docket No. DC-3443-22-0447-I-1, March 22, 2024 | DC-3443-22-0447-I-1 | NP |
1,970 | https://www.mspb.gov/decisions/nonprecedential/Goodrich_TimothySF-844E-22-0380-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY GOODRICH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-22-0380-I-1
DATE: March 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
imothy Goodrich , Yelm, Washington, pro se.
Sheba Dunnings Banks , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement benefits under the Federal
Employees’ Retirement System. On petition for review, the appellant resubmits
his two-page prehearing filing, provides four pages of medical records dated
September 14, 2022, and submits what appears to be a photograph of him working
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on computer equipment. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 With regard to the appellant’s resubmission of his prehearing filing, the Board has
held that the simple resubmission of documents filed below does not meet the petition
for review criteria because it specifies no error in the administrative judge’s analysis.
Mawson v. Department of the Navy , 48 M.S.P.R. 318, 321 (1991). As to the medical
records and photograph that he submits on review, such documents are not material to
the outcome of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (stating that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
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 | Goodrich_TimothySF-844E-22-0380-I-1_Final_Order.pdf | 2024-03-22 | TIMOTHY GOODRICH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-22-0380-I-1, March 22, 2024 | SF-844E-22-0380-I-1 | NP |
1,971 | https://www.mspb.gov/decisions/nonprecedential/Monte_Lisandra_Y_NY-0752-22-0106-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISANDRA Y. MONTE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-22-0106-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Krista M. Irons , 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
affirmed her removal from Federal service. On petition for review, the appellant
argues that the administrative judge erred by rejecting her constructive
suspension claim and by concluding that the removal penalty was within the
tolerable limits of reasonableness. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the agency proved the charge of failure to follow
instructions and to vacate the administrative judge’s finding that the agency
proved the charge of failure to maintain regular attendance, we AFFIRM the
initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
Although not raised by either party on petition for review, it appears that
the administrative judge did not render a finding regarding the fourth charge,
failure to follow instructions. Initial Appeal File (IAF), Tab 16, Initial Decision
(ID) at 4-6. However, the record is sufficiently developed such that we can
evaluate whether the agency has proven this charge. To prove a failure to follow
instructions charge the agency need only show that: (1) the employee was given
proper instructions; and (2) she failed to follow them, regardless of whether the
failure was intentional or unintentional. Powell v. U.S. Postal Service ,
122 M.S.P.R. 60, ¶ 5 (2014). This charge contained a single specification and
concerned the appellant’s failure to respond to an August 20, 2021 administrative
inquiry letter instructing her to report to duty or to provide documentation
substantiating her absences and a September 9, 2021 administrative interview2
letter directing her to attend a conference call with agency officials. IAF, Tab 6
at 5, 13-14. The appellant argued below that this charge should not be sustained
because she never received either letter and, thus, was not aware that she was
required to respond to the letters. IAF, Tab 14, Hearing Compact Disc (HCD)
(testimony of appellant).
The administrative judge declined to credit the appellant’s testimony on
this point, concluding that her testimony was inherently improbable because it
directly conflicted with the agency’s documentary evidence, including numerous
mail tracking records confirming receipt of its letters at the appellant’s address of
record. ID at 5 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (finding a number of factors relevant to credibility determinations ,
including evidence which contradicts or is consistent with a witness’s version of
events and the inherent improbability of a witness’s version)). Specifically, the
administrative judge concluded that the appellant’s claim that the U.S. Postal
Service lost all five copies of the letters that formed the basis for the failure to
follow instructions charge, sent via first class mail, priority mail, and certified
mail to the appellant’s acknowledged address of record, was beyond belief. ID
at 5; IAF, Tab 6 at 28-36, Tab 10 at 18-20; HCD (testimony of appellant).
The proposing and deciding officials also confirmed in their testimony that
five copies of the letters were sent and confirmed as delivered by various delivery
methods to the appellant’s address of record. HCD (testimony of the deciding
official); id. (testimony of the proposing official). The appellant has not
challenged these findings on review, and we credit the administrative judge’s
demeanor-based credibility findings. Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining that the Board must give
“special deference” to an administrative judge’s demeanor-based credibility
determinations); Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (finding that the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the3
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so). Accordingly, we modify the initial decision to conclude that the
agency proved the single specification and the charge of failure to follow
instructions by preponderant evidence.
Regarding the failure to maintain regular attendance charge, the
administrative judge concluded that the agency met its burden of proving the
single specification of this charge. ID at 4-5. A charge of failure to maintain
regular attendance is essentially a charge of excessive absences. See Combs v.
Social Security Administration , 91 M.S.P.R. 148, ¶¶ 11-13 (2002). To establish a
charge of excessive absences, the Board has held that the following criteria must
be 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. Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 30 (2015), overruled on other grounds by Pridgen v. Office
of Management & Budget , 2022 MSPB 31, ¶¶ 23-25 (2022); Cook v. Department
of the Army, 18 M.S.P.R. 610, 611-12 (1984). However, the Board clarified in
Savage that when periods of absence without leave (AWOL) are included within
an agency’s charge of excessive absences, the Board will not consider those
periods under the standard set forth in Cook and instead will only consider them
as an AWOL charge. See Savage, 122 M.S.P.R. 612, ¶ 32 (2015).
As in Savage, the dates for which the appellant was charged with a failure
to maintain regular attendance completely overlap with the dates that she was
charged with AWOL, and thus the charge is entirely duplicative of the AWOL
charge. IAF, Tab 6 at 4-5, 11-13, 37-40. Accordingly, we vacate the4
administrative judge’s finding affirming the failure to maintain regular attendance
charge, and we give this charge no further consideration. ID at 4-5; Savage,
122 M.S.P.R. 612, ¶ 32.
We nevertheless still conclude that the removal penalty is appropriate. The
Board will review an agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant
to penalty determinations and observing that the Board’s review of an
agency-imposed penalty is essentially to assure that the agency conscientiously
considered the relevant factors and struck a responsible balance within tolerable
limits of reasonableness). The Board will give due weight to the agency’s
primary discretion in matters of employee discipline and efficiency, recognizing
that the Board’s function is not to displace management responsibility but to
assure that managerial judgment has been properly exercised. Id. at 302.
When, as here, the Board sustains fewer than all of the agency’s charges,
and the agency either indicates that it would have imposed the same penalty based
on the sustained charges, or does not indicate to the contrary, the Board’s role is
not to independently determine the penalty but to decide whether the agency’s
choice of penalty is appropriate. Negron v. Department of Justice , 95 M.S.P.R.
561, ¶ 32 (2004) (citing Lachance v. Devall , 178 F.3d 1246, 1258-59 (Fed. Cir.
1999)); see Blank v. Department of the Army , 85 M.S.P.R. 443, ¶ 9 (2000)
(explaining that when not all of the agency’s charges are sustained and the agency
has not indicated it desires a lesser penalty under this eventuality, the Board may
presume that the agency desires the maximum reasonable penalty and must
examine whether the agency-imposed penalty is within the maximum limits of
reasonableness), aff’d, 247 F.3d 1225 (Fed. Cir. 2001). The Board cannot
“substitute its will” for that of the agency, which is entrusted with managing its
workforce. Negron, 95 M.S.P.R. 561, ¶ 32 (quoting Lachance, 178 F.3d at 1258).5
Rather, the Board “may mitigate an unreasonably severe agency penalty to bring
the penalty within the bounds of reasonableness.” Id. (quoting Lachance,
178 F.3d at 1258). Nothing in the record indicates that the agency desires a lesser
penalty if not all of the charges are sustained. We must therefore determine
whether the removal penalty is within the tolerable limits of reasonableness.
In evaluating the reasonableness of a penalty, the Board will consider, first
and foremost, the nature and seriousness of the misconduct and its relation to the
employee’s duties, positions, and responsibilities, including whether the offense
was intentional or was frequently repeated. Saiz v. Department of the Navy ,
122 M.S.P.R. 521, ¶ 11 (2015). Moreover, agencies are entitled to hold
supervisors to a higher standard than nonsupervisors because they occupy
positions of trust and responsibility. Edwards v. U.S. Postal Service ,
116 M.S.P.R. 173, ¶ 14 (2010). As the administrative judge observed, the
deciding official specifically identified the applicable Douglas factors, including
the appellant’s lack of past discipline and her 15 years of service. ID at 7; IAF,
Tab 6 at 5; HCD (testimony of the deciding official). The deciding official
testified that these mitigating factors nevertheless did not outweigh the
seriousness of the appellant’s unscheduled absences and her failure to request
leave for over 9 months, particularly in light her role as a supervisor who was
expected to set an example for subordinate employees. ID at 7; HCD (testimony
of the deciding official). Consequently, he concluded that he had lost confidence
in the appellant and that given the egregiousness of her misconduct, there were no
alternatives to removal. HCD (testimony of the deciding official).
Additionally, the Board has regularly found that the sustained offenses are
serious and has upheld the penalty of removal for similar instances of
misconduct. See Thom v. Department of the Army , 114 M.S.P.R. 169, ¶¶ 2, 7
(2010) (upholding a removal penalty for 1 month of AWOL, despite considering
the appellant’s medical conditions as a mitigating factor); Hernandez v.
Department of Agriculture , 83 M.S.P.R. 371, ¶¶ 2, 9 (1999) (finding that failure6
to follow instructions is a serious charge); Wilkinson v. Department of the Air
Force, 68 M.S.P.R. 4, 7 (1995) (acknowledging that a failure to follow leave
requesting procedures can be a serious act of misconduct); Maddux v. Department
of the Air Force , 68 M.S.P.R. 644, 645-46 (1995) (upholding the appellant’s
removal for 21 consecutive calendar days of AWOL, despite 20 years of Federal
service); Hawkins v. Department of the Navy , 49 M.S.P.R. 501, 503, 507 (1991)
(finding that the penalty of removal was reasonable for 16 days of AWOL for an
appellant with no prior discipline and 6 years of service). Based on the specific
facts of this case, we conclude that the agency’s chosen penalty is within the
tolerable limits of reasonableness.
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 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 | Monte_Lisandra_Y_NY-0752-22-0106-I-1__Final_Order.pdf | 2024-03-21 | LISANDRA Y. MONTE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-22-0106-I-1, March 21, 2024 | NY-0752-22-0106-I-1 | NP |
1,972 | https://www.mspb.gov/decisions/nonprecedential/Harris_Isom_W_SF-0752-18-0538-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISOM W. HARRIS, IV,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-18-0538-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melinda A. Harris , Lancaster, California, for the appellant.
Catherine V. Meek , and W. Jason Jackson , Esquire, Long Beach,
California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged suspension 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that 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 basis for the
jurisdictional dismissal, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as Postmaster of the Lynwood Post
Office in Lynwood, California. Initial Appeal File (IAF), Tab 1. On
September 19, 2016, he was performing a route exam in Long Beach, California,
when he was exposed to the sound of continued gunfire, causing flashbacks to his
combat experience in the Gulf War and triggering an episode of posttraumatic
stress disorder (PTSD). IAF, Tab 17 at 13. He took sick leave the following day,
September 20, 2016, and remained in sick leave status through October 3, 2016.
Id. at 16-20. On or about October 6, 2016, the appellant filed a claim with the
Office of Workers’ Compensation Programs (OWCP), seeking continuation of
pay (COP) based on his September 19, 2016 injury. Id. at 14-15.
The record contains conflicting information as to whether the appellant
returned to work. His time and attendance records indicate regular work hours
for the period from October 4 through November 10, 2016, after which he
reentered leave status.2 Id. at 20-30. However, the agency asserts that the
2 Specifically, the time records indicate that the appellant was on paid administrative
leave from November 14 through December 2, 2016; leave under the Family and
Medical Leave Act from December 5, 2016, through February 28, 2017; regular sick or
3
appellant did not return to work or attempt to do so at any point after
September 19, 2016. Id. at 5, 9. For his part, the appellant states that he returned
to work on October 4, 2016. Petition for Review (PFR) File, Tab 1 at 7. He
further alleges that he was scheduled to give a testimonial at a meeting on
October 7, 2016, but that on that same day the agency called him to a meeting at
the district office and placed him on administrative leave, effective immediately,
pending investigation into alleged misconduct. IAF, Tab 1 at 6, Tab 18 at 3,
Tab 19 at 3. According to the appellant, the agency’s unexpected action
aggravated his PTSD, rendering him permanently disabled, and he remained
absent thereafter. IAF, Tab 9 at 3; PFR File, Tab 1 at 7-8.
In a subsequent undated letter, the appellant advised the agency that he had
suffered an aggravation to his injury on October 7, 2016—the day of his
placement on administrative leave—and wished to file a CA -2 form in connection
with his pending OWCP claim. IAF, Tab 17 at 103. He further stated that the
agency had incorrectly recorded work hours instead of leave, and he requested
either COP or sick leave through a period ending November 4, 2016. Id. In
support of his request, the appellant provided medical documentation, including
an October 24, 2016 letter from a marriage and family therapist and an
October 26, 2016 letter from his treating physician. Id. at 104-05. The therapist
opined that the appellant suffered from PTSD as a result of his war experience,
and that the symptoms had been exacerbated by “uncertainty about his job
situation,” resulting from the sudden death of his former regional manager, and
also by his assignment to deliver mail near a shooting range. Id. at 104. He
further stated that the appellant had suffered “what clearly seems hostile
treatment by some of his superiors,” and that he was considering disability
retirement. Id. The appellant’s physician opined that the appellant “is currently
disabled due to [PTSD]. He is not able to perform his duties as Postmaster of the
annual leave from March 1 through August 18, 2017; and leave without pay (LWOP)
beginning August 21, 2017, and continuing through the remainder of his employment.
IAF, Tab 17 at 20-102.
4
Lynwood Post Office. I anticipate that this condition will last more than a year.”
Id. at 105.
On November 17, 2016, the appellant completed an application for
disability retirement.3 Id. at 106-14. In his statement of disability, he indicated
that he suffered from PTSD, that the agency had taken actions that aggravated his
condition, and that as a result he was unable to perform his duties as Postmaster.
Id. at 114. On August 21, 2017, he entered leave without pay (LWOP) status,
having exhausted his sick and annual leave. IAF, Tab 1 at 6, Tab 17 at 73.
On December 7, 2017, the agency proposed to remove the appellant on
misconduct charges unrelated to his absences. Harris v. U.S. Postal Service ,
MSPB Docket No. SF-0752-18-0448-I-1, Initial Appeal File (0448 IAF), Tab 5
at 16-31. The deciding official sustained the proposed action, and the appellant
was removed effective March 17, 2018. Id. at 10-14. The appellant then filed a
timely Board appeal contesting his removal.4 0448 IAF, Tab 1. During a close of
record conference on May 21, 2018, the appellant asserted that he was not paid
during the period he was under investigation, beginning in October 2016. 0448
IAF, Tab 19 at 3. The administrative judge observed that the appellant appeared
to have raised a claim of a constructive suspension or an enforced leave action.
Id. at 3. She invited the appellant to file a separate appeal and advised him of the
jurisdictional standards applicable to both types of actions. Id. at 3-6.
3 The copy provided by the agency omits portions of the application, most notably the
Supervisor’s Statement, which may have served to clarify the circumstances
surrounding the appellant’s absences. We take notice that the Board has before it the
record in the appellant’s pending appeal of the Office of Personnel Management’s
decision denying his application. Harris v. Office of Personnel Management ,
MSPB Docket No. SF-844E-18-0486-I-1; see 5 C.F.R. § 1201.64 (stating that the Board
may take official notice of verifiable facts); Woodjones v. Department of the Army ,
89 M.S.P.R. 196, ¶ 15 (2001) (taking official notice of actions in another Board appeal).
4 On September 7, 2018, the administrative judge issued an initial decision affirming the
removal action. Harris v. U.S. Postal Service , MSPB Docket No. SF -0752-18-0448-I-1,
Initial Decision. Neither party filed a petition for review of that decision, which is now
the final decision of the Board.
5
On May 24, 2018, the appellant filed the instant appeal. IAF, Tab 1. He
identified the agency’s action as “constructive suspension/enforced leave,” with
an effective date of October 7, 2016. Id at 4. He alleged that during the period
from October 7, 2016, when he was notified of his placement on paid
administrative leave, to December 7, 2017, when the notice of proposed removal
was issued, the agency had in fact failed to pay him, and that the loss of pay
caused irreparable mental and physical harm. Id. He indicated he did not want a
hearing. Id. at 2.
The administrative judge advised the appellant of his burden of proof on
jurisdiction and timeliness and ordered him to file evidence and argument
addressing those issues. IAF, Tab 2. The appellant filed several pleadings in
response. IAF, Tabs 3-6, 9-13. The agency filed a motion to dismiss the appeal,
contending that the appellant’s appeal was untimely filed and that he failed to
make a nonfrivolous allegation that his absence from work was involuntary. IAF,
Tab 17.
Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID). Regarding the
constructive suspension claim, the administrative judge found that the appellant
was unable to work, and thus did not have a meaningful choice as to whether to
return to duty, but that it was not the agency’s actions that deprived him of that
choice. ID at 3-7. The administrative judge also did not credit the appellant’s
assertion that the agency initiated his absence by placing him on administrative
leave on October 7, 2016. ID at 8. Having concluded that the Board lacked
jurisdiction over the appeal, the administrative judge did not reach the issue of
timeliness. Id.
On petition for review, the appellant contends the agency falsified his time
and attendance records by marking regular work hours during the period from
October 7, 2016, through November 10, 2016. PFR File, Tab 1 at 6. He asserts
that he did not leave the agency voluntarily on October 7, 2016, and he provides a
6
copy of a July 13, 2018 memorandum from his union representative, who relates
that the agency placed the appellant on paid administrative leave effective
October 7, 2016.5 Id. at 2-3. The appellant further claims the agency’s
October 7, 2016 action aggravated his PTSD, leading to his permanent disability
and the loss of his career. Id. at 7-8. The agency has filed a response, to which
the appellant has replied. PFR File, Tabs 3, 4.
ANALYSIS
The appellant bears the burden of proving jurisdiction by a preponderance
of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). 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). As relevant here, appealable actions include suspensions of more than
14 days. 5 U.S.C. § 7512(2).
The appellant appears to argue that he suffered an appealable suspension on
two theories. First, he alleges that the agency suspended him when it placed him
on enforced leave beginning October 7, 2016. He also argues that he suffered a
constructive suspension because the agency’s October 7, 2016 action aggravated
his PTSD, rendering him permanently disabled and depriving him of the choice to
return to work at a later date, including the period he was in LWOP status. See
Romero v. U.S. Postal Service , 121 M.S.P.R. 606, ¶¶ 5-8 (2014) (distinguishing
between enforced leave actions, which do not purport to be voluntary, and
constructive suspensions, in which leave that appeared to be voluntary actually
5 While the July 13, 2018 memorandum postdates the initial decision in this appeal, the
appellant has not established that the information contained therein is new, i.e., that it
was previously unavailable despite his due diligence. See Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (holding 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);
5 C.F.R. § 1201.115(d). Thus, the memorandum does not by itself serve as grounds for
review. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Nonetheless,
we find it plausible that the agency did in fact place the appellant on paid administrative
leave beginning October 7, 2016.
7
was not); Abbott v. U.S. Postal Service , 121 M.S.P.R. 294, ¶¶ 7, 9-10 (2014)
(same). We find the appellant did not establish jurisdiction on either theory.
Generally, an agency’s placement of an employee on enforced leave for
more than 14 days constitutes an appealable suspension within the Board’s
jurisdiction. Id., ¶ 10. However, the pertinent statute defines a “suspension” as
“the placing of an employee, for disciplinary reasons, in a temporary status
without duties and pay .” 5 U.S.C. §§ 7501(2), 7511(a)(2) (emphasis added). For
this reason, the Board lacks jurisdiction over an agency’s decision to place an
employee on paid administrative leave. See, e.g., Reymann v. U.S. Postal
Service, 77 M.S.P.R. 407, 409 (1998). Thus, accepting as true the appellant’s
claim that he was involuntarily placed on paid administrative leave effective
October 7, 2016, the agency’s action did not constitute an appealable suspension
within the Board’s jurisdiction. While we agree with the appellant that his time
and attendance records are incorrect in reporting work hours, rather than
administrative leave, for the period from October 7 through December 2, 2016, he
has provided no evidence, such as earnings and leave statements or bank records,
to corroborate his claim that the agency failed to pay him during that period.
We have also considered whether the appellant’s absences beginning
August 28, 2017, when he entered LWOP status, constitute a constructive
suspension within the Board’s jurisdiction. As the Board explained in Bean v.
U.S. Postal Service , 120 M.S.P.R. 397 (2013), all constructive suspensions have
two things in common: (1) the appellant lacked a meaningful choice as to
whether to return to work; and (2) it was the agency’s wrongful actions that
deprived the employee of that choice.6 Id., ¶ 8. Regarding the first element, we
find the appellant lacked a meaningful choice in the matter, as it is undisputed
6 The initial decision erroneously states that the question of who initiated the absence
remains the dispositive issue in “enforced leave type constructive suspensions.” ID
at 5-6. These do not exist. As the Board clarified in Abbott, 121 M.S.P.R. 294, ¶ 10,
the placement of an employee on enforced leave for more than 14 days is an ordinary
suspension within the Board’s jurisdiction, and the case law concerning constructive
suspensions is not applicable to such a case.
8
that he was medically incapable of returning to his job as Postmaster. See id.,
¶ 13 (rejecting the notion that working outside medical restrictions is a viable
option for Federal employees).
As to the second element, the appellant argues that the agency aggravated
his PTSD, rendering him permanently disabled, when it placed him on
administrative leave without warning, pending investigation into alleged
misconduct. PFR File, Tab 1 at 7-8. Thus, in his view, it was the agency’s
wrongful actions that deprived him of a meaningful choice whether to return to
work. However, apart from the appellant’s own conclusory statements, the only
record evidence that might lend support to that conclusion is the October 24, 2016
letter from the appellant’s marriage and family therapist, who opined that the
appellant’s PTSD was aggravated by “uncertainty about his work situation” and
“hostile treatment by some of his superiors.” IAF, Tab 17 at 104. We find these
vague statements do not amount to preponderant evidence that the agency took
wrongful actions that were so injurious as to cause the appellant’s incapacitation.
Moreover, the appellant has not demonstrated that the agency acted improperly in
assigning him to the route in Long Beach, or in placing him on paid
administrative leave pending an investigation that ultimately resulted in his
removal. Accordingly, we find the appellant has failed to show by preponderant
evidence that he suffered an appealable constructive suspension.
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
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Harris_Isom_W_SF-0752-18-0538-I-1 Final Order.pdf | 2024-03-21 | null | SF-0752-18-0538-I-1 | NP |
1,973 | https://www.mspb.gov/decisions/nonprecedential/Lewallen_Julian_L_DA-0842-18-0399-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIAN LEE LEWALLEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0842-18-0399-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julian Lee Lewallen , Fort Worth, 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 due to rescission of the
reconsideration decision issued by the Office of Personnel Management (OPM).
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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed an appeal challenging OPM’s reconsideration decision
regarding his creditable service for purposes of a retirement annuity.
Initial Appeal File (IAF), Tab 1, Tab 5 at 10-11. Specifically, he disputed OPM’s
exclusion of his service in a temporary appointment from his total service
computation. IAF, Tab 5 at 10-11. While this appeal was pending before the
administrative judge, OPM indicated that it was rescinding its June 13, 2018
reconsideration decision and remanding the appellant’s case to the Post
Adjudication and/or Post -56 Military Service Credit Branch for further
development. IAF, Tab 10 at 4. On August 6, 2018, the administrative judge
issued an initial decision dismissing this appeal for lack of jurisdiction based on
OPM’s assertion that it was rescinding the reconsideration decision. IAF, Tab 12,
Initial Decision (ID) at 2. The appellant filed a petition for review on
September 10, 2018, alleging that OPM failed to timely notify him of his new
annuity benefits or issue a new reconsideration decision, as applicable.2
Petition for Review (PFR) File, Tab 2 at 4.2 OPM has responded to the petition,
and the appellant has replied. PFR File, Tabs 4 and 5.
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). Generally, the Board has
jurisdiction over retirement issues only after OPM issues a final or
reconsideration decision. McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 73-74, aff’d per curiam , 40 F.3d 1250 (Fed. Cir. 1994) (Table).
The Board has held that, if OPM completely rescinds a reconsideration decision,
the rescission divests the Board of jurisdiction over the appeal in which the
reconsideration decision is at issue, and the appeal must be dismissed. Martin v.
Office of Personnel Management , 119 M.S.P.R. 188, ¶ 8 (2013). The Board may
assert jurisdiction over a retirement appeal in the absence of a reconsideration
decision if OPM has refused or improperly failed to issue a final decision.
McNeese, 61 M.S.P.R. at 74.
Here, OPM indicated that it would rescind the reconsideration decision,
send the appellant’s case to the appropriate department for further development,
and, if applicable, issue a new final decision with appeal rights. IAF, Tab 10 at 4.
The appellant filed his petition for review only a month after the initial decision
was issued. Compare PFR File, Tab 2, with ID. Thus, there is no excessive delay
by OPM that would indicate a refusal or failure to issue a final decision. Cf.
Easter v. Office of Personnel Management , 102 M.S.P.R. 568, ¶ 8 (2006) (finding
that an 18-month delay by OPM in addressing the appellant’s application
indicated a declination to adjudicate the application). This month -long delay is
2 Along with his petition for review, the appellant also submits documents that are part
of the record below. Compare PFR File, Tab 2 at 6-11, with IAF, Tab 1 at 4-9. The
documents submitted by the appellant do not constitute new and material evidence that
was not previously available despite due diligence and therefore the Board need not
consider them. 5 C.F.R. § 1201.115(d); see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980 ) (finding that evidence that is already a part of the record is
not new).3
not the type of excessive delay that would lead the Board to conclude that OPM
has improperly failed or refused to issue a decision. See Okello v. Office of
Personnel Management , 120 M.S.P.R. 498, ¶ 15 (2014) (finding that OPM’s
failure to issue a final decision for 6 years constituted an appealable
administrative action because the appellant diligently sought a final decision
during that time period). However, as noted by the administrative judge, after
OPM does issue a new reconsideration decision, the appellant may file a new
appeal with the appropriate regional office if he disagrees with that decision. ID
at 2; see Rorick v. Office of Personnel Management , 109 M.S.P.R. 597, ¶ 7
(2008).
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.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 | Lewallen_Julian_L_DA-0842-18-0399-I-1 Final Order.pdf | 2024-03-21 | JULIAN LEE LEWALLEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0842-18-0399-I-1, March 21, 2024 | DA-0842-18-0399-I-1 | NP |
1,974 | https://www.mspb.gov/decisions/nonprecedential/Harris_Isom_W_SF-844E-18-0486-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISOM W. HARRIS, IV,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-18-0486-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melinda A. Harris , Lancaster, California, for the appellant.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s newly submitted evidence, we AFFIRM the
initial decision.
BACKGROUND
On March 15, 2018, the Office of Personnel Management (OPM) issued a
reconsideration decision denying the appellant’s application for disability
retirement based on his claimed disability of Posttraumatic Stress Disorder.
Initial Appeal File (IAF), Tab 11 at 4-6. In its decision letter, OPM notified the
appellant that if he wished to exercise his right to appeal to the Board, his appeal
must be filed within 30 days after the date of the decision, or 30 days after receipt
of the decision. Id. at 6. The letter was addressed to the appellant’s post office
box (PO Box) in Lakewood, California, and sorted for delivery at that location on
March 19, 2018. Id. at 4; IAF, Tab 4 at 9-10.
Thirty-seven days later, on April 25, 2018, the appellant filed the instant
appeal. IAF, Tab 1. He identified his address as a street address in Lancaster,
California. Id. at 1. In her acknowledgment order, the administrative judge
notified the appellant that there was a question as to whether his appeal was
timely filed. IAF, Tab 2 at 2. She informed the appellant of the relevant
deadlines and directed him to submit evidence and argument showing that his
3
appeal was timely filed or that good cause existed for the delay. Id. at 2-5. OPM
then moved to dismiss the appeal. IAF, Tab 4.
In his response to OPM’s motion, the appellant explained that OPM had
sent the letter by certified mail to his old address, when his current address was
already on record with the “agency”—by which he apparently meant the
U.S. Postal Service (USPS), his employer.2 Id. at 3. According to the appellant,
USPS had improperly delivered the item without obtaining his signature and
returning the PS Form 3811 (Domestic Return Receipt) to OPM. Id. The
appellant further alleged that OPM’s letter, with the unsigned PS Form 3811 still
attached, was “left in [his] mailbox only a few days before the appeal was filed.”
Id. The appellant’s attempt to submit a copy of the PS Form 3811 was
unsuccessful, although a hard copy was eventually entered into the record. Id.
at 4-5; IAF, Tab 18 at 2.
The administrative judge then issued a second order on timeliness. IAF,
Tab 7. In the order, she noted that it was unclear from the record when OPM was
notified of the appellant’s new address or that he was no longer receiving mail at
the PO Box in Lakewood. Id. at 1. She also noted that it was unclear on what
date the appellant claimed to have received the letter or whether the “mailbox” he
was referring to was the PO Box in Lakewood or his current address in Lancaster.
Id. The appellant was provided another opportunity to file evidence and
argument showing by preponderant evidence that his appeal was timely filed.
IAF, Tab 7 at 2.
In his response, the appellant stated that he maintained the PO Box in
Lakewood through July 2017, but did not renew it thereafter. IAF, Tab 8 at 3.
He stated that in August 2017, his wife submitted a change of address to have
their mail delivered to the Lancaster address. Id. He submitted a copy of a USPS
form recording the change of address request, which bears his wife’s name and
2 There appears to have been miscommunication between the appellant and the
administrative judge as to whether the term “agency” refers to USPS or OPM. When
possible, we will refer to USPS and OPM by name.
4
indicates the address was changed from a street address in Long Beach,
California. IAF, Tab 18 at 4. The appellant further stated that OPM’s letter had
been delivered to a cluster box housing locked mailbox doors for multiple
addresses, but he did not indicate on what date and in which city the delivery
occurred. IAF, Tab 8 at 3. He again stated that USPS had improperly failed to
obtain his signature and return the PS Form 3811 to OPM. Id.
The administrative judge issued an initial decision dismissing the appeal as
untimely filed. IAF, Tab 19, Initial Decision (ID). She first found that April 19,
2018, should be deemed the date of receipt of OPM’s reconsideration decision,
and that the appeal was therefore late by 7 days. ID at 3-4. She further found
that the appellant had not shown good cause for the filing delay. ID at 6.
On review, the appellant submits an internal USPS record indicating that he
completed a change of address request from the PO Box in Lakewood to his
current address in Lancaster, effective July 29, 2017. Petition for Review (PFR)
File, Tab 1 at 3. He explains that he did not submit the document below because
he “needed time” to get it. Id. at 2. According to the appellant, “[t]he agency”—
it is unclear to which agency the appellant is referring—“was notified after this
action Change of Address was submitted.” Id.
In its response, OPM contends the appellant never informed OPM of any
address change. PFR File, Tab 3 at 5. OPM further notes that the appellant
received and requested reconsideration of OPM’s August 4, 2017 initial decision,
which was addressed to the PO Box in Lakewood.3 Id.; see IAF, Tab 11 at 41-45 .
OPM further argues that the appellant failed to show that the newly submitted
document was previously unavailable, or that the administrative judge erred in
3 OPM also states that the appellant provided a copy of his December 31, 2017 removal
letter from USPS, which was also addressed to the Lakewood PO Box to which OPM
issued its initial and reconsideration decisions. PFR File, Tab 3 at 5. While we are
unable to locate a December 31, 2017 removal letter, the record does contain a
December 5, 2017 notice of proposed removal, addressed to the PO Box in Lakewood,
which the appellant provided OPM in support of his disability retirement application.
IAF, Tab 11 at 9-15; see id. It is unclear from the record whether mail was the
exclusive means of service for the proposal notice.
5
her findings and conclusions. PFR File, Tab 3 at 5 -6. In his reply, the appellant
states that he did not previously have possession of the internal USPS document,
and that he was able to obtain it only after making repeated attempts to schedule
an appointment with the Lakewood post office, which is a 3-hour drive away from
his current address in Lancaster. PFR File, Tab 4 at 3. He again asserts that
USPS mishandled the reconsideration letter, and argues that OPM denied his
request for disability retirement based on faulty information. Id.
ANALYSIS
The appellant bears the burden of proving the timeliness of his appeal by a
preponderance of the evidence.4 5 C.F.R. § 1201.57(c)(2). With exceptions not
applicable here, the Board’s regulation at 5 C.F.R. § 1201.22(b) requires 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 receipt of the
agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). The same
regulation further provides:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and correspondence which is properly addressed and sent to
the appellant’s address via postal or commercial delivery is presumed
to have been duly delivered to the addresses.
5 C.F.R. § 1201.22(b)(3). It is evident from context that, here, “the agency”
means the agency that issued the decision on appeal, in this case OPM.
The record reflects that OPM issued its reconsideration decision on
March 15, 2018, and sent it by certified mail to the appellant’s PO Box in
Lakewood. IAF, Tab 11 at 4, Tab 4 at 9-10. In light of the appellant’s newly
submitted evidence, it appears that he had previously informed USPS, in its
capacity as mail deliverer, of his change of address from the PO Box in
4 The Board’s regulations define a preponderance of the evidence as 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).
6
Lakewood to his current address in Lancaster, effective July 29, 2017. PFR File,
Tab 1. Accordingly, we begin with a presumption that OPM’s letter, which was
sent and addressed to the appellant’s former address in Lakewood, was duly
forwarded and delivered to his address in Lancaster.
Section 1201.22(b)(3) further provides that the presumption of delivery
may be overcome under the circumstances of a particular case, although an
appellant may not avoid service of a properly addressed and mailed decision by
intentional or negligent conduct which frustrates actual service. Even though the
appellant did request that USPS forward his mail from the PO Box in Lakewood
to his current address in Lancaster, he was nonetheless responsible for keeping
OPM informed of his current address, see id., and he did not meet that
responsibility. Under these circumstances, we find that any failure or delay in
actual service would be attributable, at least in part, to negligent conduct on the
part of the appellant.
In any case, even if circumstances were such that the presumption of
delivery might be defeated, the appellant has not shown that he actually received
OPM’s letter within 30 days before he filed his Board appeal on April 25, 2018.
Indeed, he has not clearly identified the alleged date of receipt. The appellant
indicated on his appeal form that the date of OPM’s decision was March 21,
2018, and it is possible that this was intended to represent the date he received the
decision. IAF, Tab 1 at 4. If so, however, his appeal was still late by 5 days.
Accordingly, we find the appellant failed to show by preponderant evidence that
his appeal was timely filed.
We also affirm the administrative judge’s finding that the appellant failed
to establish good cause for the untimely filing. To establish good cause for the
untimely filing of an appeal, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether
an appellant has shown good cause, the Board will consider the length of the
7
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
While the precise length of the filing delay is somewhat unclear in this
case, the Board will not waive its timeliness requirements in the absence of a
showing of good cause, regardless of how minimal the delay. Melendez v.
Department of Homeland Security , 112 M.S.P.R. 51, ¶ 16 (2009). The appellant
makes a vague reference to his “VA appointments and treatment,” IAF, Tab 8
at 3, but he has not indicated when the appointments and treatment occurred or
explained how his medical issues would have prevented him from filing his Board
appeal during the 30-day filing period. Nor has he demonstrated any other
circumstances beyond his control that prevented him from timely filing his
appeal. We further note that OPM’s reconsideration decision placed the appellant
on clear notice of the deadline for filing a Board appeal, which weighs against a
finding of good cause. IAF, Tab 11 at 6; see Melendez, 112 M.S.P.R. 51, ¶ 14.
Notwithstanding the appellant’s pro se status, we conclude that he has not met his
burden of showing good cause for his untimely filing.
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
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
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Harris_Isom_W_SF-844E-18-0486-I-1 Final Order.pdf | 2024-03-21 | null | SF-844E-18-0486-I-1 | NP |
1,975 | https://www.mspb.gov/decisions/nonprecedential/Terry_AndrewPH-0752-22-0235-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW TERRY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-22-0235-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndrew Terry , Pittsburgh, Pennsylvania, pro se.
Angela Madtes , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s chapter 75 removal based on the charge of inappropriate
conduct. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
VACATE two non-material findings of fact concerning the first specification of
the agency’s charge, we AFFIRM the initial decision.
On petition for review, the appellant argues, among other things, that the
administrative judge erred in finding that the agency proved its first specification
of the charge of inappropriate conduct. Petition for Review (PFR) File, Tab 1
at 6-11, 15; Initial Appeal File (IAF), Tab 30, Initial Decision (ID) at 2-6. The
agency’s first specification concerned three text messages of a “highly
inappropriate nature” sent from the appellant’s personal cell phone to another
employee. IAF, Tab 6 at 20. The text messages cited in the specification
addressed the employee by name and included statements such as, “[t]ry me again
and it will be your job,” and “[now] you are done. If you wish to act like a dumb
bitch, you will be treated like a dumb bitch.” Id. On review, the appellant
re-asserts that the agency cannot prove this specification because he sent the three
texts listed in this specification to the employee’s husband—the owner of the cell
phone—and not the employee. PFR File, Tab 1 at 6-11, 15; IAF, Tab 1 at 5,
Tab 4 at 3, 17, 20, Tab 6 at 63. He contends that, contrary to two findings by the
administrative judge, he did not admit at the hearing to sending the texts to the
employee, PFR File, Tab 1 at 7; ID at 5-6, 8, and the evidence did not establish2
that the employee was routinely using her husband’s cell phone, PFR File, Tab 1
at 8-9; ID at 8.
We agree with the appellant that these findings of fact were erroneous
because they were unsupported by the record, and we vacate these findings. IAF,
Tab 28, Hearing Recording (HR) (testimony of the appellant); ID at 5-6, 8.
Nonetheless, although the Board may grant a petition for review based on a
factual error, such error must be material. 5 C.F.R. § 1201.115(a)(1). A material
error is one that is of sufficient weight to warrant an outcome different from that
of the initial decision. Id. We find that the texts listed in the agency’s first
specification were clearly directed at the employee and not at her husband, even
though her husband owned the cell phone. IAF, Tab 6 at 44, 63. Thus, we find
no material error in the administrative judge’s decision to sustain the first
specification. ID at 2-6.
The appellant also argues on review that the administrative judge abused
his discretion by barring the appellant from continuing his cross-examination of
the deciding official regarding “ANY Douglas factor.” PFR File, Tab 1 at 12-13;
IAF, Tab 27 at 3; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306
(1981) (setting forth a non-exhaustive list of factors relevant to the penalty
determination in adverse actions). To obtain reversal of an initial decision on the
ground that the administrative judge abused his discretion in excluding evidence,
the petitioning party must show on review that relevant evidence, which could
have affected the outcome, was disallowed. Jezouit v. Office of Personnel
Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x. 865 (Fed. Cir.
2005). We have reviewed the hearing testimony in its entirety. HR (testimony of
the deciding official). We find that the appellant has not shown that, if not for
the administrative judge’s rulings, he was likely to obtain evidence during his
cross-examination of the deciding official that would have resulted in an outcome
different from that of the initial decision. Id. Thus, we affirm the initial
decision. 3
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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); Perry v. Merit Systems Protection
Board, 582 U.S. 420 (2017). If you have a representative in this case, and your
representative receives this decision before you do, then you must file with the
district court no later than 30 calendar days after your representative receives
this decision. If the action involves a claim of discrimination based on race,
color, religion, sex, national origin, or a disabling condition, you may be entitled
to representation by a court -appointed lawyer and to waiver of any requirement of5
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Terry_AndrewPH-0752-22-0235-I-1_Final_Order.pdf | 2024-03-21 | ANDREW TERRY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-22-0235-I-1, March 21, 2024 | PH-0752-22-0235-I-1 | NP |
1,976 | https://www.mspb.gov/decisions/nonprecedential/Summerell_Daniel_P_DC-315H-18-0478-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL P. SUMMERELL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-315H-18-0478-I-1
DATE: March 21, 2024
THIS ORDER IS NONPRECEDENTIAL1
L
aura A. O’Reilly , Virginia Beach, Virginia, for the appellant.
David Scruggs , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s probationary termination appeal for lack of jurisdiction.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the 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
On April 15, 2018, the appellant transferred from his Investigator position
at the Office of Personnel Management (OPM) to a Police Officer position at the
agency, the Department of Veterans Affairs. Initial Appeal File (IAF), Tab 6
at 18-20, Tab 7 at 8-9. The Standard Form (SF) 50 documenting his transfer to
the agency reflects that his appointment was subject to the successful completion
of a 1-year initial probationary period. IAF, Tab 6 at 18.
Effective April 23, 2018, the agency terminated the appellant from his position
during his probationary period due to lack of candor. Id. at 8-11.
The appellant appealed his termination to the Board. IAF, Tab 1.
The administrative judge notified him that the Board may not have jurisdiction
over his appeal because probationary employees in the competitive service who
have less than 1 year of current, continuous service under other than a temporary
appointment limited to 1 year or less have limited rights of appeal to the Board .
IAF, Tab 2 at 3. She apprised him of the ways in which he could establish
jurisdiction over his appeal and ordered him to file evidence and argument
amounting to a nonfrivolous allegation of jurisdiction. Id. at 3-6. In response,
the appellant argued that the Board had jurisdiction over his appeal because he
had more than 1 year current, continuous service based on his prior Federal
service. IAF, Tab 7. Without holding the appellant’s requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 10, Initial Decision (ID).
3
The appellant has filed a petition for review of the initial decision, the
agency has responded, and the appellant has replied.2 Petition for Review (PFR)
File, Tabs 1, 3-4.
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). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.
§ 7511(a)(1) generally has the right to challenge his removal from Federal service
by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234, ¶ 9 (2011). To qualify as an “employee,” an individual in a
competitive-service position, like the appellant, must show either that he is not
serving a probationary period, 5 U.S.C. § 7511(a)(1)(A)(i), or that he has
completed 1 year of current, continuous service under an appointment other than
a temporary one limited to a year or less, 5 U.S.C. § 7511(a)(1)(A)(ii).
An individual may establish that he is a competitive-service “employee” under
either of these alternative definitions. McCormick v. Department of the
Air Force, 307 F.3d 1339, 1342 -43 (Fed. Cir. 2002).
Here, the administrative judge correctly found that the appellant did not
complete his 1-year probationary period because he had not served a full year
under his appointment and because he failed to show that he had prior service in
the same or similar line of work that could be “tacked on” to his current service
for purposes of completing the probationary period. ID at 5. However, as the
appellant argues on review, the administrative judge did not consider whether he
2 On April 17, 2023, the appellant requested leave to file an additional pleading.
Petition for Review (PFR) File, Tab 7. Other than a petition for review, cross petition,
responses, and reply, no additional pleadings are accepted on review unless the party
files a motion with the Clerk of the Board that describes the nature of and need for the
pleading, and obtains leave to file. See 5 C.F.R. § 1201.114(a)(5), (k). The appellant
alleges that he recently discovered evidence that shows that his appeal is not moot.
PFR File, Tab 7. This alleged new evidence does not change the outcome of the appeal
because, as set forth below, we find that the appeal is not moot. Thus, the appellant’s
request is denied.
4
met the alternative definition of a competitive -service “employee” with Board
appeal rights. PFR File, Tab 1 at 7.
Under section 7511(a)(1)(A)(ii), an individual in the competitive service
can show that, although he may be a probationer, he is an “employee” with
chapter 75 appeal rights because, immediately preceding the adverse action, he
had completed at least 1 year of current continuous service in the competitive
service without a break in Federal civilian employment of a workday.
Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 9 (2010). This period of
service need not be performed in the same agency or in the same line of work.
Dade v. Department of Veterans Affairs , 101 M.S.P.R. 43, ¶ 10 (2005).
The record reflects that the appellant held a competitive-service
appointment at OPM from September 4, 2016, until he transferred to the agency
on April 15, 2018. IAF, Tab 7 at 8-14, Tab 6 at 18-20. In a sworn affidavit, he
attested that he worked for OPM on Friday, April 13, 2018, and that he reported
to work at the agency on Monday, April 16, 2018. IAF, Tab 7 at 8. The agency
does not dispute this timeline or argue that the appellant lacked 1 year of current,
continuous service without a break in Federal civilian employment of a workday.
IAF, Tabs 6, 8-9; PFR File, Tab 3. Thus, we find that the appellant has shown
that he had at least 1 year of current, continuous service prior to his termination
and that he met the definition of “employee” under section 7511(a)(1)(A)(ii).
Accordingly, the Board has jurisdiction over the appellant’s termination appeal.
On review, the agency argues that, even if the Board has jurisdiction over
this appeal, the matter is now moot because it rescinded the appellant’s
termination and processed the action as a resignation effective on the date that the
appellant planned to resign, April 28, 2018. PFR File, Tab 3 at 1, 7, 9. In
response, the appellant argues that the appeal is not moot because he has not
received back pay for the period between his termination on April 23, 2018, and
the date of his “resignation” on April 28, 2018. PFR File, Tab 4 at 4. He further
argues that he did not intend to resign. Id. at 4-5.
5
The Board may dismiss an appeal as moot if the appealable action is
cancelled or rescinded by the agency. Hess v. U.S. Postal Service , 123 M.S.P.R.
183, ¶ 5 (2016). For an appeal to be deemed moot, the agency’s rescission of the
appealed action must be complete, and the employee must be returned to the
status quo ante. Id. Status quo ante relief generally requires that the appellant be
placed back in his former position or in one substantially equivalent in scope and
status to his former position. Id. Status quo ante relief also requires that the
agency remove all references to the rescinded action and restore to the appellant
any lost back pay or benefits. Id.
Here, there is no evidence that the agency has paid back pay to the
appellant, removed references to his termination, or restored him to his former
position or to a substantially similar one.3 Thus, the appeal is not moot.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 Although the agency argues that the appellant intended to resign, there is no evidence
that he did so before the effective date of his termination.
4 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | Summerell_Daniel_P_DC-315H-18-0478-I-1_Remand_Order.pdf | 2024-03-21 | DANIEL P. SUMMERELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-315H-18-0478-I-1, March 21, 2024 | DC-315H-18-0478-I-1 | NP |
1,977 | https://www.mspb.gov/decisions/nonprecedential/Ryan_JohnCH-0752-22-0147-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN RYAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-22-0147-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Nowogrocki , Esquire, St. Louis, Missouri, for the appellant.
Alex D. Miller , Esquire, and Dane R. Roper , 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
sustained his removal action. On petition for review, the appellant argues that the
administrative judge made erroneous findings of fact, improperly weighed
evidence, and made erroneous credibility determinations. Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
File, Tab 1 at 5-25. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Ryan_JohnCH-0752-22-0147-I-1 Final Order.pdf | 2024-03-21 | JOHN RYAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-22-0147-I-1, March 21, 2024 | CH-0752-22-0147-I-1 | NP |
1,978 | https://www.mspb.gov/decisions/nonprecedential/Glover_Classie_N_AT-1221-20-0740-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLASSIE N. GLOVER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-20-0740-W-2
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse L. Kelly, II , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Mary Sellers , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which denied corrective action in her individual right of action appeal . On
petition for review, the appellant argues, among other things, that the
administrative judge erred in finding that she failed to establish the contributing
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
factor element of her whistleblower reprisal claim. Generally, we grant 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 | Glover_Classie_N_AT-1221-20-0740-W-2__Final_Order.pdf | 2024-03-21 | CLASSIE N. GLOVER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0740-W-2, March 21, 2024 | AT-1221-20-0740-W-2 | NP |
1,979 | https://www.mspb.gov/decisions/nonprecedential/Garnica_David_L_SF-0714-18-0329-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. GARNICA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0329-I-1
DATE: March 21, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sam L. Maze , Killeen, Texas, for the appellant.
Cheri Thanh M. Hornberger , Esquire, Los Angeles, California, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 38 U.S.C. § 714 removal appeal as untimely filed. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal to the Western Regional Office for
adjudication on the merits.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency removed the appellant from his position as a Maintenance
Mechanic, effective January 24, 2018, under the authority of 38 U.S.C. § 714.
Initial Appeal File (IAF), Tab 7 at 15, 17-19. In the decision letter, the agency
advised the appellant that he could file an appeal with the Board challenging his
removal no later than 10 business days after the date of the removal action.
Id. at 17-18. The appellant acknowledged receipt of the removal decision on
January 19, 2018, the same day the agency issued the decision. Id. at 1, 19. The
appellant subsequently filed a Board appeal, which was received by the Board’s
Western Regional Office (WERO) on March 12, 2018. IAF, Tab 1 at 1. The
appellant alleged on his appeal form that his removal was the product of unlawful
discrimination based on his race. Id. at 5.
The administrative judge issued an order addressing timeliness in which he
informed the appellant that he had 10 business days from the January 24, 2018
effective date of his removal to file his appeal, acknowledged the filing date of
the appeal as March 12, 2018, observed that it appeared the appellant had
untimely filed his appeal, described the circumstances under which the deadline
could be waived or tolled, and ordered both parties to respond. IAF, Tab 2. Both
parties filed responses to the order. IAF, Tabs 4-5. In his response, the appellant
explained that he initially attempted to file his Board appeal by mail, sending a
completed appeal form with a postmark dated February 8, 2018, but that he used
an old version of the appeal form that listed WERO’s prior mailing address.
IAF, Tab 4 at 3, 18. After that mailing was eventually returned as undeliverable,
the appellant resubmitted his appeal by facsimile on March 12, 20218. Id. at 4,
19-22; IAF, Tab 1 at 1-2.
The administrative judge subsequently issued an initial decision finding the
appeal was untimely filed by either 1 business day, based on the appellant’s
attempted February 8, 2018 filing, or 22 business days, based on his perfected
March 12, 2018 filing. IAF, Tab 10, Initial Decision (ID) at 8-9. He reasoned
that under 38 U.S.C. § 714, the appellant had 10 business days from the date of
his removal to file a Board appeal, that equitable tolling did not apply to extend
the appellant’s filing deadline, and that the appellant had failed to show that good
cause existed for this delay in filing his appeal. ID at 8-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review, and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant files what is known as a mixed case when he seeks review of
a matter within the Board’s appellate jurisdiction and also raises a claim of
discrimination or retaliation in violation of equal employment opportunity (EEO)
statutes. Wilson v. Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 12, 25. An
appellant has two options when filing a mixed case: (1) he may initially file a
mixed-case EEO complaint with his employing agency followed by an appeal to
the Board; or (2) he may file a mixed-case appeal with the Board and raise his
discrimination claims in connection with that appeal. Id., ¶ 13. An employee
may file either a mixed-case complaint or a mixed-case appeal, but not both, and
whichever is filed first is deemed an election to proceed in that forum. Id. Here,
the appellant first filed an appeal with the Board challenging his removal on
February 8, 2018. IAF, Tab 1. Although that filing was submitted to an outdated
Board mailing address and the appellant later resubmitted his appeal to the
correct address by fax on March 12, 2018, the appeal was deemed received as of
the February 8, 2018 attempted filing date. See Merian v. Department of the
Navy, 107 M.S.P.R. 221, ¶ 3 (2007) (finding the appellant’s jurisdictional
response timely when it was mailed to the regional office’s former address within
the filing deadline).
After the initial decision in this matter was issued, the Board held that
when the agency takes an action under 38 U.S.C. § 714, and the appellant files a
mixed case appeal, the procedures contained within 5 U.S.C. § 7702 and the
Board’s implementing regulations apply. Davis v. Department of Veterans
Affairs, 2022 MSPB 45, ¶ 19; Wilson, 2022 MSPB 7, ¶¶ 11-25. Under those
regulations, if the appellant has not filed a formal discrimination complaint with
the agency and raises his discrimination claim for the first time with the Board,
an appeal is due 30 days after the effective date of the agency’s action or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is
later. Davis, 2022 MSPB 45, ¶¶ 17-19; 5 C.F.R. § 1201.154(a).
The appellant received the agency’s removal decision on January 19, 2018,
and his removal was effective January 24, 2018. IAF, Tab 1 at 10-12. The
appellant raised a claim of discrimination in connection with his removal in his
initial appeal and he did not file a formal discrimination complaint with the
agency regarding his removal. Id. at 5; IAF, Tab 7 at 12. Therefore, the
appellant’s 30-day time period for filing a Board appeal began on January 24,
2018. The appellant filed his mixed-case appeal 15 days later, on February 8,
2018—the postmark date of his misdirected Board appeal. IAF, Tab 4 at 18-22.
Thus, the appeal was timely filed. Accordingly, we remand the appellant’s mixed
case appeal for adjudication on the merits.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for adjudication on the merits.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Garnica_David_L_SF-0714-18-0329-I-1 Remand Order.pdf | 2024-03-21 | DAVID L. GARNICA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0329-I-1, March 21, 2024 | SF-0714-18-0329-I-1 | NP |
1,980 | https://www.mspb.gov/decisions/nonprecedential/Akamanti_Jeanie_N_PH-0752-17-0412-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEANIE N. AKAMANTI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-17-0412-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bonnie J. Brownell , Esquire, Christopher Landrigan , Esquire, and Sarah
Mugmon , Esquire, Washington, D.C., for the appellant.
Shelly S. Glenn , and Julie Zimmer , 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
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the analysis of the appellant’s disparate penalty claim, we AFFIRM the
initial decision.
BACKGROUND
The appellant began her career with the agency in June 2013 as a Facility
Planner in Marion, Illinois. Hearing Transcript (HT) at 96-97 (testimony of the
appellant). She applied in August 2016 for a GS-13 Health Systems Specialist
(Strategic Planner) position at the agency’s medical center in Martinsburg, West
Virginia. Id. at 98; Initial Appeal File (IAF), Tab 6 at 5. In the application
process, she submitted an Official Form (OF) 306, Declaration for Federal
Employment. HT at 99 (testimony of the appellant); IAF, Tab 6 at 5, Tab 3 at 6,
102-03. Although the agency selected her for the position, due to an intervening
hiring freeze, she did not receive notice until March 2017 of her April 17, 2017
starting date in Martinsburg. HT at 106, 110 (testimony of the appellant); IAF,
Tab 6 at 5.
Also in March 2017, the State of Illinois issued a warrant for the
appellant’s arrest on one felony count of vendor fraud and two felony counts of
theft, charging that she had obtained payments from the state’s Department of
Healthcare and Family Services to which she was not entitled. IAF, Tab 32
at 71-74. On March 10, 2017, the appellant was booked on the charges set forth
above, and she was released on bail. Id. at 75-76. On April 5, 2017, the
appellant filed a motion in Illinois court for permission to depart the state to
accept employment. HT at 149 (testimony of the appellant); IAF, Tab 3 at 94.
After an arduous move,2 the appellant reported for orientation in
Martinsburg on April 17, 2017. HT at 110 (testimony of the appellant). On the
next day, during further orientation, the agency provided the appellant with a
folder of documents, among which was the OF-306 form she had filled out in
August 2016. HT at 114 (testimony of the appellant). The appellant completed
portions of the form concerning life insurance and her last date in her previous
position, and then signed and dated the form in the place reserved for the
appointee’s signature, just below where she had signed the same form in August
2016 as an applicant. HT at 115, 156-57 (testimony of the appellant); IAF, Tab 3
at 102-03. She did not update any of her previous answers. Thirteen days later,
the appellant filled out an Electronic Questionnaire for Investigations Processing
(e-QIP), also known as a Standard Form (SF) 86. HT at 116-17 (testimony of the
appellant); IAF, Tab 3 at 39-60. On her e-QIP, the appellant indicated, among
other things, that she had been arrested in March 2017 on charges “regarding
personal health care and medical services [she] received while transitioning from
disability and re-entering the workforce and full time employment.” IAF, Tab 3
at 58.
On June 1, 2017, the agency proposed the appellant’s removal on a single
charge of Lack Of Candor concerning her OF-306. Id. at 81-82. The agency
alleged that when the appellant reviewed and recertified her OF-306 on April 18,
2017, she failed to disclose the pending criminal charges against her, despite the
2 The appellant testified that she suffers from a Chiari malformation and a Tarlov cyst,
which causes changes in her cerebral spinal fluid and her blood pressure affecting her
ability to function. HT at 102 (testimony of the appellant). She asserted that the
condition causes her profound fatigue, interferes with the ability of her eyes to focus,
and makes it difficult for her to think and concentrate. Id. at 102-03. 3
fact that by signing the OF-306 she certified that all of the information on the
form was “true, correct, complete, and made in good faith.” Id. at 81, 103. The
appellant made oral and written responses, and the agency sustained the charges,
removing the appellant effective July 31, 2017. Id. at 20-22, 24-29.
The appellant filed an appeal and, after holding a hearing, the
administrative judge affirmed the agency’s removal action. IAF, Tab 1, Tab 14,
Initial Decision (ID). The administrative judge found the appellant’s testimony
that she thought she was certifying the prior responses on her OF-306 was
implausible, citing her demeanor and the fact that she updated other information
on the form during her orientation in Martinsburg. ID at 6. The administrative
judge found that the appellant’s testimony concerning her March 2017
communications with an agency human resources specialist was less than
forthright and that, despite her subsequent disclosure on the e-QIP, her failure to
reveal the details of the criminal matter on her OF-306 involved an element of
deception. ID at 8, 10. The administrative judge afforded no weight to the
polygraph examination that the appellant reportedly passed given the preparation
afforded the appellant before the test and the limited nature of the questioning
involved. ID at 9-10; IAF, Tab 6 at 31-32. Thus, finding it clear that the
appellant failed to provide complete or correct information, the administrative
judge sustained the lack of candor charge. ID at 10. She also denied the
appellant’s due process and harmful error claims, found nexus, and determined
that the penalty of removal was reasonable. ID at 10-17.
In her petition for review, the appellant argues that her “contemporaneous
disclosure” on the e -QIP corroborates her explanation that she did not knowingly
provide inaccurate or incomplete information on her OF-306. Petition for Review
(PFR) File, Tab 1 at 12. She challenges the administrative judge’s analysis of
this issue, and contends that the agency misrepresented the record with respect to
it. Id. at 12-13. The appellant argues that the administrative judge improperly
disregarded the polygraph examination and failed to properly analyze the factors4
that the Board has set forth for determining the proper weight to be afforded such
evidence. Id. at 14-15. She also contends that the administrative judge
misrepresented the record concerning the testimony of the human relations
specialist who testified that he advised the appellant that she would have to
update her OF-306 as part of the transition process and contended that the
specialist never requested her to do so. Id. at 17-19, 21. The appellant argues
that her completion of the bottom portion of page 2 of the OF -306 corroborates,
rather than contradicts, her testimony, contending that the location of the
remaining questions caused her to misunderstand that she only needed to update
the information concerning life insurance. Id. at 19-20. She makes a similar
argument concerning her statement that she needed a firm job offer from the
agency and her need to take home another form for review. Id. at 20-21. Lastly,
she challenges the administrative judge’s assessment of her demeanor and argues
that the administrative judge erroneously rejected her affirmative defenses. Id.
at 22-27. The agency did not reply to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency established the lack of candor charge .
In Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002),
our reviewing court explained that lack of candor is a broad and flexible concept
that need not involve an affirmative misrepresentation, but “may involve a failure
to disclose something that, in the circumstances, should have been disclosed in
order to make the given statement accurate and complete.” Unlike falsification,
lack of candor does not require “intent to deceive” but nevertheless requires an
element of deception. Id. at 1284-85; Fargnoli v. Department of Commerce ,
123 M.S.P.R. 330, ¶ 16 (2016). To establish that element of deception, the
agency must establish that the appellant made the incorrect or incomplete
statement knowingly. Fargnoli, 123 M.S.P.R. 330, ¶ 17. Thus, lack of candor5
requires proof of the following elements: (1) that the employee gave incorrect or
incomplete information; and (2) that she did so knowingly. Id.
For the following reasons, we agree with the administrative judge that the
agency proved the charge. Given the chronology of events, in which, among
other things, the appellant had to petition the Illinois court for permission to leave
the state to start her new job a mere 2 weeks before reporting to Martinsburg, we
do not believe that she simply forgot her criminal matter when she completed her
OF-306 form on April 18, 2017. HT at 149 (testimony of the appellant); IAF,
Tab 3 at 94. Moreover, such forgetfulness, even if caused by a temporary loss of
focus and fatigue brought on by the appellant’s medical condition, would not
suffice to negate her obvious contemporaneous knowledge of her criminal matter.
Similarly, the appellant’s claimed failure to read the text in block number 17 of
the OF-306 when she signed it on April 18, 2017, is also insufficient to negate
her knowledge of the criminal charges pending against her or the significance of
the certification she executed by signing the form. HT at 115 (testimony of the
appellant); IAF, Tab 3 at 102-03. The specific instructions on the OF-306
provide that an appointee should carefully review her answers on the form and
make changes “[i]f any information requires correction to be accurate as of the
date you are signing.” IAF, Tab 3 at 103. The record establishes that the
appellant did not do so. Her April 18, 2016 signature on the OF -306 specifically
certified that, to the best of her knowledge and belief, all of the information on
the OF-306 was “true, correct, complete, and made in good faith,” and the
excuses she proffers in her petition for review cannot change the fact that her
certification turned out to be untrue at a time when it defies belief that she forgot
the criminal charges against her. Id.; PFR File, Tab 1. The appellant’s
contention that she thought her signature on April 18, 2017, was merely
recertifying her August 2016 responses is similarly inherently implausible. The
appellant has not explained why the agency would have needed her to simply
recertify something she already had certified was correct as of August 2016, and6
the signature lines clearly indicate that one signature applied to her as an
applicant, while the other applied to the appellant as an appointee, reflecting her
status at two different points in time. IAF, Tab 3 at 103.
As noted above, the appellant reiterates her argument that her May 5, 2017
disclosure of the criminal charges on her e -QIP corroborates her explanation that
she did not knowingly provide inaccurate or incomplete information on her
OF-306. PFR File, Tab 1 at 12; IAF, Tab 3 at 39, 58. The administrative judge
was not convinced, citing the appellant’s subsequent email exchange with an
agency human resources specialist concerning her OF-306 in which the specialist
noted that he had found the OF -306 she had signed during orientation and no
further action was necessary. ID at 8-9; IAF, Tab 6 at 30. The specialist’s
subsequent mention of the OF-306, even though the appellant may have
considered herself off the hook by the specialist’s assertion that no further action
was necessary, should have reminded her of the explicit good-faith obligation to
update the OF-306 to make it true, correct, and complete as stated in the
certification she signed on April 18, 2017. IAF, Tab 6 at 30, Tab 3 at 58, 103.
Moreover, the fact that the appellant chose to disclose her criminal charges on
May 5, 2017, after she had been working in Martinsburg for several weeks, does
not necessarily shed light on whether she knowingly lacked candor on April 18,
2017, when her employment in Martinsburg may have been less established. See
Shelton v. Department of Labor , 38 M.S.P.R. 1, 2-3 (1988) (finding that the
administrative judge properly focused on the appellant’s state of mind when he
submitted his employment application, and that his post-application submission
of a corrected application did not warrant a different result).
Although the appellant correctly observes on review that the emails from
the human resources specialist did not advise her of the need to update her
OF-306 as part of the onboarding process, she also testified that she had more
than five telephone calls with the specialist in the several months preceding her
onboarding in Martinsburg. HT at 145-46 (testimony of the appellant); PFR File,7
Tab 1 at 17. The specialist testified that the pace of calls he received from the
appellant increased between February and March 2017. HT at 36 (testimony of
the human resources specialist). He also testified that he had twice asked the
appellant for an updated OF-306 in telephone conversations, not in an email, and
he further asserted his belief that the appellant understood why the update was
necessary. HT at 34-35 (testimony of the human resources specialist). On
review, the appellant contends that the administrative judge misrepresented the
record in finding the specialist’s testimony more credible than hers, arguing that
he was evasive and that he misrepresented whether he sent a tentative offer letter
to the appellant in which he advised her of the need to update her OF-306. PFR
File, Tab 1 at 17. Although the tentative offer letter is not part of the record, the
specialist testified that most of his contact with the appellant concerning the
OF-306 was over the phone, and he further testified that the appellant explicitly
asked him in one of those conversations why she needed to update her OF-306.
HT at 35, 41-43 (testimony of the human resources specialist).
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity
and capacity to observe the event or act in question; (2) the witness’s character;
(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of
bias; (5) the contradiction of the witness’s version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witness’s version of events; and (7) the witness’s demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987). Drawing on the
appellant’s testimony concerning her conversations with the specialist, the
administrative judge found that, despite the appellant’s insistence that she never
received a tentative offer letter, her email correspondence with the specialist
indicates that the agency had contacted her with a proposed starting date. ID at 8.8
On that basis, the administrative judge found the appellant’s testimony less than
forthright as compared to the specialist, whose testimony she found credible
because it was consistent with the documentary evidence and “exhibited no bias
against the appellant, whom he knew only through the recruitment process.” ID
at 8.
The appellant claims on review that the specialist was evasive in his
testimony concerning whether he sent the tentative offer letter that advised her of
the need to update her OF-306. PFR File, Tab 1 at 17. The administrative judge
found that the testimony of the human resources specialist, although not
particularly detailed, was not unreliable because of the reasons stated above. ID
at 8. Nevertheless, regardless of when the specialist advised the appellant of the
need to update her OF-306, such a finding is not dispositive of whether the
appellant did so, and does not absolve her of the obligation to update the OF-306
as her April 18, 2017 signature on the form certified that she had. IAF, Tab 3
at 103. 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) . We find the
appellant’s reasons on review are not sufficiently sound to overturn the
administrative judge’s demeanor-based credibility findings.
The appellant argues that the administrative judge improperly disregarded
her polygraph examination and failed to properly analyze the factors for
determining the weight it should be accorded. PFR File, Tab 1 at 14-15; see
Meier v. Department of the Interior , 3 M.S.P.R. 247, 254-55 (1980) (setting forth
the factors to be considered in assessing the weight of polygraph evidence). The
appellant asserts that the report of the polygraph examination shows that she did
not deliberately try to conceal the fact that she was under charges for a violation
of law when she signed the OF-306. PFR File, Tab 1 at 15; IAF, Tab 6 at 31-33.9
Indeed, in addition to finding that the appellant believed she was just signing her
“old OF-306 form,” the polygraph examiner determined that the appellant did not
deliberately try to conceal the fact that she was under charges for a violation of
law when she signed “the VA forms in April of [2017].” IAF, Tab 6 at 32.
However, regardless of whether the appellant truthfully answered those questions
before the polygraph examiner, the questions posed do not adequately address the
elements of the lack of candor charge. Fargnoli, 123 M.S.P.R. 330, ¶ 17 (finding
that the elements of a lack of candor charge are (1) that the employee gave
incorrect or incomplete information; and (2) that she did so knowingly).
As for the first element, it is beyond doubt that the appellant gave incorrect
information when she signed the OF-306 on April 18, 2017; the form indicates
that she was not then under charges for any violation of law, and both the record
and her testimony indicate that she was so charged in March 2017. HT at 102
(testimony of the appellant); IAF, Tab 3 at 71-76. Concerning the second
question, the appellant was not charged with deliberately concealing the
information, rather, the agency charged her with lack of candor. IAF, Tab 3
at 81-82; Fargnoli, 123 M.S.P.R. 330, ¶ 17. Unlike a charge of falsification, lack
of candor does not require “intent to deceive” but instead merely requires that the
agency establish an element of deception. Fargnoli, 123 M.S.P.R. 330, ¶ 16.
Based in part on the appellant’s demeanor testifying before her, the
administrative judge found that the agency established that element of deception,
ID at 10, and the polygraph examiner’s finding that she may not have deliberately
sought to conceal information is therefore not dispositive of whether the appellant
knowingly provided inaccurate or incomplete information on her OF-316. Thus,
regardless of the polygraph examiner’s competence and qualifications, the
examination is worthy of little weight, if any, here. See Meier, 3 M.S.P.R.
at 254-55 (identifying the competence of the polygraph examiner as one of the
factors to be considered in assessing the weight afforded to such evidence). We10
therefore find that the administrative judge did not err in affording the report of
the appellant’s polygraph examination little weight in her analysis. ID at 9-10.
Concerning the appellant’s contentions—that her completion of questions
on the bottom portion of page 2 of the OF-306, as well as her insistence that she
needed a firm offer from the agency and her request to take another form home to
review, all corroborate rather than contradict her testimony—we disagree. PFR
File, Tab 1 at 19-21. First, none of the appellant’s assertions excuse the fact that
her April 18, 2017 signature certified that the information on her OF -316 was
correct and complete when, as demonstrated above, it clearly was neither correct
nor complete. IAF, Tab 3 at 102-03.
Moreover, as noted above, the appellant fails to provide sufficiently sound
reasons to discount the administrative judge’s credibility determinations, which
described the appellant’s demeanor when answering questions in considerable
detail, remarking that she looked away as she unemphatically asserted her
mistaken belief that she was certifying her August 2016 answer. ID at 6. The
administrative judge similarly observed that the appellant also avoided eye
contact with her when she asserted that her polygraph examination discerned no
deception in her answers. ID at 9. On review, the appellant challenges the
administrative judge’s credibility findings as inconsistent and irrational, and
claims that they misrepresent the record. PFR File, Tab 1 at 21. Nevertheless,
she does not establish any contradiction in the analysis she cites, failing to offer a
coherent explanation as to why a “clipped” answer of “no” concerning whether
she had any past convictions or probation might indicate something different from
a “perfunctory” “no” answer on a completely different question concerning
whether she had tried to conceal the fact that she was under charges for a
violation of law. Id. at 22; ID at 5, 9. Similarly, the appellant fails to establish
that the administrative judge incorrectly assessed her tendency to look at her
counsel when answering important questions. PFR File, Tab 1 at 22. Although
there could be, as the appellant explains, a reasonable explanation as to why she11
glanced at her counsel during cross-examination, based on the appellant’s
demeanor while testifying, the administrative judge found it significant to note
this behavior in her credibility analysis, ID at 9, and the appellant fails to cite
sufficiently sound reasons to discount these findings, PFR File, Tab 1 at 22-24;
Haebe, 288 F.3d at 1301. Thus, we reject the appellant’s arguments concerning
the administrative judge’s assessment of her demeanor. PFR File, Tab 1 at 22-27.
The appellant failed to establish that the agency violated her due process rights .
The appellant reiterates on review her argument that the deciding official
considered ex parte information, i.e., his understanding, albeit mistaken, that the
appellant was guilty of the criminal charges, in making his decision to remove the
appellant. PFR File, Tab 1 at 25. Procedural due process guarantees are not met
if the employee has notice of only certain charges or portions of the evidence and
the deciding official considers new and material information; therefore, it is
constitutionally impermissible to allow a deciding official to receive additional
material information that may undermine the objectivity required to protect the
fairness of the process. Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368, 1376 (Fed. Cir. 1999). The appellant essentially contends that the
deciding official considered the substantive criminal charges against her, as
opposed to her failure to disclose those charges on her OF-306, as an aggravating
factor in determining the reasonableness of the penalty. PFR File, Tab 1
at 24-27.
Although the deciding official testified that he “misspoke” in his deposition
when he made the above-cited testimony, the appellant contends on review that
this admission by the deciding official indicates that he relied heavily on his
mistaken belief in deciding to remove her. Id. at 26. The administrative judge
found otherwise, determining that regardless of this mistaken belief, the deciding
official had consistently and credibly avowed on the witness stand that his
decision to remove the appellant was solely based on her failure to disclose the
criminal charges on her OF-316. ID at 10-11. Nevertheless, the appellant’s12
challenge on review to the administrative judge’s finding that the deciding
official’s testimony was fluid and forthright actually challenges his deposition
testimony, not his testimony before the administrative judge, whose finding on
this point was limited to the testimony before her. Id.; PFR File, Tab 1 at 27.
Moreover, the appellant mischaracterizes the deciding official’s deposition
testimony as detailed and unequivocal concerning his deliberation on the
appellant’s removal. PFR File, Tab 1 at 26-27. By contrast, the deciding official
could not even identify the criminal charges in his deposition, notwithstanding his
mistaken impression that the appellant already had been found guilty. IAF,
Tab 12 at 11-12. Instead, the excerpt of the deciding official’s testimony in the
record repeatedly shows that his deliberation on the proposed removal concerned
the lack of candor charge, and his testimony regarding the criminal charges
concerned the fact that the charges existed, which is pertinent to the charged
misconduct, as opposed to the details of substantive crime for which the appellant
was charged. Id. at 11-15. Thus, we find that the appellant failed to establish
that the administrative judge erred in rejecting her claim that the agency violated
her due process rights.
The penalty of removal is within the bounds of reasonableness.
Lastly, although the appellant does not raise the issue on review, we
address the appellant’s contention below that that agency imposed a disparate
penalty. IAF, Tab 7 at 4. The administrative judge found that the sole
comparator the appellant identified was a Martinsburg employee who, in addition
to a lack of candor charge, was also charged with failure to follow leave
requesting procedures, unauthorized absence, and failure to follow sick leave
certification requirements. ID at 14; IAF, Tab 6 at 41-44. Moreover, the
administrative judge noted that the appellant failed to identify what ultimately
happened to the comparator, making it impossible to do a proper penalty analysis
concerning that action under Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981). ID at 14. Although we agree with the administrative judge’s13
determination that there was insufficient similarity between the lack of candor
charges in the two adverse actions to establish the appellant’s disparate penalty
defense, she performed her analysis under Lewis v. Department of Veterans
Affairs, 111 M.S.P.R. 388, ¶ 8 (2009) (finding that the agency must prove a
legitimate reason for a difference in penalty by preponderant evidence). ID
at 13-14. In Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14, the Board
overruled Lewis to the extent that it deviated from our reviewing court’s decision
in Facer v. Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988)
(finding that the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees differently). Nevertheless, because we agree with
the administrative judge that the lack of candor charge that the appellant’s
purported comparator faced, concerning 2 to 3 hours of time to appear in court as
a witness on an agency matter, was dissimilar to the lack of candor charge in this
appeal, we agree with her determination on the appellant’s disparate penalty
defense. Moreover, because the administrative judge in this appeal, consistent
with the Board’s decision in Singh, stated that she would have examined the
pertinent Douglas factors in the comparator’s case had the appellant provided
sufficient information for her to do so, Singh, 2022 MSPB 15, ¶¶ 17-18, any error
in the administrative judge’s analysis is harmless, Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981) (finding that an administrative judge’s
procedural error is of no legal consequence unless it is shown to have adversely
affected a party’s substantive rights).
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
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.14
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular15
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 16
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court17
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. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Akamanti_Jeanie_N_PH-0752-17-0412-I-1 Final Order.pdf | 2024-03-21 | JEANIE N. AKAMANTI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-17-0412-I-1, March 21, 2024 | PH-0752-17-0412-I-1 | NP |
1,981 | https://www.mspb.gov/decisions/nonprecedential/Bullard_Bridget_AT-3443-18-0329-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIDGET BULLARD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-18-0329-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bridget Bullard , West Palm Beach, Florida, pro se.
Heather G. Blackmon , 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 for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant, a GS-6 Civilian Pay Technician, received a written
admonishment for unprofessional and inappropriate conduct. Initial Appeal File
(IAF), Tab 1 at 1, 6-7. The appellant filed a Board appeal challenging the action,
and she requested a hearing. Id. at 2-3. On her Board appeal form, the appellant
claimed that the agency had committed a prohibited personnel practice by issuing
the admonishment. Id. at 3.
The administrative judge issued a show cause order explaining that the
Board may not have jurisdiction over this appeal because a letter of
admonishment is not one of the personnel actions listed in 5 U.S.C. § 7512. IAF,
Tab 5 at 1. The administrative judge further explained that, while the Board
might have jurisdiction over such an action in the context of an Individual Right
of Action (IRA) appeal asserting that the action was taken in reprisal for
protected whistleblowing disclosures, the appellant made no such claim in her
appeal and indicated on her Board appeal form that she had not filed a complaint
with the Office of Special Counsel (OSC) on any such claim, which is a
prerequisite for filing an IRA appeal with the Board.2 Id. at 3 n.1; IAF, Tab 1
2 Under the Whistleblower Protection Enhancement Act, the Board has jurisdiction over
an IRA appeal if the appellant has exhausted her administrative remedies before OSC2
at 4. Accordingly, the administrative judge ordered the appellant to submit
evidence and argument sufficient to raise allegations of fact which, if proven,
would establish that she was subjected to a personnel action within the Board’s
jurisdiction. IAF, Tab 5 at 3. The administrative judge also stated that if the
appellant intended to assert a whistleblower reprisal claim, she must so state in
her response to the order. Id. at 3 n.1.
In response to the order, the appellant stated that she was unable to show
that the Board has jurisdiction over her admonishment. IAF, Tab 6. She did not
express an intention to assert a whistleblower reprisal claim. Id.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that an admonishment is not directly
appealable to the Board and that the appellant did not allege that she was
subjected to any action which would be appealable to the Board. IAF, Tab 8,
Initial Decision (ID) at 2. The administrative judge further found that, although
the appellant alleged in her appeal that the agency committed an unspecified
prohibited personnel practice, in the absence of an otherwise appealable action,
the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; see
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,
871-73 (D.C. Cir. 1982).
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 3, and the appellant has filed a reply to the
agency’s response. PFR File, Tab 4.
and makes nonfrivolous allegations of the following: (1) she made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 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)(2)(A). Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016). 3
ANALYSIS
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An admonishment is not an
adverse action under 5 U.S.C. chapter 75, over which the Board has jurisdiction.
5 U.S.C. § 7512.
On review, the appellant argues that, although an admonishment is not one
of the actions listed in 5 U.S.C. § 7512, it falls within the Board’s jurisdiction
and is directly appealable to the Board because it qualifies as “other disciplinary
or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii).3 PFR File, Tab 1 at 4.
This argument is unavailing. The fact that an admonishment qualifies as
“other disciplinary or corrective action” under 5 U.S.C § 2302(a)(2)(A)(iii), and
therefore meets the definition of “personnel action” set forth in 5 U.S.C.
§ 2302(a)(2)(A), is relevant to the jurisdictional issue in an IRA appeal.4 See
Massie v. Department of Transportation , 114 M.S.P.R. 155, ¶ 13 (2010)
(reflecting that an admonishment is a personnel action for purposes of an IRA
appeal). It has no bearing on whether the Board has jurisdiction over this appeal,
however, as it is undisputed that this is not an IRA appeal. In that regard, we
note that, in her reply to the agency’s response to her petition for review, the
appellant states that this is not an IRA appeal, she is not alleging whistleblower
retaliation, and she has never contacted OSC. PFR File, Tab 4 at 4. Therefore,
although we agree with the appellant that an admonishment qualifies as an “other
disciplinary or corrective action” under 5 U.S.C 2302(a)(2)(A)(iii), contrary to
3 Although the appellant raises this argument for the first time on review, we consider it
because it implicates the Board’s jurisdiction. The issue of jurisdiction is always before
the Board and may be raised by either party or sua sponte by the Board at any time
during a Board proceeding. Zajac v. Department of Agriculture , 112 M.S.P.R. 160, ¶ 8
(2009).
4 As previously noted, to establish Board jurisdiction in an IRA appeal, the appellant
must show, inter alia, that the agency took or failed to take a personnel action as
defined by 5 U.S.C. § 2302(a). Salerno, 123 M.S.P.R. 230, ¶ 5.4
her contention on review, this does not render the admonishment directly
appealable to the Board, nor does it confer the Board with jurisdiction over this
appeal.
On review, the appellant also reasserts her argument below that the agency
committed a prohibited personnel practice (which she identifies on review as an
abuse of authority) by issuing the admonishment. PFR File, Tab 1 at 5. As
previously discussed, however, in the absence of an otherwise appealable action,
the Board lacks independent jurisdiction over such an allegation. ID at 2 n.1; see
Wren, 2 M.S.P.R. at 2.
Lastly, the appellant contends on review that this is a mixed case because
she has an equal employment opportunity case pending in conjunction with the
agency’s alleged abuse of authority. PFR File, Tab 1 at 5. A mixed case is one in
which the appellant alleges she suffered an otherwise appealable action motivated
by unlawful discrimination. Perry v. Merit Systems Protection Board , 582 U.S.
420, 431-32 (2017). An appellant may pursue such a claim by filing a formal
equal employment opportunity complaint with her employing agency followed by
an appeal to the Board, or by filing a direct appeal with the Board. Hess v. U.S.
Postal Service, 124 M.S.P.R. 40, ¶ 11 (2016). Here, because the appellant has
not alleged that she suffered an otherwise appealable action, her case is not a
mixed case over which the Board may have 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
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your 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. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Bullard_Bridget_AT-3443-18-0329-I-1__Final_Order.pdf | 2024-03-21 | BRIDGET BULLARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-18-0329-I-1, March 21, 2024 | AT-3443-18-0329-I-1 | NP |
1,982 | https://www.mspb.gov/decisions/nonprecedential/Saucier_Raymond_R_PH-0752-18-0026-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYMOND R. SAUCIER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0026-I-2
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James G. Noucas, Jr ., Esquire, Portsmouth, New Hampshire, for the
appellant.
Scott W. Flood , Esquire, Portsmouth, New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his claims under the Uniformed Services
Employment and Reemployment Rights Act (USERRA). For the reasons
discussed below, we DENY the appellant’s petition for review. Regarding the
appellant’s USERRA claim as it relates to his indefinite suspension based on 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).
2
loss of access to classified information, we AFFIRM the initial decision
AS MODIFIED to change the disposition from a dismissal for lack of jurisdiction
to a denial of his request for corrective action. In addition, we address a different
claim that the appellant raised as a violation of his rights under USERRA and
FORWARD that claim to the Northeastern Regional Office for docketing as a
new USERRA appeal.
BACKGROUND
On October 16, 2017, the appellant filed an appeal challenging the
agency’s action in indefinitely suspending him from his position as a GS-12
Information Technology Specialist, effective April 13, 2017, based on his loss of
his access to classified information. Saucier v. Department of the Navy , MSPB
Docket No. PH-0752-18-0026-I-1, Initial Appeal File (IAF), Tab 1. During
adjudication of that appeal, the administrative judge joined this appeal with one
of the appellant’s pending appeals, which raised other issues regarding his
indefinite suspension, Saucier v. Department of the Navy , MSPB Docket No. PH-
0752-17-0288-I-1. IAF, Tab 5.
On June 8, 2018, the appellant submitted as part of that appeal a new
appeal form in which he raised a claim of USERRA discrimination. IAF, Tab 6
at 4. He stated that he was a disabled veteran, and he claimed that, as a result of
animus towards him and other veterans and disabled veterans, management and
certain coworkers created a hostile work environment through their actions,
inactions, and statements. Id. at 6. In addition, he stated that the agency
discriminated against him as a veteran and a disabled veteran in job assignments
and performance evaluations, and retaliated against him for disclosures he made
about the hostile work environment and the animus that the agency expressed
towards veterans and disabled veterans. Id. He also claimed that the agency
discriminated against him as a veteran and a disabled veteran when it suspended
his access to classified information and indefinitely suspended him. Id.
3
Following this submission, the administrative judge dismissed the appeal
without prejudice, stating that it would be automatically refiled in 40 days, IAF,
Tab 7, Initial Decision at 2, which it was, Saucier v. Department of the Navy ,
MSPB Docket No. PH-0752-18-0026-I-2, Appeal File (I -2 AF) Tab 1. She then
joined the refiled appeal with the appellant’s earlier appeal, which had been
placed on suspense and which, upon joinder, became Saucier v. Department of the
Navy, MSPB Docket No. PH-0752-17-0288-I-2. I-2 AF, Tab 3. The agency then
moved that the instant USERRA appeal be dismissed for lack of jurisdiction, and
the appellant argued in opposition. I-2 AF, Tabs 5, 9. In her initial decision, the
administrative judge only addressed the appellant’s USERRA appeal regarding
the access to classified information issue and found that USERRA does not
authorize the Board to review a security clearance determination, either as an
affirmative defense in an adverse action or in a separate appeal.2 I-2 AF, Tab 10,
Initial Decision (ID) at 2. The administrative judge dismissed the appeal. ID
at 1-2.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5,
and the appellant has submitted a reply, PFR File, Tab 6.
ANALYSIS
On review, the appellant clarifies that the USERRA claim he filed was not
an affirmative defense as docketed by the Board, but rather a two-part USERRA
claim: discrimination based on veterans status in connection with the suspension
of his access to classified information and his indefinite suspension and
discrimination based on veterans status in connection with his overall work
environment. PFR File, Tab 1 at 5-6. Based on our review of the submission the
2 Although she did not explicitly so state, the administrative judge implicitly severed
this appeal from MSPB Docket No. PH-0752-17-0288-I-2. The initial decision at issue
here only addressed matters raised in MSPB Docket No. PH-0752-18-0026-I-2, and the
administrative judge continued to adjudicate MSPB Docket No. PH-0752-17-0288-I-2
after the issuance of the initial decision in this matter.
4
appellant filed on June 18, 2018, IAF, Tab 6, we agree that he indeed was raising
two separate USERRA claims, which we now address.
To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
allege that: (1) he performed duty or has an obligation to perform duty in a
uniformed service of the United States; (2) the agency denied him initial
employment, reemployment, retention, promotion, or any benefit of employment;
and (3) the denial was due to the performance of duty or obligation to perform
duty in the uniformed service. Lubert v. U.S. Postal Service , 110 M.S.P.R. 430,
¶ 11 (2009). The Board has adopted “a liberal approach in determining whether
jurisdiction exists under USERRA.” Beck v. Department of the Navy ,
120 M.S.P.R. 504, ¶ 8 (2014) (quoting Yates v. Merit Systems Protection Board ,
145 F.3d 1480, 1484 (Fed. Cir. 1998)); Fox v. U.S. Postal Service , 88 M.S.P.R.
381, ¶ 10 (2001) (finding that a claim of discrimination under USERRA should be
liberally construed).
Regarding the appellant’s USERRA claim related to the suspension of his
access to classified information and his indefinite suspension, the appellant
argues on review that the Board has jurisdiction over that claim. PFR File, Tab 1
at 8-10. Given the Board’s liberal approach to establishing USERRA jurisdiction,
the appellant may well have been able to establish Board jurisdiction, had he been
afforded the opportunity to do so.3 However, we need not remand this claim for
further adjudication because there is no set of facts under which the Board could
grant the appellant relief. USERRA does not authorize the Board to review
security clearance determinations. Wilson v. Department of the Navy ,
122 M.S.P.R. 585, ¶ 10 (2015) (citing 38 U.S.C. chapter 43, and Department of
the Navy v. Egan , 484 U.S. 518, 530 (1988)), aff’d, 843 F.3d 931 (Fed. Cir.
2016). Further, our reviewing court has held that, to consider an appellant’s
3 The administrative judge did not provide the appellant with notice of his burden to
establish jurisdiction over either of his USERRA claims. See Fox, 88 M.S.P.R. 381,
¶ 14 (explaining that an administrative judge must inform an appellant of the USERRA
burdens of proof and the different methods of proving a USERRA claim).
5
claim that the revocation of his security clearance was based on false complaints
and accusations would necessarily involve “second-guessing . . . national security
determinations” in abrogation of Egan. Wilson v. Department of the Navy ,
843 F.3d 931, 935 (Fed. Cir. 2016) (citing Kaplan v. Conyers , 733 F.3d 1148,
1155 (Fed. Cir. 2013)). Thus, the appellant in this case would be unable to
establish before the Board that the agency discriminated against him based on his
uniformed service when it denied him access to classified information and
indefinitely suspended him because of that denial. Accordingly, we modify the
initial decision to the extent that it dismissed for lack of jurisdiction the
appellant’s USERRA claim related to the suspension of his access to classified
information and his indefinite suspension, and instead deny his request for
corrective action.4
The appellant further argues on review that the administrative judge failed
to consider the other USERRA claim he raised below, which is that the agency
discriminated against him because of his uniformed service in job assignments
and performance evaluations and by creating a hostile work environment. PFR
File, Tab 1 at 6; IAF, Tab 6 at 6. Not only did the administrative judge fail to
address this claim, but she also did not inform the appellant of the statutory
burden of proving discrimination under USERRA with regard to this claim.
Accordingly, we forward the appellant’s discrimination claim to the
Northeastern Regional Office for docketing as a new USERRA appeal. In the
new appeal, the administrative judge shall inform the appellant of the methods of
proving a USERRA claim and explain the USERRA burdens of proof.
4 We note the appellant’s reliance on Staub v. Proctor Hospital , 562 U.S. 411 (2011),
for the proposition that the Board must award him damages. PFR File, Tab 1 at 8. In
Staub, the Court held a private employer may be liable under USERRA for the
discriminatory animus of supervisors that were the proximate cause of the employer’s
actions against the employee. Staub, however, does not advance the appellant’s cause
in that it does not involve the key issue in his case which is that he was indefinitely
suspended based on his lack of access to classified information, a matter which the
Board is precluded from examining.
6
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Saucier_Raymond_R_PH-0752-18-0026-I-2 Final Order.pdf | 2024-03-21 | RAYMOND R. SAUCIER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0026-I-2, March 21, 2024 | PH-0752-18-0026-I-2 | NP |
1,983 | https://www.mspb.gov/decisions/nonprecedential/Persson_Eric_D_CH-0842-19-0563-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC D. PERSSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0842-19-0563-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Asmaa Abdul-Haqq and Gedety N. Serralta-Aldrich , 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 of the initial decision, which
reversed the agency’s decision and granted the appellant’s application for
enhanced retirement credit as a law enforcement officer for the period from
July 19, 1998, to August 19, 2017. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
From July 19, 1998, to February 19, 2005, the appellant served as one of
six GS-1811-09 Criminal Investigators assigned to Fort Dix, New Jersey.
Initial Appeal File (IAF), Tab 22 at 4, Tab 7 at 18-23. On February 20, 2005, he
was assigned to the only GS-1811-11 Criminal Investigator position at Detroit
Arsenal. IAF, Tab 22 at 4, Tab 7 at 39-43. The appellant performed the same
duties in both positions. IAF, Tab 22 at 5. They were designated as law
enforcement officer (LEO) positions with special retirement credit (SRC) under
the Federal Employees’ Retirement System, and the appellant made all the
required withholdings and contributions associated with that enhanced retirement
plan.
Effective August 20, 2017, the agency reclassified the appellant’s position
as a Detective, GS-0083-08, which was not designated for LEO SRC. IAF,
Tab 22 at 4, Tab 8 at 65-72. Subsequently, on September 11, 2017, the agency
notified the appellant that neither his service as a Detective nor the periods of
service during which he was assigned as a Criminal Investigator, over 19 years of
service, would not be creditable toward retirement eligibility under SRC
provisions and that, if he believed that his positions did meet the criteria for SRC,
he could request a formal determination. IAF, Tab 7 at 5-7. The appellant’s
3
formal request for LEO SRC for the 19 years he was assigned to the positions of
Criminal Investigator was denied. IAF, Tab 6 at 24-25.
On appeal to the Board, and following the requested hearing, the
administrative judge issued a thorough and well-reasoned initial decision in
which she carefully examined and weighed the record evidence, including the
position descriptions, the appellant’s performance appraisals, and evidence as to
his actual duties. The administrative judge also duly considered the appellant’s
own testimony and that of his two, former supervisors. Employing the
“position-oriented” approach approved by our reviewing court in Watson v.
Department of the Navy , 262 F.3d 1292, 1298 (Fed. Cir. 2001), the administrative
judge found that both of the appellant’s Criminal Investigator positions were
created for the basic reason of investigating, apprehending, or detaining those
suspected or convicted of Federal offenses and that, therefore, he was entitled to
LEO SRC for the period from 1998 to 2017. IAF, Tab 27, Initial Decision (ID)
at 5-16. Accordingly, the administrative judge reversed the agency’s decision
and ordered the agency to grant the appellant’s request for enhanced
retirement credit as an LEO for service he performed from July 19, 1998,
to August 19, 2017. ID at 16.
In its petition for review, the agency argues that the administrative judge
erred in finding that the appellant proved his entitlement to LEO SRC.
Petition for Review File, Tab 1. In so doing, the agency essentially disagrees
with the way in which the administrative judge reviewed the evidence and
suggests that it should be weighed differently so as to reach a different result.
We have considered the agency’s arguments and find that it has not set forth a
basis to disturb the administrative judge’s well-reasoned findings. Campbell v.
Department of the Army , 123 M.S.P.R. 674, ¶ 10 (2016) (denying a petition for
review when a party fails to set forth a basis to disturb the administrative judge's
well-reasoned findings); see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the AJ’s findings when she
4
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 sum, we agree that the appellant has
established that the positions he encumbered for 19 years were considered and
created as LEO eligible and that the basic reasons for their existence were the
investigation, apprehension, or detention of criminals or suspects such that he is
entitled to LEO SRC for the years at issue.
ORDER
We ORDER the agency to grant the appellant enhanced retirement credit as
a law enforcement officer for the period from July 19, 1998, to August 19, 2017.
See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984).
The agency must complete this action no later than 20 days after the date of this
decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
5
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 RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Persson_Eric_D_CH-0842-19-0563-I-1__Final_Order.pdf | 2024-03-21 | ERIC D. PERSSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0842-19-0563-I-1, March 21, 2024 | CH-0842-19-0563-I-1 | NP |
1,984 | https://www.mspb.gov/decisions/nonprecedential/Sinclair_Antonio_L_AT-0752-16-0376-P-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO LAMAR SINCLAIR,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-16-0376-P-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David C. Jones , Warner Robins, Georgia, for the appellant.
Biron Ross , Warner Robins, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his motion for compensatory damages on the grounds that there was no
finding of discrimination in his underlying appeal. In his petition for review, the
appellant set forth various financial hardships he suffered as a result of the
agency’s removal action, including having to withdraw funds from his Thrift
Savings Plan account, having his home foreclosed on, and not being able to find
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
new employment. Generally, we grant 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 | Sinclair_Antonio_L_AT-0752-16-0376-P-1 Final Order.pdf | 2024-03-21 | ANTONIO LAMAR SINCLAIR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-16-0376-P-1, March 21, 2024 | AT-0752-16-0376-P-1 | NP |
1,985 | https://www.mspb.gov/decisions/nonprecedential/Ritenour_Lindsay_S_AT-315H-22-0386-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDSAY S. RITENOUR,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-315H-22-0386-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lindsay S. Ritenour , Satellite Beach, Florida, pro se.
William V. Cochrane, Jr. , and Holly L. Buchanan, Eglin Air Force Base,
Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her probationary termination for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 During the proceedings below, the appellant failed to respond to the administrative
judge’s jurisdictional orders. The appellant now raises jurisdictional arguments for the
first time in her petition for review, and she states that a hospitalization and the loss of
her house caused her failure to respond to the administrative judge’s orders below.
Petition for Review File, Tab 1 at 3, 22-29. The appellant, however, has not explained
how her hospitalization and the loss of her house caused her failure to respond to the
orders. Id. Nevertheless, we have reviewed the appellant’s new jurisdictional
arguments and conclude that she has failed to make a nonfrivolous allegation of Board
jurisdiction.
3 Following the issuance of the initial decision, 10 U.S.C. § 1599e, which subjected
individuals appointed to permanent competitive-service positions in the Department of
Defense to a 2-year probationary period, was repealed by the National Defense
Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 1106, 135 Stat. 1541,
1950. Because the change in law applied only to appointments made on or after
December 31, 2022, it does not affect the outcome of this case. See Bryant v.
Department of the Army , 2022 MSPB 1, ¶¶ 8-9.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Ritenour_Lindsay_S_AT-315H-22-0386-I-1__Final_Order.pdf | 2024-03-21 | LINDSAY S. RITENOUR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-315H-22-0386-I-1, March 21, 2024 | AT-315H-22-0386-I-1 | NP |
1,986 | https://www.mspb.gov/decisions/nonprecedential/Ybarra_Jose_C_CH-0752-17-0422-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE C. YBARRA,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-17-0422-I-2
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Chad Y. Tang , Esquire, Washington, D.C., for the agency.
Joy E. Williams , Chicago, 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 appellant’s removal for off-duty misconduct. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED in paragraph 11 below regarding the issue of nexus, we
AFFIRM the initial decision.
BACKGROUND
¶2The appellant was a preference eligible GS-13 Special Agent for the
agency’s Federal Bureau of Investigation (FBI). Ybarra v. Department of Justice ,
MSPB Docket No. CH-0752-17-0422-I-2, Appeal File (I-2 AF), Tab 5 at 16. The
appellant worked cases involving crimes against children and had done so for
10 years at the time of the events underlying this appeal. I-2 AF, Tab 13 at 23.
On February 15, 2017, the agency’s Office of Professional Responsibility (OPR)
proposed the appellant’s removal based on one charge of unprofessional off-duty
conduct. I-2 AF, Tab 7 at 17-38. The agency specified that, during the past year,
the appellant had made persistent and inappropriate advances toward two female
employees at two different stores (a cashier at a Meijer’s grocery store and a
service worker at a Dairy Queen), both of whom had separately complained to the
local police about the appellant’s conduct. Id. at 20-23, 27-28, 31-32. OPR
brought four other charges based on additional alleged misconduct, including the
appellant’s failure to report contact that he had with the police concerning the two
store employees, lack of candor with regard to these same incidents, several
unwanted sexual advances toward colleagues, profane outbursts during a firearms2
training session, the appellant’s role in a domestic disturbance between his son’s
mother and a female neighbor with whom the appellant was having a relationship,
and unauthorized use of an FBI database to obtain the telephone number of a
former female investigation subject. Id. at 18-20, 26-30. OPR, however, did not
consider these four other charges in proposing the appellant’s removal. Rather, it
considered these other charges individually, stating that it would have proposed
various levels of discipline for each of them but did not do so in light of the
proposed removal for unprofessional conduct off-duty. Id. at 32-35.
¶3On May 19, 2017, after the appellant responded to the proposal, the
Assistant Director of OPR issued a decision removing the appellant. I-2 AF,
Tab 5 at 17-40. Consistent with the proposal letter, the deciding official
considered all of the alleged instances of misconduct in isolation, determining
that the inappropriate encounters with the store employees warranted removal,
and in light of that, the other alleged offenses did not warrant separate sanctions.
Id. at 34-37.
¶4The appellant filed a Board appeal contesting the merits of the agency’s
action. Ybarra v. Department of Justice , MSPB Docket No. CH-0752-17-0422-
I-1, Initial Appeal File (IAF), Tab 1. Shortly thereafter, the administrative judge
dismissed the appeal without prejudice to allow the appellant to pursue an internal
appeal to the agency’s Disciplinary Review Board. IAF, Tabs 8-9. The
Disciplinary Review Board affirmed the removal, and the appellant refiled his
appeal. I-2 AF, Tab 1, Tab 5 at 8-10. He waived his right to a hearing. I-2 AF,
Tab 17 at 4.
¶5After the close of the record, the administrative judge issued an initial
decision sustaining the removal. I-2 AF, Tab 22, Initial Decision (ID). She found
that the agency proved its charge of unprofessional conduct off-duty, ID at 11-14,
that the agency established a nexus between that conduct and the efficiency of the
service, ID at 14-17, and that the agency showed that the removal penalty was
reasonable, ID at 17-24. The appellant has filed a petition for review, disputing3
the administrative judge’s nexus and penalty analyses. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶6In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken for
such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(a)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). On petition for review, the appellant does not dispute that
the agency proved its charge of unprofessional conduct off-duty. For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency proved its charge, and because the appellant does not challenge this
finding on review, we do not address it here. ID at 11-14; see Dobert v.
Department of the Navy , 74 M.S.P.R. 148, 150 n.1 (1997); 5 C.F.R. § 1201.114(b)
(“The Board normally will consider only issues raised in a timely filed petition or
cross petition for review.”). The appellant does, however, challenge that
administrative judge’s findings on nexus and penalty. We address those issues in
turn.
The agency established nexus.
¶7Not every instance of off-duty misconduct bears a nexus to the efficiency of
the service. An agency may show nexus between off-duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct adversely
affects the appellant’s or coworkers’ job performance or the agency’s trust and
confidence in the appellant’s job performance; or (3) preponderant evidence that
the misconduct interfered with or adversely affected the agency’s mission.4
Hoofman v. Department of the Army , 118 M.S.P.R. 532, ¶ 16 (2012), aff’d,
526 F. App’x 982 (Fed. Cir. 2013).
¶8In this case, the administrative judge found that the appellant’s off-duty
conduct was not sufficiently egregious to carry a presumption of nexus. ID at 15.
Nevertheless, she found that the agency established nexus because the appellant’s
misconduct contravenes the agency’s primary mission to protect people. ID at 16.
She found that this was particularly so given that the Dairy Queen Service worker
was 16 years old, and the appellant was specifically tasked with enforcing Federal
statutes to protect children under the age of 18. ID at 16. She further found that
the appellant’s misconduct adversely affected the trust and confidence of his
supervisors and that several local law enforcement agencies indicated that they no
longer wished to work with the appellant. ID at 17.
¶9On petition for review, the appellant argues that his off-duty conduct
consisted of mere flirtation and was not so serious as to bear a nexus to his
employment. PFR File, Tab 1 at 10. As we read the appellant’s argument, it
appears to pertain to whether a presumption of nexus should arise. Id. at 9-10.
However, as explained above, the administrative judge already found that there
was no presumption of nexus. ID at 15. The appellant does not address the
connections that the administrative judge found between his misconduct and the
agency’s mission, the trust and confidence of his supervisors, or the agency’s
relationship with local law enforcement. ID at 16-17. We therefore find that the
appellant’s arguments provide no basis to disturb the initial decision.
¶10Having reviewed the record and the administrative judge’s analysis,
we agree with her that the agency established a nexus between the appellant’s
off-duty misconduct and the efficiency of the service. First, we agree with the
administrative judge that the agency established nexus by showing that the
appellant’s conduct undermined his supervisors’ trust and confidence in him and
his ability to perform his duties as an FBI Special Agent. ID at 17; I-2 AF, Tab 75
at 31-32; see Adams v. Defense Logistics Agency , 63 M.S.P.R. 551, 555-56
(1994); Royster v. Department of Justice , 58 M.S.P.R. 495, 499-500 (1993).
¶11Second, we agree that the agency has established nexus by showing that the
appellant’s conduct adversely affected its mission. Specifically, the appellant’s
interactions with the two store employees came to the attention of the Charlotte,
Michigan Police Department, which expressed discomfort at continuing to work
with the appellant. ID at 17; I-2 AF, Tab 7 at 31, Tab 10 at 62-68. Thompson v.
Department of Justice , 51 M.S.P.R. 43, 50 (1991) (finding removal appropriate
where, among other things, the appellant’s off-duty misconduct adversely affected
the agency’s relationship with local law enforcement agencies). Furthermore, we
agree with the administrative judge that the appellant’s persistent and
inappropriate advances toward a 16-year-old Dairy Queen employee were directly
opposed to the agency’s mission of preventing the exploitation of minors. ID
at 16; see Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987) (finding
that off-duty misconduct that is directly opposed to the agency’s mission has a
nexus to the efficiency of the service on the basis that it adversely affects the
agency’s mission); see also Allred v. Department of Health and Human Services ,
786 F.2d 1128, 1131-32 (Fed. Cir. 1986) (finding nexus based on the appellant’s
conviction for off-duty child molestation, given that the mission of the agency
was to administer health and social services to disadvantaged persons like the
victim of the appellant’s offense). Finally, we modify the initial decision to add
that the appellant’s persistent and inappropriate advances toward the Meijer’s
cashier adversely affected the agency’s reputation because that individual was
aware that the appellant was an FBI agent. I-2 AF, Tab 10 at 66; see Jones v.
Government Printing Office , 13 M.S.P.R. 365, 369 (1982) (finding nexus where
the appellant’s off-duty misconduct affected the public reputation of the agency). 6
The removal penalty is within the tolerable limits of reasonableness.
¶12Because 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 of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Id. In
determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility but to assure that
management judgment has been properly exercised. Id. Thus, the Board will
disturb an agency’s chosen penalty only if it finds that the agency failed to weigh
relevant factors or that the agency’s judgment clearly exceeded the limits of
reasonableness. Id.
¶13In this case, the administrative judge found that the appellant’s offenses
demonstrated a serious lack of judgment, especially considering that the appellant
harassed a 16-year-old service worker at the Dairy Queen a mere 3 months after
the local police had warned him about bothering a young cashier at Meijer’s.
ID at 18-19. In light of the agency’s mission to protect children, she considered
the Dairy Queen service worker’s age to be an aggravating factor. Id. She also
found that the damage that the appellant’s conduct caused to the agency’s
relationship with local law enforcement was an aggravating factor and that the
appellant’s status as a law enforcement officer weighed heavily against him. ID
at 19. The administrative judge further found that the appellant had been
repeatedly warned about such behavior in the past, to include a 45-day suspension
in 2003, for, among other things, making sexually inappropriate remarks to
female colleagues. ID at 19-21; I-2 AF, Tab 11 at 82-88. She found mixed
evidence relating to the appellant’s rehabilitative potential, including on the one7
hand the appellant’s acknowledgment of wrongdoing and expressions of remorse,
and on the other hand the absence of any concrete steps to amend his behavior
and his attempt to deflect responsibility for his own misconduct onto the
16-year-old Dairy Queen service worker and her mother. ID at 21-23.
Considering these facts together, the administrative judge concluded that the
appellant had poor rehabilitative potential. ID at 23. She also found that removal
fell within the prescribed range for the charged offense, according to section 5.21
of OPR’s Offense Code, which covers off-duty misconduct. ID at 20. The
administrative judge acknowledged the appellant’s 18 years of service with the
agency, his excellent job performance, and the difficult personal circumstances
that he was facing at the time, but she found that the deciding official considered
these mitigating factors and that they did not provide a sufficient basis to disturb
the penalty determination. ID at 19-20, 23-24.
¶14On petition for review, the appellant notes that, although the agency
charged him with a number of offenses, it based its action solely on the charge
relating to his interactions with the two female store employees. PFR File, Tab 1
at 5. In other words, “[a] separate selected penalty was imposed for each offense
code violation, and the sanction of removal was selected only for the Offense
Code 5.21 violation.” Id. He asserts that the administrative judge failed to
address this argument below. Id. The appellant asserts that the standard penalty
for a 5.21 violation is a 5-day suspension and that the agency imposed the
removal penalty because it considered a 45-day suspension 14 years prior to
constitute “serious aggravation.” He argues, however, that this prior discipline
was too remote in time to constitute an aggravating factor. PFR File, Tab 1
at 5-6; I-2 AF, Tab 5 at 32-33. He argues that the deciding official considered
that his behavior occurred over an extended period of time and that there was a
concern about the appellant’s reputation with the local law enforcement
community, but she did not consider these other factors to be “serious.” Id. at 7.
The appellant also emphasizes the mitigating factors in this case, particularly his8
excellent performance history, and argues that his past performance constitutes
evidence of his rehabilitative potential. Id. at 8.
¶15As an initial matter, we agree with the appellant that the agency in this case
took an unusual approach to its disciplinary action. PFR File, Tab 1 at 5. As far
as we are aware, the universal practice in Federal employee discipline has always
been to consider multiple charges in the aggregate. See, e.g., Brownell v. United
States, 164 Ct. Cl. 406, 407 (1964); Elchibegoff v. United States , 123 Ct. Cl. 709
(1952); Lellmann v. United States , 37 Ct. Cl. 128, 131-32 (1902); Bartlett v. U.S.
Postal Service, 12 M.S.P.R. 225, 226 (1982); Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 3 (2016). The agency in this case took the
opposite approach, assessing each charge in isolation and proposing the
appellant’s removal based solely on what it considered to be the most serious one.
See supra ¶ 2. Notwithstanding, the Board is required to review the agency’s
decision in an adverse action solely on the grounds invoked by the agency; the
Board may not substitute what it considers to be a more adequate or proper basis.
Byers v. Department of Veterans Affairs , 89 M.S.P.R. 655, ¶ 22 (2001). Because
the agency has expressly chosen to overlook the large majority of misconduct
alleged in its notice of proposed removal, we base our decision solely on the
single charge of unprofessional conduct off-duty. That being said, we disagree
with the appellant that the administrative judge failed to consider this in reaching
her decision. PFR File, Tab 1 at 5. The administrative judge explicitly noted that
the four remaining charges did not figure into the removal.2 ID at 3-9. Nor is
there any indication that the administrative judge or the agency considered these
2 The administrative judge stated that the agency imposed separate suspensions based on
the four remaining charges. ID at 4, 6, 8-9. This finding does not appear to be
supported by the record, given that OPR stated that it “would normally propose”
suspensions for the other four charges, but was “not imposing a separate sanction” in
this case in light of the proposal to remove. IAF, Tab 7 at 32-35. In any event, we find
that this issue is immaterial because the only matter before the Board is the appellant’s
removal.9
matters in their penalty analyses. ID at 17-24; IAF, Tab 5 at 32-37, Tab 7
at 30-35.
¶16We next address the agency’s table of penalties as contained in OPR’s
Offense Code. Despite its heavy use of the Offense Code in structuring this
adverse action, the agency has not submitted a copy of it for the record.
Nevertheless, the agency’s description of what the Code contains does not appear
to be in dispute. According to the agency, section 5.21 of the Offense Code
provides that an employee is prohibited from:
[e]ngaging in conduct, while off duty, which dishonors, disgraces, or
discredits the FBI; seriously calls into question the judgment or
character of the employee; or compromises the standing of the
employee among his peers or his community.
IAF, Tab 7 at 27. The Code further states that the “standard penalty” for violating
section 5.21 is a 5-day suspension, although the full range of penalties, from oral
reprimand to removal, is available depending on the circumstances. Id. at 31.
The appellant is correct that the Offense Code is written so as to make a 5-day
suspension the baseline penalty for section 5.21 off-duty misconduct. PFR File,
Tab 1 at 5-6. However, we do not find this generic provision or its 5 -day
“standard penalty” particularly instructive as to what penalty is appropriate under
the specific facts of this case. The Board will review an agency -imposed penalty
only to determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness . See Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 307 (1981) (finding that agency tables
of penalties should not be applied so inflexibly as to impair consideration of other
factors relevant to the individual case). We do find, however, that because the
removal penalty is available for a section 5.21 violation, the agency is not
constrained by the Offense Code from removing the appellant.
¶17Regarding the appellant’s disciplinary record, the administrative judge
acknowledged but rejected the appellant’s argument that his 2003 suspension
was too remote in time to be considered an aggravating factor in his10
2017 removal. ID at 19. On petition for review, the appellant disputes this
finding, relying on Kehrier v. Department of Justice , 27 M.S.P.R. 477 (1985), and
Bennett v. Department of Transportation , 15 M.S.P.R. 686 (1983), for the
proposition that discipline more than 10 years old is not probative in a penalty
analysis. PFR File, Tab 1 at 6 7. In Kehrier, the presiding official found that the
appellant’s suspension 10 years prior was too remote in time to be considered in
assessing the penalty for the adverse action under appeal. 27 M.S.P.R. at 479-81.
In addressing this issue, the Board stated that the suspension “may have been
deemed too remote in time” but that the issue of prior discipline was immaterial
to the outcome of the appeal. Kehrier, 27 M.S.P.R. at 480 n.1. Thus, the Board
in Kehrier did not directly address whether the appellant’s prior discipline was, in
fact, too remote in time to consider, and we find that this case lends weak support
to the appellant’s argument. In Bennett, the appellants argued that they were
treated disparately from individuals who committed similar misconduct 10 years
prior, but the Board found that the prior incident was too remote in time to
constitute a substantially similar situation. 15 M.S.P.R. at 687. We find that
Bennett is inapposite because it concerns a different penalty factor than the one at
issue here, i.e., disparate penalty rather than disciplinary record. See generally
Douglas, 5 M.S.P.R. at 305-06.
¶18The agency counters the appellant’s argument, relying on Lewis v.
Department of the Air Force , 51 M.S.P.R. 475 (1991). PFR File, Tab 3 at 11-12.
In Lewis, the administrative judge found that a suspension that occurred
2 1/2 years prior was too remote in time to be considered an aggravating penalty
factor, but the Board disagreed. 51 M.S.P.R. at 485. The Board explained that it
would discount prior discipline if there were an agency rule prohibiting
consideration of such matters beyond a certain period of time, but the applicable
rule in that case only barred consideration after 3 years.3 Id. We agree with the
3 There does not seem to be any agency rule in this case that would prohibit
consideration of the appellant’s 2003 suspension.11
agency that the language in Lewis seems to suggest that passage of time can never
be a sufficient reason by itself to discount prior discipline, but we also agree with
the appellant that Lewis is distinguishable from the instant appeal on the facts
because a much greater amount of time had passed since the suspension at issue
here than the one at issue in Lewis. PFR File, Tab 1 at 7.
¶19Having considered the parties’ arguments and the relevant case law, we find
that it was permissible for the agency to consider the appellant’s 2003 suspension
as an aggravating factor but that the passage of time lessens its import. Although
none of the case law seems to bar consideration of prior discipline due merely to
passage of time, we find that passage of time may go to the weight that the prior
discipline should be accorded, along with the severity of the prior discipline and
whether the current disciplinary action is being taken for similar reasons. See
Boscoe v. Department of Agriculture , 54 M.S.P.R. 315, 326 (1992) (noting that
the appellant had been suspended “[j]ust six months prior to the offenses involved
in this appeal”); Gleason v. Department of the Army , 38 M.S.P.R. 547, 549 (1988)
(affirming the initial decision in which the administrative judge found that the
seriousness of the appellant’s offense was greatly aggravated by his recent prior
disciplinary record for similar misconduct); Griffin v. Department of the Army ,
15 M.S.P.R. 738, 740 (1983) (noting that the appellant had been suspended twice
within the previous 5 months for the same offense). In this case, we find that the
appellant’s prior discipline was serious – a 45-day suspension with an explicit
warning that it was his “second and final notice that offensive interpersonal
interactions will not be tolerated by the Bureau.” I-2 AF, Tab 11 at 82, 85. In
addition, the prior suspension was based largely on the same general type of
behavior underlying the removal at issue here, i.e., inappropriate comments to
female coworkers. Id. at 83-84. Therefore, notwithstanding the significant
passage of time, we agree with the administrative judge that the agency did not
abuse its discretion in giving the appellant’s 2003 suspension significant weight
as an aggravating factor. 12
¶20Regarding the remaining penalty factors, although we agree with the
appellant that he has had excellent work performance, we do not agree that
this speaks strongly to his rehabilitative potential. PFR File, Tab 1 at 8; see
McCreary v. Office of Personnel Management , 27 M.S.P.R. 459, 462 (1985)
(finding that, although the appellant had good work performance, he lacked
rehabilitative potential). The charged offense does not relate to the appellant’s
performance in his position, but rather to his interpersonal conduct outside the
workplace. IAF, Tab 7 at 27-28, 31-32. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant has exhibited
poor rehabilitative potential. ID at 21-23. In particular, we find the appellant’s
response to the notice of proposed removal to be disturbing where he suggests
that, had the Dairy Queen service worker’s mother called him instead of the
police, he would have known whether this girl was having issues that were
causing her to “engage superfluously” with him and he could perhaps have been
recruited as a father figure or “standby babysitter.” ID at 22-23; IAF, Tab 5
at 29, 56. This response exhibits deflection, denial, and the appellant’s latent
wish that he could have continued to pursue a relationship with this girl, none of
which bode well for his rehabilitative potential. It also exhibits the appellant’s
lack of appreciation for the seriousness of his misconduct. He continues to
characterize his actions as “off-duty flirtation,” PFR File, Tab 1 at 10, but based
on the undisputed facts as set forth in the relevant police reports, his behavior
seems more akin to stalking or harassment, a fact that he still does not seem to
understand.4 IAF, Tab 10 at 85-89.
¶21In light of all the pertinent penalty factors, including the troubling and
repeated nature of the appellant’s offenses, their relationship to the appellant’s
duties and responsibilities, the appellant’s multiple warnings about his
inappropriate conduct towards women, his status as a law enforcement officer, the
4 We note that even unwanted “flirtation” does not typically result in the recipient
seeking protection from the police, as occurred twice in this case within the space of a
few months. 13
effect of the appellant’s conduct on the reputation of the agency and its
relationship with the local law enforcement community, the appellant’s personal
stresses and good performance history, and the deciding official’s consideration
of the same, we agree with the administrative judge that there is no basis to
mitigate the penalty. ID at 17-24; IAF, Tab 5 at 32-34; see Douglas, 5 M.S.P.R.
at 306.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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.14
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,15
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 16
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Ybarra_Jose_C_CH-0752-17-0422-I-2__Final_Order.pdf | 2024-03-21 | JOSE C. YBARRA v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-17-0422-I-2, March 21, 2024 | CH-0752-17-0422-I-2 | NP |
1,987 | https://www.mspb.gov/decisions/nonprecedential/Wiggins_Precious_I_NY-0752-17-0167-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PRECIOUS I. WIGGINS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-17-0167-I-2
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Precious I. Wiggins , Wallkill, New York, pro se.
Beverlei E. Colston , Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that 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 initial decision, the administrative judge sustained the appellant’s
removal from her Deportation Officer position upon finding that she failed meet a
required condition of employment when she failed to successfully complete the
Basic Immigration Enforcement Training Program (basic training). In her
petition for review, the appellant asserts that the removal action constituted
retaliation for filing an equal employment opportunity (EEO) complaint. Petition
for Review (PFR) File, Tab 2 at 1. She also may be attempting to argue on
review that she was treated more harshly than employee B because of her sex. Id.
at 4. However, the appellant did not raise any affirmative defenses before the
administrative judge. Because the appellant has not shown that she previously
was unaware of the basis for raising a claim of retaliation and discrimination, the
Board will not consider her claims now. Walker-King v. Department of Veterans
Affairs, 119 M.S.P.R. 414, ¶ 15 (2013); Vazquez v. U.S. Postal Service ,
114 M.S.P.R. 264, ¶ 8 n.3 (2010).
The appellant also asserts that the deciding official offered her a
reassignment to an Enforcement Removal Assistant (ERA) position, which was
not a law enforcement position and did not require completion of basic training,
but he withdrew the offer when he learned that the appellant had filed an EEO
complaint. PFR File, Tab 2 at 1. There is no evidence to corroborate this2
assertion. In fact, the deciding official testified without rebuttal at the hearing
that the appellant, through her union representative, rejected the offer of
reassignment on the basis that she intended to challenge her removal through the
EEO process. Hearing Compact Disc (HCD) (testimony of the deciding official).
The appellant further asserts on review that the administrative judge erred
by failing to consider all of the evidence of record, particularly that pertaining to
her disparate penalty argument, and that this deprived her of a fair and impartial
hearing. PFR File, Tab 2 at 3-4. 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).
The appellant also argues that other employees received better treatment
than she did when they failed to pass the required training. PFR File, Tab 2
at 1-2. In Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13, the Board found
that, when analyzing disparate penalty claims, “[t]he universe of potential
comparators . . . should be limited to those employees whose misconduct and/or
other circumstances closely resemble those of the appellant.” As to the
appellant’s allegation that the agency should have reassigned her to an ERA
position, as it did with employee B, we find that, even assuming that the appellant
and B are similarly situated for purposes of a disparate penalty claim, the agency
treated them the same by offering ERA positions to both of them. The appellant
also alleges that employee C was permitted a third attempt to pass basic training
and she should have been afforded an additional attempt as well. PFR File, Tab 2
at 1. According to the hearing testimony of the Immigration and Customs
Academy Director, however, employee C was afforded a third attempt pursuant to
the terms of a settlement agreement. HCD (testimony of the Immigration and
Customs Academy Director). Therefore, we find that employee C is not an
appropriate comparator. . 3
Further, the appellant argues that, when she failed to complete the 1.5 mile
run in 14:30 after her second attempt, her training was terminated and she was
returned to her duty station to face eventual removal, whereas six peers from her
training class who also finished the 1.5 mile run with times over 14:30 were
permitted to remain at the Academy and complete training. PFR File, Tab 2 at 2.
However, the Immigration and Customs Academy Director testified that the six
identified employees were all on their first attempt and were only required to
finish the 1.5 mile run in 16:30 to continue in basic training, whereas the
appellant was on her second attempt and was required to complete the run in the
faster time. HCD (testimony of the Immigration and Customs Academy
Director); Wiggins v. Department of Homeland Security , MSPB Docket No.
NY-0752-17-0167-I-2 (AF-2), Tab 8 at 130-31. Accordingly, because the
appellant failed to meet the required time after two attempts, the agency’s policy
required it to terminate her training and initiate removal procedures. Id. at 131,
138. Thus, the appellant was not situated similarly to the six peers to whom she
compares herself.2
The appellant further asserts that she entered into an October 13, 2015
employment contract with the agency under which terms she was not required to
undergo “any additional training, medical and or [sic] fitness test.” PFR File,
Tab 2 at 2. Because the appellant stipulated that the successful completion of
basic training was a requirement of her position, her argument that she was not
required to complete basic training is without merit. AF-2, Tab 19 at 2
(Stipulations, ¶¶ 2-3); see 5 C.F.R. § 1201.63 (stating that a stipulation of fact
satisfies a party’s burden of proving the fact alleged).
Finally, the appellant contends that, because she was initially hired as an
Immigration Enforcement Agent (IEA) and then promoted into a Deportation
2 The appellant also suggests that she “was held to the Immigration Enforcement Agent
standard that was obsolete,” but this is not true. PFR File, Tab 2 at 2. Both positions
required completion of the same basic training program, for which the physical abilities
standards had been in place since 2006. AF-2, Tab 8 at 129.4
Officer position when the agency began abolishing the IEA career path, she
should have been afforded two attempts as an IEA and then two further attempts
as a Deportation Officer, for a total of four attempts to pass basic training. PFR
File, Tab 2 at 1-2. She has identified no provision in the agency policy that
would have permitted this.
Accordingly, the initial decision is affirmed.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Wiggins_Precious_I_NY-0752-17-0167-I-2__Final_Order.pdf | 2024-03-21 | PRECIOUS I. WIGGINS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-17-0167-I-2, March 21, 2024 | NY-0752-17-0167-I-2 | NP |
1,988 | https://www.mspb.gov/decisions/nonprecedential/Lam_Dickie_T_PH-0752-22-0250-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DICKIE T. LAM,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-0752-22-0250-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karen Weisbord , Philadelphia, Pennsylvania, for the appellant.
Laura Donohue-Liban , George Johnson , Ronetia Douglas and
Jayne T. Haiber , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which mitigated the appellant’s removal
to a 60-day suspension without pay. Generally, we grant petitions such as these
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and cross
petition for review, and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2Prior to his removal, the appellant was a GS-12 Customs and Border
Protection Officer for the agency’s U.S. Customs and Border Protection (CBP)
division stationed in Philadelphia, Pennsylvania. Initial Appeal File (IAF), Tab 6
at 68. On September 12, 2020, the appellant, while on duty, in uniform and in a
marked CBP vehicle, made a traffic stop on the Walt Whitman Bridge at the
border of Pennsylvania and New Jersey. Id. at 164-65. The appellant notified his
supervisor of the incident after he returned to his duty station, IAF, Tab 1 at 17,
and his supervisor notified agency leadership, IAF, Tab 6 at 211. Shortly
thereafter, the agency found that the appellant’s statement to his supervisor
conflicted with the police report, and the Office of Professional Responsibility
(OPR) initiated an investigation into the traffic stop. IAF, Tab 6 at 198. At the
conclusion of the investigation, OPR determined that the appellant made an
unauthorized traffic stop and provided conflicting accounts of the stop to the
agency, but did not knowingly provide false or misleading information to the
agency. Id. at 178-96.
3
¶3On February 18, 2022, the agency proposed to remove the appellant, based
on the following charges: (1) Misuse of a Government Vehicle for Other than
Official Purposes, (2) Misuse of Authority, and (3) Lack of Candor (five
specifications). Id. at 164-73. The agency charged the appellant with misuse of
his Government vehicle when while on duty, in uniform, and driving a marked
CBP law enforcement vehicle, he activated the vehicle’s emergency signaling
device while driving behind a private vehicle to cause the driver to stop without
an official purpose. Id. at 164. The agency charged him with misuse of authority
while on duty, and in uniform, he requested the private driver’s license, insurance
information, and vehicle registration, took custody of his driver’s license,
detained the driver for approximately 12 minutes prior to local law enforcement
arriving, and signed the ticket in his capacity as a CBP Officer with no nexus to
his authority as a CBP Officer and without having peace officer status. Id. The
agency also charged the appellant with lack of candor when he gave conflicting
information to his supervisor, in his written statement, and during his OPR
interview. Id. at 165-66. On May 31, 2022, the agency issued a decision letter
sustaining the misuse of authority and lack of candor charges and removed the
appellant effective June 14, 2022. Id. at 70-75.
¶4The appellant timely appealed his removal to the Board challenging the
charges against him. IAF, Tab 1. He also raised the affirmative defense of
reprisal for equal employment opportunity (EEO) activity. Id. at 18-21. After
holding the requested hearing, IAF, Tab 1 at 2, Tabs 32-34, Hearing Recording
(HR), the administrative judge issued an initial decision, IAF, Tab 35, Initial
Decision (ID). Therein, he found that the agency proved the lack of candor
charge by preponderant evidence but failed to prove the charge of misuse of
authority by preponderant evidence. ID at 7-18. He also found that the appellant
failed to prove his affirmative defense of reprisal for EEO activity. ID at 18-19.
Finally, although he found that the agency proved that a nexus existed between
the appellant’s conduct and the efficiency of the service, he found that it failed to
4
show that removal based on the sole sustained charge of lack of candor was
reasonable. ID at 19-22. Accordingly, he mitigated the penalty of removal to a
60-day suspension without pay. ID at 22.
¶5The agency has filed a petition for review of the initial decision.2 Petition
for Review (PFR) File, Tab 1 at 5-26. The appellant has responded to the
agency’s petition for review and filed a cross petition for review challenging the
administrative judge’s decision to mitigate his removal to a 60-day unpaid
suspension. PFR File, Tabs 3-4. The agency has filed a reply to the response and
has responded to the appellant’s cross petition for review. PFR File, Tabs 6, 9.
Additionally, the appellant has filed motions for leave to file a surreply.3 PFR
File, Tabs 7, 10.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6On review, the agency challenges the administrative judge’s finding that the
agency failed to prove its misuse of authority charge and two specifications of its
lack of candor charge. PFR File, Tab 1 at 5-19. Specifically, the agency argues
that the administrative judge made erroneous findings of facts and failed to
2 With its petition for review, the agency submitted a certification of its compliance
with the interim relief order and provided evidence demonstrating that it has complied
with the administrative judge’s interim relief order. Petition for Review (PFR) File,
Tab 1 at 27-31; see 5 C.F.R. § 1201.116(a). The appellant does not challenge the
agency’s certification on review.
3 Following the agency’s reply to the appellant’s response to its petition for review, the
appellant filed a motion for leave to file a surreply. PFR File, Tab 7. The appellant
filed a second motion for leave to file a surreply following the agency’s response to his
cross petition for review. PFR File, Tab 10. Such pleadings are generally not allowed
absent approval by the Office of the Clerk of the Board based upon a party’s motion
describing the nature of and need for the pleading. See Martin v. U.S. Postal Service ,
123 M.S.P.R. 189, ¶ 8 n.1 (2016); 5 C.F.R. § 1201.114(a)(5). Here, the appellant
argues that a surreply is necessary to address the agency’s misrepresentation of the
record, the law, and the administrative judge’s initial decision. PFR File, Tab 7 at 5,
Tab 10 at 5-6. As explained below, we conclude that the administrative judge correctly
determined that the agency failed to prove its misuse of authority charge and found that
removal was unreasonable under the circumstances of this case. Thus, we discern no
need for these additional pleadings. Accordingly, the appellant’s motions for leave to
file a surreply are denied.
5
properly assess the credibility of the witnesses. Id. The agency also argues that
the administrative judge improperly mitigated its chosen penalty of removal. Id.
at 19-26
The administrative judge made reasoned findings of fact and
credibility - based determinations.
¶7The agency argues the administrative judge erroneously found that the
appellant’s actions following the traffic stop to be appropriate based on the
deciding official’s decision not to sustain the misuse of a Government vehicle for
other than official purposes charge and his belief that briefly engaging a driver is
appropriate. PFR File, Tab 1 at 10 -13; ID at 7-13. It argues that in concluding
that the appellant’s actions were appropriate and consistent with the actions of a
witness, the administrative judge failed to correctly address the appellant’s
misuse of his authority to detain the driver and the driver’s license, to determine
the requisite traffic charge, and to sign and issue a ticket to the driver. PFR File,
Tab 1 at 10-17. In response, the appellant argues that the administrative judge’s
findings are supported by the record. PFR File, Tab 3 at 12-13, 19-22. We agree
with the appellant that the administrative judge made appropriate fact findings
and properly considered the relevant evidence in making his determinations.
Here, the agency based its charge of misuse of authority on the following
specification:
On September 12, 2020, at approximately 12:42 PM, while on duty,
and in uniform, with no nexus to your authority as a CBP Officer and
without having peace officer status, you approached a private driver,
requested his license and vehicle registration, and took custody of his
driver’s license; you also requested his insurance information and
detained the driver for approximately 12 minutes prior to local law
enforcement arriving. When law enforcement officers from the
Delaware River Port Authority Police Department (DRPA) arrived,
you informed them of the State of New Jersey traffic violation to
charge on the resulting Complaint-Summons (No. 0414-PA-293725),
signed your name as the complaining witness in your capacity as a
CBP Officer; and you served the Complaint-Summons on the driver.
6
Your conduct had no nexus to your authority and position as a CBP
Officer.
¶8The administrative judge found that the agency failed to prove its charge by
preponderant evidence. ID at 7-13. In so finding, the administrative judge
explained that the deciding official conceded that many of the factual allegations
in the agency’s charge were appropriate. ID at 10-13; IAF, Tab 33, HR
(testimony of deciding official). Specifically, he noted that the deciding official
testified that both the traffic stop and the appellant’s subsequent actions were
appropriate and that the appellant had no authority over the DRPA officers.4 ID
at 10-13; IAF, Tab 33, HR (testimony of deciding official). The administrative
judge found that those concessions along with the other evidence in the record
undermined the agency’s charge. ID at 11-13. The administrative judge
concluded that, amongst other things, the evidence and testimony that the agency
has no policy expressly addressing traffic stops; that CBP officers, including the
appellant, have made traffic stops and requested and received identification
without discipline; and that the agency reports reflect that the DRPA officers
completed and issued the ticket did not support sustaining the agency’s charge
considering the deciding official’s concessions. ID at 10,13; IAF, Tab 6 at 135,
147-57, 198, 200; Tab 19 at 150-54; Tab 33, HR (testimony of the appellant, the
appellant’s supervisor, as well as current and former CBP Officers officers).
¶9We are similarly unpersuaded by the agency’s argument on review that the
administrative judge made erroneous findings regarding the 12-minute stop. PFR
File, Tab 1 at 13-14. The agency argues that he “made the erroneous leap that
because [the deciding official] said it is acceptable for a [CBP Officer] to call
911, then a twelve-minute detention was out of the Appellant’s control.” Id.; ID
at 12. However, the administrative judge did not solely consider the deciding
official’s concession regarding the appropriateness of the 911 call. Instead, he
4 The administrative judge found that the deciding official conceded that it was okay for
the appellant to act as a witness regarding a state crime or violation, to sign the ticket as
a witness, and to call 911 after making the stop. ID at 12.
7
made reasoned conclusions based on numerous factors. ID at 12-13. In
particular, the administrative judge considered that the deciding official testified
that “it is ‘sometimes appropriate to pull over a driver who is reckless or
dangerous’ and a [CBP Officer] ‘can stop a vehicle if it is a risk to public
safety.’” ID at 11; IAF, Tab 33, HR (testimony of the deciding official). He
considered the deciding official’s concession that the appellant properly stopped
the reckless driver and called 911. ID at 12; IAF, Tab 33, HR (testimony of the
deciding official). He also considered the lack of a policy addressing traffic
stops, and testimony and evidence corroborating that other CBP Officers have
made similar traffic stops, to include taking identification, without discipline. ID
at 12-13.
¶10To the extent that the agency argues that the administrative judge
erroneously found the appellant to be a mere witness, its argument is without
merit. The administrative judge did not determine that the appellant was a
witness; instead, he expressed that the appellant’s actions “appeared to be that of
a witness” in large part based on the evidence and testimony that the appellant
relayed the details of the incident to the DRPA officers, the DRPA officers filled
out the ticket, asked him about the charge since he witnessed the incident, and
requested that he sign it as the complaining witness. ID at 12-13; IAF, Tab 6
at 198, 200, 217, Tab 9 (dash cam video); Tab 33, HR (testimony of the deciding
official). Therefore, we discern no basis to disturb the administrative judge’s
decision to not sustain the misuse of authority charge. ID at 13.
¶11The agency also argues that the administrative judge failed to properly
assess witness credibility in accordance with Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987). PFR File, Tab 1 at 6-7. Specifically, the agency
asserts that the administrative judge “either did not explain his credibility
determinations or conducted scant analysis when he did” in finding that it failed
to prove two specifications of its lack of candor charge. PFR File, Tab 1 at 6-7.
We disagree.
8
¶12The fact that an administrative judge does not mention all of the evidence or
Hillen factors does not mean that she did not consider them. Mithen v.
Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14 (2015), aff’d, 652 F.
App’x 971 (Fed. Cir. 2016). Here, the administrative judge specified that he had
the opportunity to observe the witnesses, considered their demeanor, and relied
on the factors identified by the Board in Hillen for resolving issues of credibility.
ID at 7 n.4. Further, the Board defers to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002); see Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (finding
that the Board erred in failing to defer to an administrative judge’s implicit
demeanor-based credibility findings after holding a hearing, even though
demeanor was not specifically discussed); see also Mithen , 122 M.S.P.R. 489,
¶ 13 (noting that an administrative judge’s credibility determinations are
“virtually unreviewable”).
¶13The agency also asserts that the administrative judge improperly found the
appellant credible given his numerous inconsistencies regarding what occurred
during the traffic stop. PFR File, Tab 1 at 6-7. We find this assertion unavailing.
At the outset, the administrative judge was not required to discredit the
appellant’s credibility on all issues because he found him not credible on one or
more issues. Cross v. Department of the Army , 89 M.S.P.R. 62, ¶ 14 (2001); see
Hawkins v. Smithsonian Institution , 73 M.S.P.R. 397, 404 (1997). Instead, the
specific instances of lack of credibility are proper considerations in assessing the
witness’s overall credibility. Cross, 89 M.S.P.R. 62, ¶ 14; see Sternberg v.
Department of Defense , 41 M.S.P.R. 46, 54 (1989) (explaining that once an
administrative judge has discredited a witness’s testimony on one charge, he must
reasonably explain why he accepts the testimony as credible on other charges).
9
¶14In the initial decision, the administrative judge considered and gave
reasoned explanations for why he did not sustain the two specifications of the
lack of candor charge. ID at 17-18. With respect to the specification alleging
that the appellant failed to disclose information in his written statement, the
administrative judge specifically explained he found that the missing information
to be immaterial based on the agency’s testimony, as noted above, that it had no
issues with the appellant serving as a witness. ID at 17. Regarding the
specification that the appellant’s written statement was inconsistent with his OPR
interview, the administrative judge found that he credibly explained that he did
not include the driver’s medical issue in his written statement because he knew it
was not factual. Id. The record also reflects that the appellant testified that he
included the information during his OPR interview in response to the
investigator’s request to describe the incident in as much detail as you can
remember. IAF, Tab 33, HR (testimony of the appellant). Thus, we find that the
administrative judge’s credibility analysis was sufficient to justify his factual
findings.
We discern no basis to disturb the administrative judge’s finding that the
appellant failed to establish his affirmative defense.
¶15The appellant argued that the agency’s actions were reprisal for engaging in
protected EEO activity. IAF, Tab 1 at 18-21. The administrative judge found
that the appellant failed to prove this affirmative defense considering the limited
evidence and testimony regarding the appellant’s affirmative defense. ID at 18-
19. The parties do not challenge, and we discern no basis to disturb, this finding
on review.
10
We discern no error in the administrative judge’s decision to mitigate the penalty
of removal to a 60-day suspension. 5
¶16In addition to proving its charges by preponderant evidence, the agency
must also establish the existence of a nexus between the misconduct and the
efficiency of the service, and that the penalty of removal is reasonable. 5 U.S.C.
§ 7513(a); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 18 (2013);
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306-07 (1981). The nexus
requirement, for purposes of determining whether an agency has shown that its
action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish his duties satisfactorily or some other
legitimate Government interest. Scheffler v. Department of the Army ,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). We
agree with the administrative judge’s findings that the agency has met the nexus
requirement here. ID at 18 (citing Miles v. Department of the Navy , 102 M.S.P.R.
316, ¶ 11 (2006) (reasoning that misconduct that occurred at work satisfies the
nexus requirement)).
¶17Regarding the penalty, when, as here, not all of the charges are sustained,
the Board will consider carefully whether the sustained charges merit the penalty
imposed by the agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R.
671, ¶ 6 (2010), aff’d, 415 F. App’x 240 (Fed. Cir. 2011). In such circumstances,
the Board may mitigate the agency’s penalty to the maximum reasonable penalty
so long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires a lesser penalty be imposed on fewer
charges. Id. In doing so, the Board may not disconnect its penalty determination
5 The appellant largely argues in his cross petition for review that the administrative
judge’s mitigated penalty is unreasonable. PFR File, Tab 4. However, given our
disposition that the administrative judge appropriately mitigated the penalty to 60-days,
we deny the appellant’s cross petition for review.
11
from the agency’s managerial will and primary discretion in disciplining
employees. Id.
¶18On review, the agency continues to argue that the penalty of removal is
reasonable based on both the misuse of authority charge and lack of candor
charge. PFR File, Tab 1 at 19-26. Because, as discussed above, we agree with
the administrative judge that the agency failed to prove the misuse of authority
charge, we agree that the penalty can only be based on the lack of candor charge.
See Douglas, 5 M.S.P.R. at 302 (explaining that the Board reviews the penalty
based on the sustained charges to ensure that it is within the range allowed by law
and regulation). The agency argues that mitigation is not warranted in this case.
PFR File, Tab 1 at 19-26.
¶19In assessing the penalty, the administrative judge considered the deciding
official’s decision letter and his testimony. ID at 20. The deciding official
testified that the appellant’s lack of candor readily supported his removal, that he
lost trust and confidence in the appellant’s ability to perform his duties, and that,
as a law enforcement officer, the appellant’s actions made him Giglio-impaired.
IAF, Tab 33, HR (testimony of the deciding official). The administrative judge
acknowledged that the Board considers lack of candor a serious offense that can
readily support the penalty of removal. ID at 20 (citing Jackson v. Department of
the Army, 99 M.S.P.R. 604, ¶ 6 (2005)). Nonetheless, he properly observed that
the appellant’s law enforcement status does not preclude mitigation of a lack of
candor charge. ID at 21 (citing Ludlum v. Department of Justice , 87 M.S.P.R. 56,
¶ 31 (2000)). Specifically, the administrative judge determined that mitigation is
appropriate given the appellant’s successful 19-year work history, his
supervisor’s testimony that he is a good and honest officer, and evidence that his
prior disciplinary actions occurred over 10 years prior. ID at 20 -22. As such, we
find that the administrative judge properly determined that the maximum
reasonable penalty under the circumstances of this case is a 60-day suspension
without pay. ID at 22. For the foregoing reasons, we deny the petition for review
12
and affirm the initial decision, which sustained the charge of lack of candor but
mitigated the removal to a 60-day suspension without pay.
ORDER
¶20 We ORDER the agency to cancel the appellant’s June 14, 2022 removal
and substitute in its place a 60-day suspension without pay. The agency must
complete this action no later than 20 days after the date of this decision. See Kerr
v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984).
¶21We 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.
¶22We 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).
¶23No 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
13
¶24For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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.
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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.
2 | Lam_Dickie_T_PH-0752-22-0250-I-1 Final Order.pdf | 2024-03-21 | DICKIE T. LAM v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-0752-22-0250-I-1, March 21, 2024 | PH-0752-22-0250-I-1 | NP |
1,989 | https://www.mspb.gov/decisions/nonprecedential/Dabbs_Erik_O_PH-1221-18-0145-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIK O. DABBS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-1221-18-0145-W-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather White , Esquire, Washington, D.C., for the appellant.
Larry Zieff , Esquire, Farmers Branch, Texas, for the agency.
Helen E. Moore , Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
granted in part and denied in part the appellant’s request for corrective action in
this individual right of action appeal. The agency asserts, among other things,
that the administrative judge erred when he found that the appellant exhausted 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).
harassment disclosure with the Office of Special Counsel and made a protected
disclosure that was a contributing factor in his letter of reprimand. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
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).
ORDER
¶2We ORDER the agency to cancel the Letter of Reprimand, dated
September 21, 2016. The agency must complete this action no later than 20 days
after the date of this decision. We further ORDER the agency to remove and
expunge all copies of the Letter of Reprimand which may be contained in
appellant’s Official Personnel Folder, as well as in any disciplinary file
maintained on the appellant no later than 60 calendar days after the date of this
decision.
¶3We 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). 2
¶4No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable3
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Dabbs_Erik_O_PH-1221-18-0145-W-1__Final_Order.pdf | 2024-03-21 | ERIK O. DABBS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-1221-18-0145-W-1, March 21, 2024 | PH-1221-18-0145-W-1 | NP |
1,990 | https://www.mspb.gov/decisions/nonprecedential/Upchurch_Frederick_PH-0752-21-0350-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK UPCHURCH,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-21-0350-I-1
DATE: March 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Gershman , Esquire, Delray Beach, Florida, for the appellant.
Lauren Ruby , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice 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. Except as expressly
MODIFIED to analyze a potential whistleblower reprisal claim under 5 U.S.C.
§ 2302(b)(9)(D) and to VACATE the administrative judge’s alternative finding
that the agency proved by clear and convincing evidence that it would have
removed the appellant absent his protected activity or disclosures, we AFFIRM
the initial decision, still upholding the agency’s removal action.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was removed from his position of Supervisor Medicolegal
Investigator with the Office of the Armed Forces Medical Examiner System
(AFMES) for 22 specifications of absent without leave (AWOL) related to a
period during which he was incarcerated. Initial Appeal File (IAF), Tab 1
at 10-11, 15, 27-29. The appellant appealed his removal to the Board and, after a
hearing, the administrative judge sustained the AWOL charge, denied the
appellant’s affirmative defenses of harmful error and whistleblower reprisal, and
found that the penalty of removal was reasonable. IAF, Tab 30, Initial Decision
(ID) at 3-21. The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4. On review, the appellant largely reiterates the same arguments that
he raised before the administrative judge and argues that the agency denied him
his requested discovery. PFR File, Tab 1. For the reasons set forth herein, we
find the appellant’s arguments unavailing. 2
We agree with the administrative judge’s finding that the agency proved its
AWOL charge.
To prove an AWOL charge, the agency must demonstrate that the appellant
was absent from duty and that his absence was not authorized or that his request
for leave was properly denied. See Little v. Department of Transportation ,
112 M.S.P.R. 224, ¶ 6 (2009). The administrative judge found that the agency
proved that the appellant was absent from duty between May 5 and June 4, 2021,
that his request for leave during that period was not authorized, and that the
agency acted properly in denying his request. ID at 3-5. On review, the appellant
argues, as he did before the administrative judge, that the agency improperly
denied his request to use annual leave during the time he was incarcerated.
PFR File, Tab 1 at 11-12. In this regard, he argues that the agency improperly
designated the Director of AFMES as his first-line supervisor and that the
Director did not have the authority to deny his leave request. Id. at 13-15.
The appellant does not dispute, and we find no error in, the administrative
judge’s finding that the appellant was absent from duty between May 5 and
June 4, 2021. ID at 3. Contrary to the appellant’s argument, we agree with the
administrative judge that the agency acted properly in denying the appellant’s
leave request. ID at 3-5. The appellant’s incarceration began in March 2021 and,
after the agency granted the appellant administrative leave for several weeks,
IAF, Tab 1 at 46, the appellant called the AFMES Chief of Staff on or about
May 3, 2021, and requested to use sick leave and/or annual leave for an indefinite
period while he was incarcerated, Hearing Record (HR) (testimony of the Chief of
Staff). The Chief of Staff consulted with the Director, who was the appellant’s
first-line supervisor, and then notified the appellant’s attorney that the leave
request was denied. HR (testimony of the Chief of Staff). The Chief of Staff
testified at the hearing that the appellant was not permitted to use sick leave
because it may only be granted for specific reasons and the appellant’s request
did not satisfy any of them, and that the agency determined that it would not3
approve the appellant’s open-ended request for annual leave. Id. We agree with
the administrative judge that the agency had the authority to deny the appellant’s
leave request under these circumstances, particularly because the agency
established that the appellant’s absence detrimentally impacted the efficiency of
the service given his unique skillset and qualifications, and because the leave
request was for a significant, indefinite period of time. ID at 4-5 (citing Benally
v. Department of the Interior , 71 M.S.P.R. 537, 541 (1996) (stating that annual
leave is an entitlement, subject to an agency’s right to fix the time at which it is
taken, 5 U.S.C. § 6302(d), and that the Board should consider, in determining
whether the agency properly denied an appellant’s leave request for a period of
incarceration, the expected length of the absence and its impact on the workplace,
and whether the appellant had sufficient leave to cover the absence)). As the
administrative judge correctly observed, AFMES is the nation’s only Federal
medical examiner system, and the Chief of Staff testified that the appellant’s
extended absence caused the office to be short -staffed and left critical duties
unfulfilled. ID at 2; HR (testimony of the Chief of Staff). We also agree with the
administrative judge that there is no evidence that the Director was improperly
designated as the appellant’s first-line supervisor, and, in any event, the appellant
has identified no policy, rule, or regulation requiring a specific person to approve
or deny his leave requests. ID at 6-7.
To the extent the appellant asserts on review that the Chief of Staff
authorized his leave request because he told the appellant “not to worry” and that
his leave “would be taken care of,” PFR File, Tab 1 at 11, we find that these
statements, even if true, did not obligate the agency to approve the appellant’s
request for annual or sick leave after examining the circumstances and the
open-ended nature of the request. HR (testimony of the Chief of Staff)
(explaining that he consulted with the Director and determined that it was
necessary to fill the appellant’s job duties). The appellant’s remaining arguments
on this subject merely reiterate those already raised before the administrative4
judge and do not provide a basis to disturb the administrative judge’s findings,
which are supported by the record evidence. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987).
We agree with the administrative judge’s finding that the appellant did not prove
harmful error.
For the reasons set forth in the initial decision and in the section above, we
find that the appellant failed to prove that the agency violated any of its policies
or procedures in designating the Director as his first-line supervisor. ID at 6-8.
On review, the appellant asserts that the agency’s designation of the Director as
his first-line supervisor violated agency instructions concerning performance
evaluations. PFR File, Tab 1 at 12-13. Even if true, the agency’s policies
regarding performance evaluations are irrelevant to the question of whether the
agency properly denied the appellant’s request for leave. In any event, the Board
will only reverse an action for harmful error if the appellant shows that the
procedural error would likely have caused the agency to reach a different
conclusion in the absence or cure of the error. Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. §§ 1201.4(r), 1201.56(c)(1).
We agree with the administrative judge that the appellant has not made such a
showing. ID at 6-8. We therefore affirm the administrative judge’s finding that
the appellant failed to prove his harmful error defense.
We agree with the administrative judge’s finding that the appellant failed to prove
his whistleblower reprisal affirmative defense.
When whistleblower retaliation claims are made in connection with
an otherwise appealable action, as here, the appellant must prove by preponderant
evidence that (1) he made a protected disclosure or engaged in protected activity,
and (2) the disclosure or activity was a contributing factor in the personnel action
at issue. Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶ 49. If the
appellant makes this showing, the burden shifts to the agency to prove by clear5
and convincing evidence that it would have taken the personnel action in the
absence of the protected disclosure or activity. Id.
Before the administrative judge, the appellant asserted that he made
protected disclosures pursuant to 5 U.S.C. § 2302(b)(8) when he disagreed with
the agency’s staffing decisions regarding missions to Hawaii and Alaska and that
he engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(9) when
he participated as a witness in a 2017 Office of Inspector General (OIG) and
equal employment opportunity (EEO) investigation. ID at 10-15. For the
following reasons, we agree with the administrative judge that the appellant failed
to prove his whistleblower reprisal affirmative defense.
The appellant failed to prove that the agency removed him because
of his communications about the Hawaii and Alaska missions.
We agree with the administrative judge, for the reasons stated in the initial
decision, that the appellant failed to prove that his communications about the
Hawaii and Alaska missions were protected under 5 U.S.C. § 2302(b)(8).
ID at 8-14. Although we clarify that policy disagreements and disclosable
misconduct under the Whistleblower Protection Enhancement Act are not
mutually exclusive, Hessami v. Merit Systems Protection Board , 979 F.3d 1362,
1371 (Fed. Cir. 2020), we find that the appellant’s vague and conclusory
allegations of wrongdoing are insufficient to meet his burden to prove that
he made a protected disclosure, see Rebstock Consolidation v. Department of
Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015) (concluding that vague,
conclusory, and unsupported allegations do not meet the lower nonfrivolous
allegation jurisdictional standard for whistleblower retaliation claims).
We have considered whether the appellant’s communications regarding the
Hawaii and Alaska missions implicate a claim under 5 U.S.C. § 2302(b)(9)(D),
which protects employees from retaliation because the employee “refus[ed] to
obey an order that would require [him] to violate a law, rule, or regulation.”
However, aside from his conclusory allegations that the Director ordered6
the appellant to “change out” the designated staff member “because [she] was
a female” and that the Director “desired a male to go on the mission,”
IAF, Tab 21 at 6, the appellant provided no further details in support of his claim.
We find that these conclusory allegations are insufficient to establish that the
agency ordered him to violate a law, rule, or regulation, or that he refused such
an order. Rebstock, 122 M.S.P.R. 662, ¶¶ 12-13.
The appellant dedicates several pages of his petition for review to further
details and discussion regarding the Hawaii and Alaska missions. PFR File, Tab
1 at 6-12. However, the appellant did not raise these facts in his filings before
the administrative judge and he did not testify to them at the hearing. IAF, Tab
21 at 5-7, 14-15, Tab 28 at 5; HR (testimony of the appellant). Because the
appellant has not established that this information was unavailable to him prior to
the close of the record before the administrative judge despite his due diligence,
we do not consider these new arguments. PFR File, Tab 1 at 6-12; see Avansino
v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (stating that the Board
generally will not consider argument or evidence submitted for the first time on
review absent a showing that it was unavailable before the record was closed
before the administrative judge despite the party’s due diligence); 5 C.F.R.
§ 1201.115(d).
The appellant failed to prove that the agency removed him because
of his OIG and EEO activity.
On review, the appellant has not challenged the administrative judge’s
finding that he failed to prove that the agency removed him because of his 2017
OIG and EEO activity. ID at 15-17; PFR File, Tab 1. Nonetheless, we take this
opportunity to clarify the administrative judge’s analysis. We agree with the
administrative judge that the appellant’s 2017 OIG activity is protected under
5 U.S.C. § 2302(b)(9) and we agree with the implicit finding that the appellant
failed to prove that his OIG activity was a contributing factor to his removal.
ID at 15-17 (finding that the appellant failed to meet the knowledge/timing test7
and failed to present other circumstantial evidence to support a finding of
contributing factor).
We clarify that EEO reprisal claims are excluded from coverage under
5 U.S.C. § 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10,
17. An appellant may raise a claim of retaliation for prior EEO activity under the
Title VII framework, which requires an appellant to demonstrate that his EEO
activity was a motivating factor in the contested action. See Pridgen, 2022 MSPB
31, ¶¶ 21-22, 30. We agree with the administrative judge’s factual finding that
the appellant failed to put forth evidence showing that his EEO activity was a
factor in his removal, and we therefore find that he has failed to prove his EEO
retaliation claim. ID at 15-16; see Pridgen, 2022 MSPB 31, ¶ 21.
Because we find that the appellant failed to prove that (1) he made a
protected disclosure pursuant to 5 U.S.C. § 2302(b)(8) or (2) his protected
activity pursuant to 5 U.S.C. § 2302(b)(9) was a contributing factor in his
removal, we vacate the administrative judge’s alternative finding that the agency
proved by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s whistleblowing activity. ID at 14-15, 17; see
Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014)
(stating that the Board may not proceed to the clear and convincing evidence test
unless it has first determined that the appellant established a prima facie case),
aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
We agree with the administrative judge that the penalty of removal is reasonable.
When the agency’s charges are sustained, the Board will review an agency
imposed penalty only to determine if the agency considered all the relevant
factors and exercised management discretion within the tolerable limits of
reasonableness. ID at 18; see Douglas v. Veterans Administration , 5 M.S.P.R.
280, 306 (1981). The administrative judge considered the decision notice and the
testimony of the deciding official in determining that she fully and carefully
considered the relevant Douglas factors and the penalty of removal was8
reasonable. ID at 18-20; see Douglas, 5 M.S.P.R. at 305. On review, the
appellant challenges the credibility of the deciding official and her weighing of
the Douglas factors. PFR File, Tab 1 at 18-19. He also argues that the deciding
official was biased against him. Id. at 17, 19-20.
We agree with the administrative judge’s factual finding that the appellant
did not demonstrate that the deciding official harbored bias against him for the
reasons set forth in the initial decision. ID at 19; see Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer
to an administrative judge’s credibility determinations when they are based on
observing the demeanor of witnesses testifying at the hearing unless there are
“sufficiently sound” reasons for disturbing those findings). We also agree with
the administrative judge’s well -reasoned conclusions that the deciding official
fully and carefully considered the relevant Douglas factors and the penalty of
removal was reasonable. ID at 18-20.
We find the appellant’s remaining arguments unavailing.
On review, the appellant asserts that the agency did not adequately respond
to his discovery requests. PFR File, Tab 1 at 15-16, 21. The appellant’s
discovery requests appear to be untimely pursuant to the administrative judge’s
acknowledgment order. IAF, Tab 2 at 3 (instructing the parties to serve discovery
requests within 30 days, or no later than October 8, 2021), Tab 8 (reflecting that
the appellant’s discovery requests were made on October 23, 2021).
The appellant did not file a motion requesting to extend the time period to serve
discovery. In any case, the agency appears to have responded, at least in part, to
the appellant’s discovery requests, PFR File, Tab 3 at 6-8, 10-12, and the
appellant did not file a motion to compel before the administrative judge to
preserve his objections to the agency’s responses, as he was required to do. Thus,
we do not consider the appellant’s arguments on review regarding his discovery
requests. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 59
(2005) (stating that an appellant is precluded from raising a discovery issue for
the first time on review), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
To the extent the appellant has raised additional challenges to the
administrative judge’s credibility findings that we did not discuss above, we find
that the appellant has failed to establish a sufficiently sound reason for disturbing
those findings. PFR File, Tab 1 at 9, 11, Tab 4 at 4-6; see Haebe, 288 F.3d
at 1301. In this regard, we note that the appellant has not directed the Board’s
attention to any record evidence or sworn testimony that would support
overturning the administrative judge’s credibility findings. PFR File, Tab 1 at 11,
Tab 4 at 4-6; see Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168
(1995) (stating that statements by a party’s representative are not evidence) .
We have considered the appellant’s remaining arguments and find them
unavailing. Based on the foregoing, we deny the appellant’s petition for review
and affirm the initial decision as 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
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this 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 | Upchurch_Frederick_PH-0752-21-0350-I-1__Final_Order.pdf | 2024-03-21 | FREDERICK UPCHURCH v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-21-0350-I-1, March 21, 2024 | PH-0752-21-0350-I-1 | NP |
1,991 | https://www.mspb.gov/decisions/nonprecedential/Wattawa_Lori_A_CH-3443-17-0551-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI ANN WATTAWA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-3443-17-0551-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lori Ann Wattawa , Eden Prairie, Minnesota, pro se.
Katie A. Chillemi , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement and individual right of action (IRA) claims
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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. We MODIFY the initial decision to
find that the appellant’s involuntary retirement claim was not barred by the
settlement agreement’s waiver provision, address her claims as to the agency’s
actions for the period between the effective date of the settlement agreement and
her retirement, and explain the correct basis for analyzing her motion for a
protective order. Except as expressly modified, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency until she retired on October 1,
2016. Initial Appeal File (IAF), Tab 1 at 4. On November 25, 2014, while still
employed, she filed a lawsuit against the agency in the U.S. District Court for the
District of Minnesota, alleging discrimination and harassment. IAF, Tab 15
at 15; see Wattawa v. Johnson , No. 14-4853, slip op. at 1 (D. Minn. Oct. 9, 2015).
On September 14, 2015, she and the agency entered into an agreement settling her
lawsuit. IAF, Tab 15 at 15-16. Under its terms, the appellant agreed to waive all
claims “arising out of or in connection with any event occurring before the date
of the settlement agreement.” Id. at 18-19. She further agreed to resign or retire
from Federal service on or before October 1, 2016, and to perform the assigned
duties commensurate with her grade and position until then. Id. at 17-18. In
return, the agency agreed to pay her $35,000 and allow her to telework full-time
3
until she resigned or retired. Id. at 16-17. The appellant had 21 days to consider
the agreement before signing it and could revoke it within 7 days of its execution
in a signed writing to the agency. Id. at 19-20.
In September 2017, the appellant filed a Board appeal challenging the
validity of the settlement agreement and alleging that the agency forced her to
retire. IAF, Tab 1 at 4-7. In a set of jurisdictional orders, the administrative
judge notified the appellant of her burden of proving that the settlement
agreement did not divest the Board of jurisdiction over her appeals, that her
retirement was involuntary, and that the Board had jurisdiction over her reprisal
claims as an affirmative defense or as an IRA appeal. IAF, Tab 2 at 2-5, Tabs 12,
17. The administrative judge also apprised the appellant of her burden of
showing that a mental impairment prevented her from entering into the agreement
voluntarily. IAF, Tab 12 at 3. Both parties submitted responses. IAF,
Tabs 9-10, 13-15, 19. The appellant also filed three motions for protective
orders, which the administrative judge denied. IAF, Tabs 4, 11, 20.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction, without holding the appellant’s requested hearing. IAF,
Tab 24, Initial Decision (ID) at 1-2, 10. She found that the appellant did not
nonfrivolously allege that the settlement agreement was invalid and that the
agreement’s waiver provision barred the appellant from challenging any
pre-separation actions relating to her employment, including her retirement. ID
at 4-8. Limiting consideration of the appellant’s reprisal allegations relating to
the agency’s post-separation actions, the administrative judge dismissed the IRA
claim for failure to prove exhaustion. ID at 8-10.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, to which the appellant has replied.
PFR File, Tabs 3, 5.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over the appellant’s involuntary retirement appeal.
The appellant retired pursuant to a settlement agreement reached in Federal
district court. IAF, Tab 15 at 15-24. The Board may review the parties’
settlement agreement to determine its effect on the appellant’s right to pursue her
Board appeal, even though the parties reached the agreement in another forum.
See Landers v. Department of the Air Force , 117 M.S.P.R. 109, ¶¶ 2 n.1, 5 (2011)
(considering the validity of a settlement agreement entered into in Federal district
court to determine its effect on the appellant’s Board appeal). The Board may
consider the enforceability of any waiver of Board appeal rights and the
appellant’s challenges to the validity of the settlement agreement. Id., ¶ 5.
Contrary to the administrative judge’s finding, ID at 4-5, we find that the
appellant did not waive her right to appeal her retirement before the Board. A
settlement agreement is a contract, the interpretation of which is a matter of law.
Greco v. Department of the Army , 852 F.2d 558, 560 (Fed. Cir. 1988). The words
of the agreement are of paramount importance in determining the parties’ intent
when they contracted. Id. There is no indication that the appellant’s retirement
was the subject of the 2014 lawsuit. Under the terms of the settlement agreement,
the appellant released the agency “from any and all claims, demands, and causes
of action of every kind, nature or description, whether known or unknown . . .
arising out of or in connection with any event occurring prior to the date of th[e]
settlement agreement .” IAF, Tab 15 at 18 (emphasis added). The provision
expressly limited the covered events to those that gave rise to the lawsuit and that
occurred before September 14, 2015. Id. at 16, 18. Thus, the waiver provision
did not bar claims related to events occurring after September 14, 2015, including
the appellant’s retirement, and we modify the initial decision accordingly. We
agree with the administrative judge that the waiver provision was broad enough to
bar all claims relating to actions or events occurring before that date. ID at 4-5.
5
Nevertheless, the Board has found separations from service to be voluntary
when an employee resigns or applies for retirement pursuant to the terms of a
settlement agreement. Eller v. Office of Personnel Management , 121 M.S.P.R.
551, ¶ 22 (2014); see generally Putnam v. Department of Homeland Security ,
121 M.S.P.R. 532, ¶ 21 (2014) (explaining that a retirement is presumed to be a
voluntary act and beyond the Board’s jurisdiction). Thus, to prove that her
retirement was involuntary, the appellant must show that the agreement was
unlawful, involuntary, or the result of fraud or mutual mistake. See Bland v.
Department of the Navy , 71 M.S.P.R. 388, 391 (l996) (describing the bases for
invalidating a settlement agreement), aff’d, 107 F.3d 30 (Fed. Cir. l997) (Table).
An appellant must make a nonfrivolous allegation of jurisdiction to be entitled to
a hearing. Putnam, 121 M.S.P.R. 532, ¶ 21. A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
On review, the appellant sets forth two bases for invalidating the settlement
agreement: (1) she revoked it within the revocation period; and (2) the agency’s
conduct from 2007 onwards coerced her into signing the agreement. PFR File,
Tab 1 at 4-8. We find that neither argument provides a basis for granting review.
The appellant identified at least three emails which she claims prove that
she revoked the agreement. Id. at 4. Of the identified emails, only the purported
September 21, 2015 email to her attorney and September 22, 2015 email to the
presiding judge in her district court lawsuit were allegedly sent during the 7-day
revocation period. Id.; IAF, Tab 15 at 24. The appellant has not submitted those
emails or otherwise described their content. We therefore agree with the
administrative judge that the appellant failed to make a nonfrivolous allegation
that she revoked the agreement within the 7-day revocation period. ID at 5; IAF,
Tab 15 at 18.
In support of her coercion and duress claims, the appellant reasserts on
review that the agency tortured and harassed her by implanting devices on her
body, assaulting her using electronic devices, stalking her, and controlling her
6
phone, car, laptop, and other personal belongings. PFR File, Tab 1 at 4-7. She
also alleges that the agency discriminated against her and created a hostile work
environment for her, and that it manipulated the equal employment opportunity
(EEO) process by impersonating agency officials. Id. The administrative judge
considered these arguments below and found that they did not constitute
allegations that, if true, would prove she was coerced into signing the settlement
agreement. ID at 6-8.
To establish that a settlement was the product of duress, the appellant must
prove that she involuntarily accepted the other party’s terms, that the
circumstances permitted no alternative, and that those circumstances were the
result of the agency’s coercive acts. Bland, 71 M.S.P.R. at 391. As the
administrative judge found, ID at 6-8, the appellant’s implausible, uncorroborated
claims of agency misconduct and harassment outside of the workplace are
insufficient to meet her jurisdictional burden. See 5 C.F.R. § 1201.4(s)(2)
(explaining that a nonfrivolous allegation is one that is plausible on its face). Her
discrimination and hostile work environment claims are also conclusory. PFR
File, Tab 1 at 4-7. Although the decision between retiring versus pursuing her
discrimination claims using the EEO process while remaining employed may have
been a choice between unpleasant alternatives, it does not render the settlement
agreement involuntary. See Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350
(1995) (explaining that the fact that an employee is faced with an inherently
unpleasant situation, or that his choices are limited to unpleasant alternatives,
does not make his decision to retire involuntary). Moreover, although the
appellant states that she retired to protect her retirement benefits, IAF, Tab 1 at 4,
she has not alleged that the agency misinformed her concerning her retirement
eligibility or any other matter.
The appellant does not reassert her arguments that the negotiation process
itself was coercive. IAF, Tab 18 at 11. The administrative judge found that the
appellant was assigned an attorney to assist her during settlement negotiations
7
and received valuable consideration under the agreement. ID at 7; IAF, Tab 15
at 24, Tab 18 at 18. She further found that the appellant did not nonfrivolously
allege that she was mentally impaired or unable to assist her counsel. ID at 7;
IAF, Tab 15 at 19; see Potter v. Department of Veterans Affairs , 111 M.S.P.R.
374, ¶ 6 (2009) (recognizing that a party to a settlement agreement is presumed to
have full legal capacity to contract unless he is mentally disabled and that mental
disability is so severe that he cannot form the necessary intent). Under these
circumstances, the appellant’s claim—that she never would have signed the
agreement because it lacked the “protection[s]” she desired, PFR File, Tab 1 at 4
—does not refute the voluntariness of her decision to enter into the settlement
agreement. To the extent that the appellant was unilaterally mistaken about the
terms of the agreement or became dissatisfied with the agreement after-the-fact,
neither is a basis for invalidating the settlement agreement. See Potter,
111 M.S.P.R. 374, ¶ 6 (explaining that an appellant’s mere post-settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement); Pawlowski v. Department of Veterans Affairs , 96 M.S.P.R.
353, ¶ 15 (2004) (finding the appellant’s unilateral mistake was not a basis for
invalidating the settlement agreement).
The administrative judge did not consider whether any of the agency’s
post-settlement agreement actions rendered the appellant’s retirement
involuntary. ID at 4-5, 8. As argued below, the appellant alleges on review that
the agency continued its pattern of harassment by engaging in the same conduct
we addressed above in the year that she continued to work after signing the
settlement agreement. PFR File, Tab 1 at 4-7; ID at 8. These claims of coercion
are as unsupported as those she raised concerning the agency’s pre-settlement
conduct. Accordingly, we affirm the administrative judge’s finding that the
appellant has not nonfrivolously alleged that the agreement was invalid or
involuntary, and, as a result, did not nonfrivolously allege Board jurisdiction over
her involuntary retirement appeal.
8
The Board lacks jurisdiction over the appellant’s IRA appeal.
In analyzing the appellant’s reprisal claims, the administrative judge only
considered those relating to the agency’s post-separation actions. ID at 4-5, 8-10.
As explained above, the agreement’s waiver provision did not bar claims relating
to actions occurring after its execution, unrelated to the subject matter of the
settlement agreement. See IAF, Tab 15 at 16, 18-19. Therefore, we also consider
whether the appellant established jurisdiction over her IRA appeal in connection
with the alleged post-settlement actions.
Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from the Office of Special Counsel (OSC) before seeking corrective action
from the Board. Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469,
¶8 (2010). The Board may only consider charges of whistleblowing that the
appellant raised before OSC. Id.
Below, the appellant submitted evidence that she filed a complaint with
OSC in 2013. IAF, Tab 19 at 12-24. The administrative judge properly
concluded that this was insufficient proof that she exhausted her allegations
regarding any post-separation conduct. ID at 9-10; see Baldwin, 113 M.S.P.R.
469, ¶ 8. This finding also applies to any additional post-settlement actions
because there is no indication that the appellant’s 2013 complaint covered actions
that occurred at least 2 years later. IAF, Tab 19 at 12-24. On review, the
appellant asserts that she contacted OSC by phone in September 2015 and created
an account to access OSC’s e-file system. PFR File, Tab 1 at 6. We need not
consider this new argument because it does not affect the outcome of the appeal.
Cf. Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013) (considering
the appellant’s evidence of exhaustion submitted for the first time on review
because it implicated the Board’s jurisdiction and warranted an outcome different
from that of the initial decision). Under certain circumstances, oral
communications with OSC may be evidence of exhaustion. See Johns v.
Department of Veterans Affairs , 95 M.S.P.R. 106, ¶¶ 15-18 (2003) (finding that
9
the appellant exhausted the matters specifically discussed during a telephone
conversation with OSC). Here, however, the appellant has not met her burden on
exhaustion because she has not identified any particular post-settlement action
that she discussed with OSC. See Baldwin, 113 M.S.P.R. 469, ¶ 8. Accordingly,
we find that the Board lacks jurisdiction over her IRA appeal.2
The appellant has not established a basis for a protective order under 5 U.S.C.
§ 1204(e)(1)(B).
Below, the appellant filed three motions for protective orders based on the
same purported criminal conduct underlying her involuntary retirement claim.
IAF, Tabs 4, 11, 20. The administrative judge apparently denied those motions
because the Board lacked jurisdiction over her post-separation claims. ID
at 8 n.3. On review, the appellant argues that the administrative judge erred in
denying her motions. PFR File, Tab 5 at 7.
The Board and its administrative judges are authorized to issue any order
that may be necessary to protect a witness or other individual from harassment in
connection with a pending Board matter. 5 U.S.C. § 1204(e)(1)(B); 5 C.F.R.
§ 1201.41(b)(14). A request for such a protective order will not be granted unless
the moving party offers a concise statement of the reasons and any relevant
documentary evidence. 5 C.F.R. § 1201.55(d). The Board will not grant such an
order based on mere speculation. Pumphrey v. Department of Defense ,
122 M.S.P.R. 186, ¶ 14 (2015). As explained above, neither the appellant’s
petition for review, nor her submissions before the administrative judge, contain
sufficient information from which the Board could conclude that she has been, or
may be, subjected to the sort of harassment from which 5 U.S.C. § 1204(e)(1)(B)
(i) was meant to afford protection. Therefore, we find that the appellant has not
shown that she was entitled to a protective order and, to the extent that the
administrative judge erred in relying on the incorrect standard in considering her
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
10
motions, that error is not a basis for review. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
12
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
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. | Wattawa_Lori_A_CH-3443-17-0551-I-1 Final Order.pdf | 2024-03-20 | LORI ANN WATTAWA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-3443-17-0551-I-1, March 20, 2024 | CH-3443-17-0551-I-1 | NP |
1,992 | https://www.mspb.gov/decisions/nonprecedential/Young_Daniel_DC-1221-17-0423-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL YOUNG,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
DC-1221-17-0423-W-2
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul V. Bennett , Esquire, Annapolis, Maryland, for the appellant.
Joanna M. DeLucia , Esquire, Greenbelt, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely refiled. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The following facts are not in dispute. The appellant timely filed an initial
appeal on April 5, 2017. Young v. National Aeronautics and Space Admin , MSPB
Docket No. DC-1221-17-0423-W-2, Refiled Appeal File (RAF), Tab 5, Initial
Decision (ID) at 1. Throughout the proceedings, the appellant and his
then-counsel failed to timely and adequately respond to the agency’s discovery
requests and the administrative judge’s orders to produce discovery responses.
ID at 2-3. As excuse for this behavior, the appellant’s counsel claimed she was
very ill during the response period but failed to provide any documentation
supporting her claim. Id. The administrative judge sanctioned the appellant by
limiting the evidence and testimony he could present. Id. The administrative
judge held the first day of the hearing on September 18, 2017. ID at 3. The
second day of the hearing was scheduled for November 2, 2017. Id.
On November 1, 2017, at 7:00 p.m., the appellant’s counsel submitted a
motion for continuance, stating that she was recovering from the flu and would
not be able to attend the hearing the following day. Id. She did not contact the
agency or the administrative judge before filing her motion. Id. When the2
appellant and his counsel failed to appear for the second day of the hearing, the
administrative judge dismissed the appeal without prejudice for refiling. Id. The
administrative judge set the deadline to refile as January 2, 2018, and instructed
the appellant that his refiling must provide medical documentation regarding the
incapacity of counsel for the second day of the hearing as well as an explanation
of why counsel was unable to contact the agency prior to filing the motion for
continuance. ID at 3-4. The appellant refiled his appeal on January 11, 2018,
9 days after the deadline to refile. ID at 4.
The appellant’s untimely refiling did not address either of the requirements
imposed by the administrative judge, but rather merely stated that his counsel
“reserve[d] the right to retain the privacy of her medical information” and that
she would provide proof of medical care to the administrative judge “directly, and
in confidence.” Id.; RAF, Tab 1 at 4. The administrative judge issued an order to
the appellant to show good cause to waive the late refiling. ID at 4; RAF, Tab 2
at 2-4. He also ordered the appellant to show good cause to continue the hearing.
ID at 4; RAF, Tab 2 at 4-5. The appellant’s counsel submitted an unsworn
pleading in which she requested that the appellant not be penalized for her illness.
ID at 4-5; RAF, Tab 3. His counsel stated that she had “represented him
diligently for well over a year, and only missed the deadline for requesting a new
hearing due to an unexpected and prolonged illness, which culminated in her
emergency hospitalization.” ID at 5; RAF, Tab 3 at 4. The agency filed a
response objecting to the reopening of the appellant’s appeal, arguing that the
appellant failed to establish good cause for his untimely refiling. ID at 5; RAF,
Tab 4 at 5-7.
The administrative judge issued an initial decision dismissing the refiled
appeal, finding no good cause shown for the delay. ID at 5. She found that the
appellant provided insufficient evidence to support his claim that his counsel was
ill and hospitalized. ID at 6-7. She was not persuaded by the appellant’s claim
that his counsel had “represented him diligently for well over a year” because his3
counsel had repeatedly missed deadlines, failed to respond to the administrative
judge’s order, and requested continuance the night before the second day of the
hearing, after the regional office was closed, and without first contacting the
agency. ID at 6. Thus, the administrative judge found that the appellant failed to
demonstrate good cause for waiving the refiling deadline. ID at 7.
Through new counsel, on March 1, 2018, the appellant has filed a petition
for review of the initial decision. Petition for Review (PFR) File, Tab 1 at 3. The
appellant argues that he should not be punished for the errors of his prior counsel,
the 9-day delay in refiling was minimal, the agency is not prejudiced by waiving
the deadline, and that deciding this case on a technicality rather than the merits is
a gross miscarriage of justice. Id. at 7-11.
DISCUSSION OF ARGUMENTS ON REVIEW
It is undisputed that the appellant’s refiling was untimely by 9 days. The
Board may waive its time limits upon a showing of good cause for the delay in
filing. Glover v. Office of Personnel Management , 92 M.S.P.R. 48, ¶ 5 (2002),
aff’d per curiam , 66 F. App’x 201 (Fed. Cir. 2003). To establish good cause for a
filing delay, a party must show that he exercised diligence or ordinary prudence
under the particular circumstances of the case. Id. In determining whether good
cause has been shown, the Board will consider the length of the delay, the
reasonableness of the excuse and a showing of due diligence, whether the party 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. Id. (citing Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184
(1980)). The Board has consistently used the Alonzo standard to determine
whether good cause exists to waive the timeliness requirement for both original
actions and refiled actions. Baumunk v. Department of Health and Human
Services, 69 M.S.P.R. 622, 625 (1996).2 The Board has held that its dismissal
2 The administrative judge stated in the Acknowledgment Order, and then applied in the
Initial Decision, a set of factors applicable to an untimely refiling in instances wherein4
without prejudice should not become a trap to deny the unwary pro se appellant
the opportunity to have his case decided on the merits. Brown v. Office of
Personnel Management , 86 M.S.P.R. 417, ¶ 8 (2000).
On review, the appellant does not challenge the administrative judge’s
finding that he failed to substantiate his prior attorney’s claimed medical excuse.
PFR File, Tab 1 at 11; ID at 7; see White v. Department of Justice , 103 M.S.P.R.
312, ¶ 13 (2006) (finding an appellant’s speculation that his representative’s
medical problems may have hindered her ability to file on time was insufficient
because he failed to show how her medical conditions prevented her from timely
filing), aff’d per curiam , 230 F. App’x 976 (Fed. Cir. 2007). Rather, he contends
that the 9-day delay did not prejudice the agency and that it was the errors of his
prior counsel that ultimately led to the untimely filing. PFR File, Tab 1 at 8-11.
This argument is unpersuasive. The agency’s lack of demonstrated prejudice is
not a factor relevant to the good cause analysis, and the Board will consider the
issue of prejudice to the agency only after the appellant has shown good cause for
an untimely filing. Garcia v. Department of Veterans Affairs , 66 M.S.P.R. 610,
615 (1995). Furthermore, the appellant has not demonstrated diligence
throughout the proceedings: his counsel failed to respond to the agency’s
discovery request, did not oppose the agency’s motion to compel, untimely and
inadequately responded to the administrative judge’s order to respond to
discovery, received sanctions limiting the evidence and testimony the appellant
could provide, missed the second day of the hearing, and failed to timely refile.
the dismissal without prejudice was a result of pending criminal proceedings. RAF,
Tab 2 at 2; ID at 5-7 (citing Nelson v. U.S. Postal Service , 113 M.S.P.R. 644, ¶ 8
(2010), aff’d per curiam , 414 F. App’x 292 (Fed. Cir. 2011)). However, the
Acknowledgment Order correctly identified the factors set forth in Alonzo as well, and
the analysis within the initial decision is nevertheless correct. RAF, Tab 2 at 2 n.2.
Further, the appellant’s petition for review also correctly cites the “due diligence and
ordinary prudence” standard to establish good cause for an untimely filing. PFR File,
Tab 1 at 8. Thus, any error in providing the standard specific to delays related to
criminal matters was harmless. See Gordon v. Department of Army , 83 M.S.P.R. 545,
¶ 6 (1999) (finding that, absent an adverse effect on an appellant’s substantive rights,
any error by the administrative judge is harmless and thus of no legal consequence).5
ID at 2-4; Young v. National Aeronautics and Space Admin , MSPB Docket No.
DC-1221-17-0423-W-1, Initial Appeal File, Tabs 16, 8-20, Tab 23 at 2-3; RAF,
Tab 3. Despite these failings, the appellant did not obtain new counsel until after
the administrative judge dismissed his refiled appeal. PFR File, Tab 1 at 2, 8.
The Board has routinely held that appellants are bound by the action or
inaction of their chosen representatives. Strong v. Department of Navy ,
86 M.S.P.R. 243, ¶ 7 (2000). Negligence on the part of an appellant’s attorney
does not constitute good cause for a late filing, even if the filing was late by only
1 day. Goldberg v. Department of Defense , 39 M.S.P.R. 515, 518 (1989). The
Board will only bypass this general rule when the appellant has proven that his
diligent efforts to prosecute his appeal were, without his knowledge, thwarted by
the attorney’s deceptions and negligence. Strong, 86 M.S.P.R. 243, ¶ 7. The
appellant has not proven such here. The record reflects that the appellant was
aware of his counsel’s illness prior to the untimely refiling of his appeal. ID at 2.
The appellant’s prior counsel was unresponsive, missed deadlines, and did not
appear for the second day of the hearing; all allegedly due to illness. ID at 2-5.
The appellant should have known that he needed to either find a new
representative or take action himself; yet, he waited months after learning of his
counsel’s health problems, and ultimately until after his counsel untimely refiled
his appeal, to seek new counsel. Compare Herring v. Merit Systems Protection
Board, 778 F.3d 1011, 1012-15 (Fed. Cir. 2015) (finding good cause for a 10-day
filing delay when the appellant had taken all steps necessary to ensure a timely
filing, including contacting her attorney 6 days before the deadline), and Dabbs v.
Department of Veterans Affairs , 56 M.S.P.R. 57, 60 (1992) (finding good cause
when the appellant routinely monitored his counsel’s efforts and only ceased
when his counsel falsely told him an appeal had been filed), with Soleto v.
Department of Agriculture , 58 M.S.P.R. 253, 256 (1993) (finding no good cause
when the appellant was on notice that some additional action was necessary to
file his petition for review, but did not take further action). Waiting until after an6
untimely refiling to obtain new counsel, despite notice for months of both the
approaching deadline and his then-counsel’s general ongoing illness, is
insufficient to demonstrate the due diligence requisite for waiver.
Finally, the appellant argues that this appeal should be reopened in the
interest of justice. PFR File, Tab 1 at 9-11. He asserts that it would be unfair to
penalize him for his counsel’s illness and failure to substantiate the same. Id.
However, the case he cites as support for his position, Jackson v. Office of
Personnel Management , 89 M.S.P.R. 302 (2001), is distinguishable. PFR File,
Tab 1 at 11. In Jackson, 89 M.S.P.R. 302, ¶ 6, the appellant’s counsel admitted
to her calendaring error, which caused a delay in refiling. Considering this factor
and others, including the interest of justice and the lack of prior instances of
untimeliness in refiling, the Board exercised its discretion to waive the deadline
for the untimely refiled appeal. Id. In the instant appeal, the appellant has not
substantiated his claims that his counsel was ill, and, in any event, the delay was
not, as in Jackson, a one-time error. Id., ¶¶ 6, 9. As discussed above, the
appellant’s counsel repeatedly demonstrated an inability to comply with orders
and Board requirements. Accordingly, we affirm the initial decision dismissing
this appeal as untimely refiled.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Young_Daniel_DC-1221-17-0423-W-2__Final_Order.pdf | 2024-03-20 | DANIEL YOUNG v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. DC-1221-17-0423-W-2, March 20, 2024 | DC-1221-17-0423-W-2 | NP |
1,993 | https://www.mspb.gov/decisions/nonprecedential/Pulido_JosephDA-0752-22-0032-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH PULIDO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-22-0032-I-2
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Pulido , Houston, Texas, pro se.
Darren P. Tyus , Esquire, New Orleans, Louisiana, for the agency.
Sung H. Lee , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
On petition for review, the appellant appears to argue that the agency
should terminate his indefinite suspension because, according to him, his criminal
charges have been resolved. Petition for Review File, Tab 1 at 3. To the extent
that the appellant now contests the continuation of his indefinite suspension, the
Board declines to consider it on review.2 See Crowe v. Small Business
Administration, 53 M.S.P.R. 631, 635 (1992) (declining to consider arguments
raised on review concerning an issue that was not reflected in a prehearing
conference summary to which an appellant had an opportunity to, but did not,
object). After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
2 The order and summary of prehearing conference did not identify the continuation of
the appellant’s indefinite suspension as an issue in this appeal. Pulido v. Department of
Homeland Security , MSPB Docket No. DA-0752-22-0032-I-2, Appeal File (I-2 AF),
Tab 7 at 2. Further, the administrative judge did not address this argument in the initial
decision. I-2 AF, Tab 13, Initial Decision at 1-6. Thus, this claim is not properly
before us.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Pulido_JosephDA-0752-22-0032-I-2 Final Order.pdf | 2024-03-20 | JOSEPH PULIDO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-22-0032-I-2, March 20, 2024 | DA-0752-22-0032-I-2 | NP |
1,994 | https://www.mspb.gov/decisions/nonprecedential/Sun_XichunDC-1221-21-0257-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
XICHUN SUN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-21-0257-W-1
DATE: March 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ibidun Roberts , Esquire, Columbia, Maryland, for the appellant.
Michael J.A. Klein , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
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
On February 19, 2021, the appellant e-filed his appeal with the Board.
Initial Appeal File (IAF), Tab 1. The appeal contained no text but included a
close-out letter from the Office of Special Counsel (OSC) noting that it was
terminating its investigation into the appellant’s allegations that the agency
“investigated [him], suspended [his] clinical privileges, removed [him], assigned
[him] to a different office upon [his] return to the agency, placed [him] on
multiple focused professional practice evaluations, issued [him] a reprimand, and
denied [his] sick leave in retaliation for appealing [his] 2018 removal, engaging
in union activity, and cooperating with the Office of Inspector General in
September 2019.” Id. at 5. The e-appeal transmittal sheet instructed the
appellant to submit all hardcopy documents to the Central Regional Office (CRO)
and provided the mailing address, phone number, and fax number for that office.
Id. at 4. The appellant also received an email confirming that his appeal had been
filed and noting the same instructions for filing documents in hardcopy.2 Petition
for Review (PFR) File, Tab 1 at 8.
On February 23, 2021, the administrative judge issued a jurisdictional order
instructing the appellant to file evidence and argument supporting the Board’s
jurisdiction over his IRA appeal. IAF, Tab 3. It instructed him to specifically
identify the alleged protected activity and the personnel actions complained of.
Id. The appellant did not file a response. On March 15, 2021, the agency filed a
motion to dismiss the appeal for lack of jurisdiction and the administrative judge
issued an initial decision dismissing the appeal on the same day, finding no basis
for Board jurisdiction based on the documents in the record. IAF, Tabs 5, 6.
Unbeknownst to the administrative judge, on February 23, 2021, the same
day that she issued the jurisdictional order, the appellant had faxed a 77 -page
narrative submission to the CRO in accordance with the instructions received
2 These instructions appear to have been in error, as the appeal was adjudicated by the
Washington Regional Office (WRO) and not the CRO.2
from the Board. IAF, Tab 8 at 1; PFR File, Tab 1 at 10. The appellant sent the
same documents to the CRO by certified mail on the following day. PFR File,
Tab 1 at 11. On March 16, 2021, the WRO received the appellant’s 77 -page
submission, presumably from the CRO, and it was uploaded to the e-appeal
system on that same day. IAF, Tab 8.
The appellant has filed a petition for review of the initial decision, and the
agency has filed a response. PFR File, Tabs 1, 3. The appellant’s petition for
review asserts that he never received the jurisdictional order, but nonetheless, his
77-page submission was timely filed in accordance with instructions received
from the Board, and that this information is sufficient to establish jurisdiction
over the appeal. PFR File, Tab 1 at 1-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed his 77-page submission on February 23, 2021, in
accordance with the instructions contained in the initial appeal document and the
email he received confirming that his appeal was submitted. IAF, Tab 1 at 4,
Tab 8 at 1. The document was submitted prior to the close of the record before
the administrative judge. Thus, we will consider the evidence as if it had been in
the record at the time it closed. See Mandel v. Office of Personnel Management ,
86 M.S.P.R. 299, ¶ 4 (2000), aff'd, 20 F. App’x 901 (Fed. Cir. 2001) (reopening a
closed case to consider evidence that was inadvertently omitted from the
appellate record)). Moreover, the issue of Board jurisdiction may be raised at any
time during a proceeding. Morgan v. Department of the Navy , 28 M.S.P.R. 477,
478 (1985).
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity3
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A 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).
A nonfrivolous allegation is 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, a nonfrivolous allegation
is an allegation of “sufficient factual matter, accepted as true, to state a claim that
is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020). If an appellant establishes Board jurisdiction
over an IRA appeal by exhausting his administrative remedies before OSC and
making the requisite nonfrivolous allegations, he has a right to a hearing on the
merits of his claim. Grimes v. Department of the Navy , 96 M.S.P.R. 595, ¶ 6
(2004). Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of affording the appellant a
hearing. Id., ¶ 12.
For the following reasons, we find jurisdiction over this appeal and remand
the appeal for adjudication of the merits.
The appellant exhausted his administrative remedies with OSC.
As noted above, to establish jurisdiction over an IRA appeal, an appellant
must, among other things, establish OSC exhaustion by preponderant evidence.
Corthell, 123 M.S.P.R. 417, ¶ 8; see Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 9 (2011) (explaining that the appellant must prove
exhaustion with OSC, not merely present nonfrivolous allegations of exhaustion).
To satisfy the exhaustion requirement, the appellant must inform OSC of the4
precise ground of his charge of whistleblowing, giving OSC a sufficient basis to
pursue an investigation that might lead to corrective action. Mason, 116 M.S.P.R.
135, ¶ 8. An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. Id.
Upon considering OSC’s close-out letter and the appellant’s
correspondence with OSC, we find that the appellant exhausted the following
alleged protected activities with OSC: appealing his 2018 removal, engaging in
union activity, responding to a State Licensing Board inquiry in June 2019, and
cooperating with the Office of the Inspector General (OIG) in September 2019.
IAF, Tab 1 at 5, Tab 8 at 71; see Miller v. Federal Deposit Insurance
Corporation, 122 M.S.P.R. 3, ¶¶ 6-10 (2014) (quoting Ellison v. Merit Systems
Protection Board , 7 F.3d 1031, 1037 (Fed. Cir. 1993)) (noting that allegations of
protected activity must be specifically alleged before OSC with “reasonable
clarity and precision”), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). While the
appellant may have attempted to raise additional allegations of protected activity
in his 77-page submission, we find no evidence in the record that additional
activities beyond those described above were exhausted with OSC.3
To the extent that the appellant attempted to raise a claim that the agency
retaliated against him for a protected disclosure pursuant to 5 U.S.C. § 2302(b)
3 The appellant’s pleadings contain a vague reference to two OSC complaints filed in
2017. IAF, Tab 8 at 4. To the extent the appellant is claiming that his alleged 2017
OSC complaints constitute protected activity, we find no evidence that the appellant
exhausted this claim with OSC. The activity is not included in OSC’s close-out letter,
and its December 15, 2020 email to the appellant states, “OSC is not aware of any
protected activity you engaged in prior to your [May 2018] removal”). Id. at 13; IAF,
Tab 1 at 5. The appellant does not appear to have responded to this email. Even if we
were to find that the appellant proved that he exhausted this activity with OSC, the
appellant has not alleged that the agency had knowledge of the 2017 OSC complaints,
and thus, he has not nonfrivolously alleged that this activity was a contributing factor to
any of the personnel actions alleged. See 5 U.S.C. § 1221(e)(1)(A). 5
(8), he has failed to present evidence that he exhausted specific alleged protected
disclosures with OSC. IAF, Tab 8 at 76 (notifying the appellant that he did not
provide details to support an allegation of gross mismanagement, abuse of
authority, gross waste of funds, and substantial and specific danger to public
health). The appellant’s correspondence with OSC lacks any specificity
regarding alleged reprisal for making a protected disclosure under section 2302(b)
(8), such as details regarding the contents of his disclosures and the individuals to
whom they were made. Cf. Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied the exhaustion
requirement when, with reasonable clarity and precision, he informed OSC of the
content of his disclosure, the individual to whom it was made, the nature of the
personnel actions allegedly taken in retaliation, and the individuals responsible
for taking those actions).
As for the personnel actions that the appellant exhausted before OSC,
OSC’s close-out letter identifies the following agency actions: the agency
investigated the appellant, suspended his clinical privileges, removed him,
assigned him to a different office space upon his return to the agency, placed him
on multiple focused professional practice evaluations, issued a reprimand, and
denied him sick leave. IAF, Tab 1 at 5. Thus, we find that the appellant
exhausted his remedies with OSC regarding these alleged personnel actions.
The appellant has nonfrivolously alleged that he engaged in protected activity
when he participated in an OIG interview in September 2019.
The appellant’s filings do not identify which type of protected activity he is
alleging. As set forth below, we have thus considered whether each of the
allegations in the appellant’s OSC close-out letter constitutes a nonfrivolous
allegation of a protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D).
We first consider the appellant’s 2018 removal appeal submitted to the
Veterans Affairs Disciplinary Appeals Board. Under 5 U.S.C. § 2302(b)(9)(A)(i),6
it is a prohibited personnel practice “to take or fail to take, or threaten to take or
fail to take, any personnel action against ay employee or applicant for
employment because of the exercise of any appeal, complaint, or grievance right
granted by any law, rule or regulation, with regard to remedying a violation” of
5. U.S.C. § 2302(b)(8).4 Here, the appellant’s removal appeal itself is not in the
record. The appellant stated to OSC that his appeal “pointed out the absurdity of
the two investigations and suspension of my clinical privileges.” IAF, Tab 8
at 71. He has not, however, alleged that his 2018 removal appeal concerned
remedying an alleged violation of 5 U.S.C. § 2302(b)(8). We thus find that the
appellant’s removal appeal does not constitute protected activity under section
2302(b)(9)(A)(i) because he has not nonfrivolously alleged that his appeal
concerned remedying an alleged violation of 2302(b)(8), as set forth above. See
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013).
Next, we consider the appellant’s allegation the he was retaliated against
for engaging in union activity. IAF File, Tab 1 at 5. The appellant makes sparse
references to the union throughout his filing and notes that the union assisted him
in appealing his 2018 removal. IAF, Tab 8 at 29-30. Under 5 U.S.C. § 2302(b)
(9)(B), it is unlawful for an individual to take, fail to take, or threaten to take or
fail to take a personnel action because of the employee “testifying for or
otherwise lawfully assisting any individual in the exercise of any right referred to
in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” Performing union-related duties, such as
filing grievances and representing other employees in the grievance process, are
protected activities under section 2309(b)(9). Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 10 (2015). An appellant can establish that he was involved
in protected activity under section 2302(b)(9)(B) by proving that he testified or
assisted another employee in any appeal, complaint, or grievance right granted by
4 The Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112 -199,
126 Stat 1465, extended the Board’s jurisdiction over IRA appeals to claims arising
under 5 U.S.C. § 2302(b)(9)(A)(i), but not to those arising under (b)(9)(A)(ii). Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013).7
any law, rule, or regulation. Id., ¶ 13. The appellant has not alleged that he
testified or assisted another employee in the grievance process, and thus, we find
that he has failed to nonfrivolously allege that his union activity is protected
activity pursuant to section 2302(b)(9)(B).
We next consider the appellant’s June 2019 response to the State Licensing
Board. IAF, Tab 8 at 71.5 The response itself is not in the record, however, the
appellant explained in his filings that he “had to defend [his] practice and provide
documents to support [his] statement.” Id. at 37. To the extent the appellant is
attempting to allege that this constitutes protected activity, we find that he has
failed to make a nonfrivolous allegation that the June 2019 response was
protected under 5 U.S.C. § 2302(b)(9)(A)(i),(B),(C), or (D).
However, we find that the appellant has nonfrivolously alleged that he
engaged in activity protected by section 2302(b)(9)(C) when he cooperated with
or disclosed information to the OIG between September and November 2019, and
that he exhausted this protected activity with OSC. IAF, Tab 1 at 5, Tab 8 at 71;
see 5 U.S.C. § 2302(b)(9)(C) (defining protected activity as “cooperating with or
disclosing information to the Inspector General”). This allegation, accepted as
true, is sufficient to find jurisdiction pursuant to section 2302(b)(9)(C).
The appellant has nonfrivolously alleged that his September 2019 OIG activity
was a contributing factor to personnel actions taken by the agency.
As set forth above, OSC’s close-out letter identifies the following
personnel actions: the agency investigated the appellant, suspended his clinical
privileges, removed him, assigned him to a different office space upon his return
to the agency, placed him on multiple focused professional practice evaluations,
issued a reprimand, and denied him sick leave. IAF, Tab 1 at 5. The appellant
may demonstrate that a protected activity was a contributing factor in a personnel
5 The appellant’s email to OSC refers to his response to the “SLE” inquiry in June 2019.
IAF, Tab 8 at 71. However, we believe this is a typographical error. The appellant
submitted a response to the State Licensing Board (SLB) in June 2019 and we believe
this is the alleged protected activity he intended to exhaust with OSC. Id. at 37. 8
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 activity 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). A protected activity that occurs after the
agency has already taken the personnel actions at issue cannot have been a
contributing factor in the personnel actions and does not support a nonfrivolous
allegation that the protected activity was a contributing factor in the personnel
actions. See Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 26 (2007)
(finding that disclosures that were made prior to the personnel actions at issue
could not have been contributing factors in the personnel actions). Thus, we
consider only the alleged personnel actions that occurred after the protected
activity in September 2019: extension of the Focused Professional Practice
Evaluation in October 2019, investigation into the appellant in November or
December 2019, June 2020 reprimand, and denial of a sick leave request in late-
June or early-July 2020. IAF, Tab 1 at 5, Tab 8 at 7, 40, 47-48, 56, 59 -61. The
remaining personnel actions identified in the close-out letter occurred prior to
September 2019.
A letter of reprimand is a personnel action within the meaning of the
Whistleblower Protection Act. Horton v. Department of Veterans Affairs ,
106 M.S.P.R. 234, ¶ 18 (2007). Regarding the appellant’s remaining allegations,
the definition of “personnel action” includes “any . . . significant change in
duties, responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).
While the U.S. Court of Appeals for the Federal Circuit has held that retaliatory
investigations, in and of themselves, do not constitute personnel actions, Sistek v.
Department of Veterans Affairs , 955 F.3d 948, 954-55 (Fed. Cir. 2020), the
Board has found that agency actions that, individually or collectively, have
practical and significant effects on the overall nature and quality of an9
employee’s working conditions, duites, or responsibilities constitute a personnel
action covered by section 2302(a)(2)(A)(xii), Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶¶ 15-16. We find that, similar to Skarada, the actions
complained of, if proven true, could meet this threshold. Id., ¶ 18 (concluding
that the appellant’s allegations that agency personnel harassed him, subjected him
to a hostile work environment, subjected him to multiple investigations, accused
him of fabricating data, refused his request for a review of his position for
possible upgrade, yelled at him, and failed to provide him the support and
guidance to successfully perform his duties amounted to a nonfrivolous allegation
of a significant change in his working conditions). Insofar as the appellant
alleged that management was aware of his September 2019 OIG activity and that
the personnel actions commenced shortly thereafter, we find that he has satisfied
the contributing factor jurisdictional element. IAF, Tab 8 at 7-8, PFR File, Tab 1
at 5; see Easterbrook, 85 M.S.P.R. 60, ¶ 7.
Accordingly, we find that the appellant made a nonfrivolous allegation of
jurisdiction and that he is entitled to 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 submit any other
evidence that the administrative judge deems necessary to adjudicate the merits of
the appeal.6 Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 14 (2016).
6 Our jurisdictional findings herein are based on the appellant’s 77-page submission.
IAF, Tab 8. If the administrative judge deems it necessary, she may make further
findings regarding which personnel actions and protected activities and/or disclosures
are properly before the Board and fully address the appellant’s arguments and evidence
as to those matters.10
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.11 | Sun_XichunDC-1221-21-0257-W-1 Remand Order.pdf | 2024-03-20 | XICHUN SUN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-21-0257-W-1, March 20, 2024 | DC-1221-21-0257-W-1 | NP |
1,995 | https://www.mspb.gov/decisions/nonprecedential/Wallace_Lee_A_AT-0752-21-0606-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEE A. WALLACE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-21-0606-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Schnitzer , Esquire, Pikesville, Maryland, for the appellant.
Krista M. Irons , 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
sustained his removal from his position as a Carrier Technician based on the
charge of unacceptable conduct. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
For the most part, the appellant’s petition consists of arguments that he did
not engage in the conduct underlying his removal. Petition for Review (PFR)
File, Tabs 3, 9. To this end, the appellant challenges witness statements and
testimony, as well as the administrative judge’s findings about the same. PFR
File, Tab 3 at 4-13, 17, Tab 9 at 13-19; Initial Appeal File (IAF), Tab 29, Initial
Decision (ID) at 3-6. However, he has not provided sufficiently sound reasons
for overturning the credibility findings underlying the administrative judge’s
findings of fact, which are entitled to deference. ID at 3-6; see Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
Turning to the appellant’s affirmative defenses, the appellant presented a
harmful procedural error claim below, but the administrative judge found it
unproven. IAF, Tab 14 at 4; ID at 8. On review, the appellant does not challenge
that finding. PFR File, Tabs 3, 9. The appellant also asserted affirmative
defenses of disability discrimination based on disparate treatment and failure to
accommodate, which the administrative judge also found unproven. IAF, Tab 14
at 6; ID at 9-11. On review, the appellant alludes to alleged violations of his
2 Despite it appearing untimely by a little more than a minute, Petition for Review
(PFR) File, Tabs 2, 3, the appellant argues that his petition was either timely or he has
good cause for the untimeliness, PFR File, Tab 7. Because we are denying the petition
on the merits, we need not decide this timeliness issue.
3
reasonable accommodations but provides no basis for disturbing the
administrative judge’s finding that he failed to prove that he was denied any
accommodation or that any such denial excused his misconduct. PFR File, Tab 3
at 8, 13, Tab 9 at 26; ID at 9-10; see Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 106 (1997) (stating that the Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
Regarding disparate treatment, the appellant notes on review that his managers
were aware of his disabilities. PFR File, Tab 3 at 9. But he does not appear to
substantively argue that his disability was a motivating factor in the agency’s
decision to remove him. Id. We find no reason to disturb the administrative
judge’s finding that it was not. ID at 10-11.3 Lastly, the appellant raised below
an affirmative defense of reprisal for equal employment opportunity (EEO)
activity, and he re-raises this claim on review. IAF, Tab 14 at 5-6; PFR File,
Tab 3 at 10. Specifically, he suggests that a witness for the agency lied about the
misconduct underlying the appellant’s removal in retaliation for an EEO
complaint that the appellant directed at this individual. PFR File, Tab 3 at 4,
9-10. However, the administrative judge credited this witness’ testimony and
discerned no retaliatory motive on the part of this individual or any other agency
actor. ID at 6, 12. We find no reason to disturb her findings.4 See Crosby,
74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
Next, the appellant argues that the administrative judge erroneously limited
his ability to elicit witness testimony. PFR File, Tab 9 at 17. But the appellant
failed to preserve this argument by objecting below. IAF, Tab 19 at 6, Tab 27,
Hearing Recording. The appellant also appears to present—for the first time on
3 Because the administrative judge found that the appellant failed to show that disability
discrimination was a motivating factor in the removal action, we need not reach the
question as to whether it was a “but-for” cause of the action. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 40, 42.
4
review—an affirmative defense of reprisal for filing a police report and
arguments about the agency’s investigation and his opportunity to respond to the
charges. PFR File, Tab 3 at 4-5, 11, Tab 9 at 16. The Board will not consider
these arguments because they are raised for the first time on review. See Pridgen
v. Office of Management and Budget , 2022 MSPB 31 , ¶ 34 n.10; Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
Turning to the agency’s choice of penalty, the administrative judge applied
the proper standard and found the removal reasonable. ID at 13. On review, the
appellant seems to argue otherwise, based on alleged comparator employees that
also engaged in misconduct. PFR File, Tab 3 at 8.
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
the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. Chin v. Department of Defense , 2022 MSPB 34, ¶ 24;
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). One factor that
may be relevant is the consistency of the penalty with those imposed upon other
employees for the same or similar offenses. Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 10; see Douglas, 5 M.S.P.R. at 305. In Singh, we clarified that
the relevant inquiry regarding this factor is whether the agency knowingly and
unjustifiably treated employees differently. Singh, 2022 MSPB 15, ¶ 14.
4 The appellant argued reprisal for Title VII EEO activity and disability-based EEO
activity. IAF, Tab 14 at 6-7, 21. A “but-for” causation standard applies to the
appellant’s claims of reprisal for engaging in disability-based EEO activity. Pridgen,
2022 MSPB 31, ¶¶ 44-47. Because we agree with the administrative judge that the
appellant failed to meet the lesser burden of proving his protected activity was a
motivating factor in his removal, he necessarily failed to meet the more stringent
“but-for” standard that applies to his claim. ID at 12; see Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 32. Regarding the appellant’s claim of reprisal
for Title VII EEO activity, we affirm the administrative judge’s finding that he failed to
show that any prohibited consideration was a motivating factor in the agency’s action.
ID at 12. Therefore, we need not resolve the issue of whether he proved that a
prohibited consideration was a “but-for” cause of the agency’s action. Pridgen,
2022 MSPB 31, ¶¶ 20-22, 30.
5
The administrative judge found that the deciding official’s testimony and
decision letter reflected that he properly weighed the appropriate factors and that
the penalty of removal was within the bounds of reasonableness—even
considering the appellant’s 20-year length of service. ID at 13. We agree.
Regarding comparators, the administrative judge summarily stated, “[a]lthough
the appellant alleged that he was treated differently than other employees who
engaged in misconduct, the evidence he presented did not support this.” Id. She
did not expressly address what evidence the appellant had presented. Id. On
review, the appellant presents only a bare allegation that another carrier at the
Gainesville Post Office—where the appellant was employed—cursed at
management across the workroom floor and was never disciplined, which does
not give us a reason to disturb the initial decision. PFR File, Tab 3 at 8. In
examining the evidence of purported comparators presented by the appellant
below, we agree with the administrative judge’s conclusion that he failed to prove
disparate penalties. IAF, Tab 14 at 4, Tab 15 at 4, Tab 16 at 7; ID at 13.
The appellant had argued that the agency failed to employ progressive
discipline in his case as it had for a Mail Handler at the Gainesville Post Office,
removed in July 2015, and a Rural Carrier at the Forsyth Post Office, removed in
June 2020, both of whom had discipline in their files at the time of their
removals. IAF, Tab 5 at 27, Tab 14 at 4, Tab 15 at 4-11, Tab 16 at 4-10. He
further noted that the latter of these employees was previously charged with
unacceptable conduct but received a 14-day suspension instead of removal. IAF,
Tab 5 at 27. However, the appellant did not show that these employees were
within his same chain of command or that the individuals’ prior misconduct for
which they received a lesser penalty closely resembled the appellant’s
misconduct, or that the purported comparators were in other circumstances such
that they closely resembled those of the appellant, such that the consistency of the
penalties should have been considered as a factor in determining the
appropriateness of the appellant’s penalty. IAF, Tab 15 at 4-11, Tab 16 at 4-10;
6
see Singh, 2022 MSPB 15, ¶¶ 13-18. Thus, we find no evidence of disparate
penalties in the appellant’s case and affirm the initial decision sustaining the
appellant’s removal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Wallace_Lee_A_AT-0752-21-0606-I-1 Final Order.pdf | 2024-03-20 | LEE A. WALLACE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-21-0606-I-1, March 20, 2024 | AT-0752-21-0606-I-1 | NP |
1,996 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-4324-18-0541-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
CH-4324-18-0541-I-1
CH-3330-18-0514-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Gary Levine , Esquire, Hines, Illinois, for the agency.
Stephanie Gael Macht , Esquire, Westchester, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed petitions for review of the initial decisions, which
denied the appellant’s requests for corrective action under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) and the
Veterans Employment Opportunities Act. We have JOINED these appeals on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review because we have determined that doing so will expedite processing of the
cases and will not adversely affect the interests of the parties. 5 C.F.R.
§ 1201.36(a)(2), (b). In his petitions for review, the appellant argues that he
established his right to corrective action under both statutory provisions.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these appeals, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 We note that, at the end of the initial decision addressing the appellant’s USERRA
claim, the administrative judge stated that “The appeal is DISMISSED.” Hendy v.
Department of Veterans Affairs , MSPB Docket No. CH-4324-18-0541-I-1, Initial
Decision at 23 (Apr. 23, 2019). We perceive this as an inadvertent error because the
administrative judge found Board jurisdiction and adjudicated the appellant’s USERRA
claim on the merits. Therefore, the correct disposition, as the administrative judge
indicated on page 1 of the initial decision, is that the appellant’s request for corrective
action is denied.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 | Hendy_David_M_CH-4324-18-0541-I-1 Final Order.pdf | 2024-03-20 | null | null | NP |
1,997 | https://www.mspb.gov/decisions/nonprecedential/Messal_PamelaDE-0752-20-0137-C-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA MESSAL,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-0752-20-0137-C-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan C. Nerney , Ladera Ranch, California, for the appellant.
Stephanie Rapp-Tully , Washington, D.C., for the appellant.
Julie Nelson , Golden, Colorado, for the agency.
Rayann Brunner , 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 her petition for enforcement for lack of jurisdiction. On petition for
review, the appellant argues that the parties reached an oral settlement agreement
in the underlying removal appeal, and that the Board should enforce that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agreement. Generally, we grant 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 | Messal_PamelaDE-0752-20-0137-C-1 Final Order.pdf | 2024-03-20 | PAMELA MESSAL v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-0752-20-0137-C-1, March 20, 2024 | DE-0752-20-0137-C-1 | NP |
1,998 | https://www.mspb.gov/decisions/nonprecedential/Madsen_Richard_T_SF-3443-22-0485-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD T. MADSEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3443-22-0485-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
ichard T. Madsen , Richland, Mississippi, pro se.
Coleen L. Welch , Martinez, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his nonselections for lack of jurisdiction. On petition for
review, the appellant argues that the Board has jurisdiction over his nonselection
claims because the agency engaged in a prohibited personnel practice under
5 U.S.C. § 2302(b) in its decisions not to select him for the positions to which he
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
applied. Petition for Review File, Tab 1 at 4. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly dismissed the appeal for lack of
jurisdiction. Initial Appeal File, Tab 8, Initial Decision at 1, 5. It is well settled
that an unsuccessful candidate for a Federal civil service position generally has
no right to appeal his nonselection to the Board.2 Kazan v. Department of Justice ,
112 M.S.P.R. 390, ¶ 6 (2009); see Ellison v. Merit Systems Protection
Board, 7 F.3d 1031, 1034 (Fed. Cir. 1993). Regarding the appellant’s claim that
the agency engaged in a prohibited personnel practice in violation of 5 U.S.C.
§ 2302(b)(6) in the hiring process, the Board has held that prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction and that, absent an otherwise appealable action, it lacks jurisdiction
to hear those claims. See Pridgen v. Office of Management and Budget ,
2 The Board has limited jurisdiction to consider nonselection claims under certain
circumstances, such as when the claim is within the context of an individual right of
action appeal concerning whistleblower reprisal, or when it is within the context of a
Uniformed Services Employment and Reemployment Rights Act or Veterans
Employment Opportunities Act appeal. See Becker v. Department of Veterans Affairs ,
107 M.S.P.R. 327, ¶ 5 (2007 ). The appellant has not raised any of these claims.2
117 M.S.P.R. 665, ¶ 7 (2012); Wren v. Department of the Army , 2 M.S.P.R. 1, 2
(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Accordingly, we affirm the
initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Madsen_Richard_T_SF-3443-22-0485-I-1_Final_Order.pdf | 2024-03-20 | RICHARD T. MADSEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3443-22-0485-I-1, March 20, 2024 | SF-3443-22-0485-I-1 | NP |
1,999 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Renee_DC-1221-21-0486-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE NELSON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-21-0486-W-1
DATE: March 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Renee Nelson , Silver Spring, Maryland, pro se.
Lauren S. Ruby , Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant is employed as a GS-12 Program Analyst at the agency’s
National Museum of Health and Medicine (NMHM) in Silver Spring, Maryland.
Nelson v. Department of Defense , MSPB Docket No. DC-1221-21-0486-W-1,
Initial Appeal File (IAF), Tab 1 at 2. On September 19, 2020, she filed a
whistleblower reprisal complaint with the Office of Special Counsel (OSC)
alleging that the agency retaliated against her for her protected disclosures and
activities. Id. at 54. In April 2021, OSC issued a final determination letter on
that complaint, OSC complaint number MA-20-2763, and closed out its
investigation. Id. at 21.
The appellant filed the instant IRA appeal and provided more than 1,000
pages of documents with her appeal. IAF, Tab 1. The administrative judge
issued an order notifying the appellant of her jurisdictional burden and instructed
her to file a concise statement detailing the elements of her claim, including a list
of each alleged protected activity and personnel action. IAF, Tab 3 at 1-7. The
appellant filed a response to the jurisdictional order and noted that OSC had
issued another close-out letter in another complaint, OSC complaint number
MA-21-1550. IAF, Tab 14 at 1, 11-12. The administrative judge subsequently
issued an order separately docketing the appellant’s claims related to that OSC
complaint as a new appeal, reasoning that the two appeals should not be joined
because they involved different protected activities and disclosures and different
personnel actions. IAF, Tab 15; see Nelson v. Department of Defense , MSPB
Docket No. DC-1221-22-0024-W-1, Initial Appeal File (0024 IAF), Tab 3 at 1.
After considering the appellant’s jurisdictional pleadings, the
administrative judge issued an initial decision concluding that the appellant failed
to meet her burden of proving Board jurisdiction over the instant appeal. IAF,
Tab 17, Initial Decision (ID) at 1-10. Specifically, he acknowledged that the
appellant had filed a complaint with OSC and received a close-out letter advising
her of her Board appeal rights. ID at 2-3; IAF, Tab 1 at 21-22. He also noted2
that OSC’s close-out letter identified that the appellant alleged she had been
subjected to retaliation for protected whistleblowing disclosures under 5 U.S.C.
§ 2302(b)(8) and protected activity under 5 U.S.C. § 2302(b)(9), including her
filing of a prior Board IRA appeal in 2016 and contacting the agency’s Office of
the Inspector General (OIG). ID at 2-3. However, the administrative judge did
not make any findings regarding whether she exhausted her administrative
remedy with OSC regarding these claims. Instead, he concluded that OSC had
declined to investigate the appellant’s allegations of whistleblower retaliation
because they were duplicative of issues that she raised her 2016 IRA appeal, and
also declined to take corrective action in connection with the appellant’s claims
under section 2302(b)(9). ID at 3.
After reviewing the OSC close-out letter and the appellant’s jurisdictional
pleadings, the administrative judge implicitly concluded that the appellant
nonfrivolously alleged that she engaged in protected activity under
section 2302(b)(9) in connection with her prior IRA appeal and her contacts with
the OIG. ID at 4, 7. Regarding potential personnel actions, the administrative
judge analyzed the appellant’s claim that she was subjected to a hostile work
environment and acknowledged that the creation of a hostile work environment
can constitute a personnel action in an IRA appeal. ID at 6. He nevertheless
concluded that the appellant failed to nonfrivolously allege that the hostile work
environment “took place on account of” her protected activity, and so she failed
to meet her jurisdictional burden. ID at 4, 6-10. Consequently, he dismissed the
appeal for lack of jurisdiction without holding the appellant’s requested hearing.
ID at 1-2, 10.
The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response to the petition for review and the
appellant has filed a reply. PFR File, Tabs 3-4.3
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erred by
obligating her to prove more than was required and by separately adjudicating her
three pending IRA appeals, thereby diminishing the strength of her claims. PFR
File, Tab 1 at 1-8. She also provides a chronological timeline of the events
underlying each of her three IRA appeals, detailing her numerous purported
disclosures, activities, and retaliatory personnel actions. Id. at 12-30. The
appellant also identifies a number of statutory and regulatory provisions that she
appears to believe the agency violated. Id. at 9-12. Finally, she argues that the
administrative judge abused his discretion and exhibited bias by staying
discovery, thus preventing her from obtaining information related to her case. Id.
at 6-7.
The administrative judge did not err by declining to join the appellant’s other
pending Board appeals.
The Board is authorized to join two or more appeals filed by the same
appellant and hear and decide them concurrently if it determines that joinder
would result in the appeals being processed more quickly and “would not
adversely affect any party. McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 10 (2011) (quoting 5 U.S.C. § 7701(f)(2)),
aff’d, 497 F. App’x 4 (Fed. Cir. 2012); 5 C.F.R. § 1201.36(a)(2), (b). The
decision whether to join appeals is a matter of the sound discretion of the
administrative judge in accordance with this guidance. McCarthy, 116 M.S.P.R.
594, ¶ 10.
Regarding the appellant’s argument that her three pending Board appeals
should have been considered together and that the administrative judge erred by
declining to join her appeals, the first of her three appeals, MSPB Docket
No. PH-1221-16-0453-W-1, was filed in September 2016, the initial decision was
issued in 2017, four years prior to the appellant filing her second and third
appeals, and a separate Board decision has already been issued in that appeal.4
PFR File, Tab 1 at 1-8. Additionally, the responding agency in that appeal is the
Department of the Army, while the Department of Defense (DoD) is the
responding agency in this appeal and the third appeal, MSPB Docket
No. DC-1221-22-0024-W-1. Thus, the first appeal was correctly adjudicated
separately.
With respect to the instant appeal and the 0024 appeal, as the
administrative judge noted in the order separately docketing the instant appeal,
the claims contained in this appeal concern separate allegations of wrongdoing
primarily related to the appellant’s allegation that she was subjected to a hostile
work environment in retaliation for her first Board appeal and for cooperating
with the agency’s OIG, while the 0024 appeal concerns her claim that she was
subjected to a background investigation in retaliation for her disclosures
concerning the agency’s collection of employee COVID-19 vaccination status
information. IAF, Tab 15. The appellant also filed separate complaints with the
Office of Special Counsel (OSC) and received separate OSC close-out letters
concerning each of these claims. Compare IAF, Tab 1 at 21-22, 39, 54-55, with
0024 IAF, Tab 1 at 14, Tab 10 at 69-72.
Further, the record reflects that although the appellant identified the
allegations that later became the basis for the 0024 appeal in her response to
OSC’s close-out letter in the instant appeal, OSC’s investigating attorneys noted
that it appeared the appellant was attempting to raise a new whistleblower
retaliation claim at that time and informed her on two separate occasions that she
could file a new complaint with OSC if she wished to separately pursue that
claim. IAF, Tab 1 at 127, 133-34. Sometime after May 4, 2021, and prior to
June 10, 2021, the appellant filed a new complaint, OSC complaint number
MA-21-1550, which served as the basis for the 0024 appeal. Id. at 133-34;
0024 IAF, Tab 1 at 14-15. Because we agree that the two appeals concern
distinct claims that the appellant separately raised and exhausted with OSC, we5
do not find that the administrative judge abused his discretion in separately
adjudicating the 0024 appeal and the instant appeal. ID at 2 n.1.
The appellant exhausted her administrative remedy with OSC.
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she 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). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an allegation of “sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see 5 C.F.R. § 1201.4(s) (defining a
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue). Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction.
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6 (2022).
The Board generally first considers whether the appellant established that
she exhausted her administrative remedy with OSC before turning to consider
whether her claims constitute nonfrivolous allegations of protected disclosures or
protected activities. See Carney v. Department of Veterans Affairs , 121 M.S.P.R.
446, ¶¶ 4-5 (2014) (stating that the first element to Board jurisdiction over an
IRA appeal is exhaustion by the appellant of her administrative remedies before
OSC and that the next requirement is that she nonfrivolously allege that she made
a protected disclosure or engaged in protected activity).
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 an6
investigation into her allegations of whistleblower reprisal. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may
demonstrate exhaustion through her initial OSC complaint or correspondence
with OSC. Id., ¶ 11 & n.7. She need only show that she advised OSC of the
“core of [her] retaliation claim,” thus giving “OSC sufficient basis to pursue an
investigation.” Briley v. National Archives and Records Administration , 236 F.3d
1373, 1377-78 (Fed. Cir. 2001) ; see Chambers, 2022 MSPB 8, ¶ 10 (explaining
that the appellant may give a more detailed account of his whistleblowing
activities before the Board than he did to OSC (citing Briley, 236 F.3d at 1378)).
The purpose of requiring an appellant to exhaust her remedies with OSC before
filing an IRA appeal with the Board is to give OSC “the opportunity to take
corrective action before involving the Board in the case.” Id. Thus, “the Board’s
jurisdiction over an IRA appeal . . . is . . . limited to those issues that have been
previously raised with OSC.” Id. Accordingly, we will first consider whether the
appellant exhausted her administrative remedy with OSC and, if so, then consider
whether she made nonfrivolous allegations that she made a protected disclosure
or engaged in a protected activity that was a contributing factor to an agency
personnel action. See Salerno, 123 M.S.P.R. 230, ¶ 5.
The administrative judge did not make specific findings concerning which
of the appellant’s protected disclosures or activities and personnel actions she
exhausted with OSC, and instead concluded that she failed to nonfrivolously
allege that she was subjected to a hostile work environment based on any
potential protected activity. ID at 1-2, 10. In so doing, the administrative judge
identified the appellant’s protected disclosures or activities under 5 U.S.C.
§ 2302(b)(9) as her filing of several OIG complaints, a prior OSC complaint, and
her 2016 Board IRA appeal. ID at 7.
Although the appellant did not set forth a concise explanation of her
purported disclosures and activities as requested by the administrative judge, she
did provide detailed narrative statements and timelines identifying her various7
disclosures and activities. IAF, Tab 1 at 8-19, Tab 4 at 3-12, Tab 7 at 1-10. She
also indicated that she provided specific allegations and supporting
documentation to OSC, and her correspondence with OSC included in the record
reflects that she provided supporting information to OSC. IAF, Tab 1 at 46-53,
97, Tab 4 at 7, Tab 7 at 9.
Based on our review of the appellant’s lengthy initial appeal, we find that
she exhausted the following alleged protected disclosures and activities with
OSC: (1) in November 2015 and January 2017, she filed DoD OIG complaints,
which were referred to the Department of the Army Inspector General regarding,
among other things, alleged inaccurate Army Regulation 15-6 investigation
results, destruction of evidence, interference with her equal employment
opportunity (EEO) complaint process, being subjected to repeated harassment and
retaliation, the U.S. Army Medical Research and Material Command’s (MRMC)
refusal to investigate her complaints, being denied evidence demonstrating that
her agency shared her private protected employee information and private health
information with individuals without a need to know, and the agency sabotaging
her Office of Workers’ Compensation Programs (OWCP) worker’s compensation
claim, IAF, Tab 1 at 463-65, 616-17, 855-58; (2) she filed a complaint with OSC
alleging whistleblower reprisal in April 2015, id. at 23; Nelson v. Department of
the Army, MSPB Docket No. PH-1221-16-0453-W-1, Initial Appeal File
(0453 IAF), Tab 1 at 10; (3) she filed an IRA appeal with the Board in July 2016,
IAF, Tab 1 at 47-48, 54, 68; (4) in 2016-2018 and 2019-2020 she submitted
Freedom of Information Act (FOIA) requests seeking information regarding
potential violations of the Federal Acquisition Regulations (FAR) and Joint
Ethics Regulations (JER) by agency contractors, id. at 104; and (5) on March 28,
2017, she filed a complaint with the OIG for the Defense Health Agency (DHA)
alleging harassment and retaliation by her supervisor for her prior ongoing
whistleblowing activity, id. at 62-69. The appellant certified to the truthfulness
of the statements in her initial appeal. IAF, Tab 1 at 7; 0453 IAF, Tab 1 at 6.8
Accordingly, we find that the appellant established by preponderant evidence that
she exhausted her administrative remedy with OSC regarding these claims.
As with the appellant’s alleged protected disclosures and activities, the
administrative judge did not make a specific finding regarding whether the
appellant exhausted with OSC any of the challenged personnel actions. The
administrative judge determined that the only challenged personnel action was the
appellant’s claim that she was subjected to a hostile work environment, referring
to OSC’s close out letter. ID at 1-4. In describing the appellant’s hostile work
environment claim, the administrative judge characterized the claim as
encompassing “general and sweeping” allegations of wrongdoing, including as
examples, her allegations that agency officials denied her access to training,
falsified and withheld information regarding training, attempted to access private
medical and personal information, subjected her to unsubstantiated complaints,
and engaged in a host of other wrongdoing. ID at 8-9.
Although many of these alleged agency actions could be characterized as
aspects of her hostile work environment claim, the appellant’s jurisdictional
pleadings also include additional allegations that could, alone, constitute
personnel actions. Based on our review of the appellant’s jurisdictional
pleadings, we find that she also exhausted the following alleged personnel actions
with OSC: (1) beginning in 2014 or 2015 through the present, agency officials,
including the appellant’s supervisor and other agency managers and Office of
General Counsel (OGC) attorneys responsible for representing the agency in her
prior IRA appeal, created a hostile work environment by failing to act or
intervene on her behalf, conducting unlawful or incomplete investigations,
requiring her to complete an unnecessary financial disclosure form, sabotaging
her complaints, improperly attempting to obtain her medical records and OWCP
information, and failing to properly process her OWCP injury claims, among
other things, IAF, Tab 1 at 48, 54, 434, 615, Tab 4 at 7-9; PFR File, Tab 1 at 15;
(2) she was denied a 2014 annual performance appraisal or bonus after NMHM9
officials stripped her of her work duties without an alternative duty assignment or
position description, IAF, Tab 1 at 350-56, 675, Tab 4 at 6; (3) her supervisor
issued her a verbal and written reprimand on February 24, 2014, IAF, Tab 1
at 360, 434; (4) she received downgraded 2015, 2016, and 2017 performance
evaluations, IAF, Tab 1 at 9, 350, 411-12, 573; PFR File, Tab 1 at 15-17; (5) from
March 28 through July 2017, her supervisor threatened her with discipline if she
did not violate ethics regulations, IAF, Tab 4 at 7-8; PFR File, Tab 1 at 16;
(6) she was denied a requested reasonable accommodation of telework for her
February 24, 2014 workplace injury on various occasions, including in May and
June 2014, March 28 through July 2017, and February 2020, IAF, Tab 1 at 48,
Tab 4 at 7-8; and (7) at some point between March 28 and July 2017, she was
threatened with discipline for participating in mandatory teamwork and workplace
bullying training workshops, IAF, Tab 1 at 978-80, Tab 4 at 7-8. Consequently,
we conclude that the appellant exhausted the above claims with OSC.
The appellant nonfrivolously alleged that she engaged in protected activities and
was subjected to covered personnel actions.
The appellant nonfrivolously alleged that she engaged in protected
activities under 5 U.S.C. § 2302(b)(9).
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to
take an action against an employee because that employee “disclos[ed]
information to the Inspector General . . . of an agency, or the Special Counsel, in
accordance with applicable provisions of law.” As set forth in greater detail
above, the administrative judge correctly found, and the parties do not dispute on
review, that the appellant engaged in protected activity under 5 U.S.C.
§ 2302(b)(9) with respect to her 2015 through 2017 DoD and DHA OIG
complaints and her 2015 OSC complaint. ID at 7; supra pp. 7-8; see Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 62 (clarifying that, under
5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OSC is protected,
regardless of the content). 10
Further, it is undisputed that the appellant alleged whistleblower reprisal in
her 2016 Board IRA appeal, and so that prior appeal constitutes a protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), which includes the exercise of any
appeal, complaint, or grievance right with regard to remedying a claim of
whistleblower reprisal. Nelson v. Department of the Army , PH-1221-16-0453-
W-1, Initial Decision at 1-6 (Mar. 12, 2024); 0453 IAF, Tab 15; see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 10 (2016) (explaining that a claim
of retaliation for filing a prior Board appeal that included a claim of
whistleblower reprisal was a protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i)); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365,
¶ 7 (2013) (recognizing that the WPEA expanded the Board’s IRA jurisdiction to
include reprisal for activity under 5 U.S.C. § 2302(b)(A)(i)).
Regarding the appellant’s filing of FOIA requests for information
concerning potential FAR/JER violations by agency contractors during the period
from 2016 through 2018 and 2019-2020, we conclude that this is not a protected
disclosure under 5 U.S.C. § 2302(b)(8). While the Board has held that a
disclosure of a violation of FOIA may constitute a protected disclosure under
5 U.S.C. § 2302(b)(8), the appellant has not pointed to any Board precedent, and
we are aware of none, finding that the mere act of filing a request for information
under FOIA, without more, constitutes a protected disclosure under 5 U.S.C.
§ 2302(b)(8), even if her decision to do so was based on a personal belief that the
request would produce evidence of illegality. Cf. Bump v. Department of the
Interior, 64 M.S.P.R. 326, 332 (1994) (concluding that the appellant
nonfrivolously alleged that he made a protected disclosure based on his specific
allegations that the agency was violating FOIA).
The appellant’s filing of a FOIA request also does not constitute protected
activity under 5 U.S.C. § 2302(b)(9) because a request for information under
FOIA is not the “exercise of any appeal, complaint, or grievance right,” and does
not concern “remedying a violation of [5 U.S.C. § 2302(b)(8)].” See 5 U.S.C.11
§ 2302(b)(9)(A)(i); Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434,
¶ 18 (2016) (finding that the appellant had not exercised any appeal, complaint,
or grievance right as described in section 2302(b)(9) when the appellant’s actions
did not constitute an initial step toward taking legal action against an employer
for a perceived violation of employment rights); cf. Mattison v. Department of
Veterans Affairs , 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (finding that the appellant’s
claim of retaliation for filing a FOIA appeal in which he did not seek to remedy
whistleblower reprisal arose under 5 U.S.C. § 2302(b)(9)(A)(ii)). Accordingly,
we find that the appellant nonfrivolously alleged that she engaged in protected
activity under 5 U.S.C. § 2302(b)(9) in connection with the following activities:
(1) her November 2015 and January 2017 DoD OIG complaints; (2) her 2015
OSC complaint alleging whistleblower reprisal; (3) her July 2016 Board IRA
appeal; and (5) her March 2017 DHA OIG complaint.
The appellant nonfrivolously alleged that she was subjected to personnel
actions under 5 U.S.C. § 2302(a).
As previously noted, the appellant exhausted with OSC her claims that the
agency took the following personnel actions against her: (1) she was subjected to
a hostile work environment caused by numerous agency officials during the
period from 2014 or 2015 through the present; (2) she was denied a 2014
performance appraisal and a bonus; (3) she received a verbal and written
reprimand in February 2014; (4) she received reduced 2015, 2016, and 2017
performance appraisals; (5) her supervisor threatened her with discipline in early
2017 in connection with her compliance with ethics regulations; (6) her telework
reasonable accommodation request was denied several times over the period from
May 2014 through February 2020; and (7) she was separately threatened with
discipline in early 2017 in connection with her participation in training
workshops. Supra p. 9.
Regarding actions (2) and (4), a “performance appraisal” is a covered
personnel action. 5 U.S.C. § 2302(a)(2)(A)(viii); Rumsey v. Department of12
Justice, 120 M.S.P.R. 259, ¶ 16 (2013) (clarifying that a “performance appraisal”
constitutes a personnel action for the purposes of an IRA appeal, irrespective of
whether the appraisal was tangibly lower than the prior year). Similarly, a denial
of a performance-based award can constitute a personnel action. See 5 U.S.C.
§ 2302(a)(2)(A)(ix) (defining a personnel action to include a “decision
concerning pay, benefits, or awards”); Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 14 n.5 (2015) (finding that the agency’s decision not to give
the appellant a 40-hour time-off award constituted a personnel action); Hagen v.
Department of Transportation , 103 M.S.P.R. 595, ¶ 13 (2006) (holding that the
denial of a cash award is a personnel action). Regarding action (3), a written
letter of reprimand is also a personnel action within the meaning of the
whistleblower reprisal statutes. Horton v. Department of Veterans Affairs ,
106 M.S.P.R. 234, ¶ 18 (2007).
With respect to actions (5) and (7), a threatened action can constitute a
personnel action under the Whistleblower Protection Enhancement Act of 2012
(WPEA) when it warns of future discipline. 5 U.S.C. § 2302(b)(8)-(9) (providing
that a threat to take a personnel action because of a protected activity or
disclosure is prohibited); 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); Campo v. Department of the Army , 93 M.S.P.R. 1,
¶¶ 7-8 (2002) (finding that a memorandum of warning that included the threat of
disciplinary action for any further misconduct was a personnel action).
Regarding action (6), a denial of reasonable accommodation is not
separately enumerated as a personnel action under 5 U.S.C. § 2302(a)(2)(A), and
the appellant has not otherwise explained why she believes that it fits the
definition of “personnel action” under that subparagraph. See Reid v. Merit
Systems Protection Board , 508 F.3d 674, 679 (Fed. Cir. 2007) (declining to
consider a conclusory allegation of a denial of reasonable accommodation for a13
disability as a “personnel action”). Nevertheless, the cancellation of a telework
agreement can constitute a personnel action to the extent that it represents a
significant change in an employee’s duties, responsibilities, and working
conditions. Rumsey, 120 M.S.P.R. 259, ¶ 23. Accordingly, we will consider the
appellant’s allegation that she was denied a reasonable accommodation request,
which impacted her ability to telework, as a part of her allegation that she was
subjected to a significant change in duties, responsibilities, and working
conditions, discussed in greater detail below, but not as a standalone claim that
she was subjected to a personnel action under 5 U.S.C. § 2302(a). See
Covarrubias v. Social Security Administration , 113 M.S.P.R. 583, ¶ 15 n.4 (2010)
(finding a nonfrivolous allegation of a significant change in working conditions
based, in part, on disability discrimination), overruled on other grounds by
Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
The appellant made a nonfrivolous allegation that her protected activities were a
contributing factor in at least one personnel action.
As set forth above, to establish the Board’s jurisdiction over her claims, the
appellant must nonfrivolously allege that a 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). Edwards v. Department of Labor,
2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7,
2023); Salerno, 123 M.S.P.R. 230, ¶ 5. 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 who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action.
Salerno, 123 M.S.P.R. 230, ¶ 13. However, the Board has held that if an
administrative judge determines that an appellant failed to satisfy the14
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
official 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).
In the initial decision, the administrative judge appears to have found that
the appellant failed to nonfrivolously allege contributing factor, in part, because
she failed to specify how the individuals responsible for the wrongful actions
against her were aware of her protected activity or why she believed they took the
actions with animus towards her for her protected activities. ID at 7, 9. We agree
with the administrative judge’s observation that many of the appellant’s claims
lack sufficient specificity to support a nonfrivolous allegation. While a
nonfrivolous allegation is not a stringent standard, the appellant’s general
assertion that NMHM, DHA, and MRMC leadership and staff, and officials from
other agencies all had knowledge of her protected disclosures and activities prior
to taking the challenged personnel actions, without any specific allegations about
how they became aware of her disclosures or activities, is vague and conclusory
and insufficient to meet the knowledge prong of the knowledge/timing test. IAF,
Tab 4 at 4-6, Tab 7 at 2. We turn now to address each purported personnel action
to determine whether the appellant nonfrivolously alleged that her protected
disclosures or activities were contributing factors in each of the personnel
actions.
The appellant failed to nonfrivolously allege contributing factor with
respect to personnel actions 2, 3, 5, and 7.
Regarding personnel action (2), the appellant alleged that on February 24
and 28, 2014, she was moved to another department and “stripped” of her work
duties without an alternative duty assignment or a position description for
6 months, resulting in her not being issued a performance appraisal or bonus on15
an unspecified date in 2014. IAF, Tab 1 at 350-56, 675, Tab 4 at 6. Although the
date range for the 2014 performance period and the date the appellant alleges that
she was denied a performance appraisal and a bonus are not specified, the 2013
performance year ran from November 2012 through November 2013 and the
appellant received her annual appraisal bonus for that year on December 11,
2013. IAF, Tab 1 at 412, 675. Before being moved to a different department,
during the period from 2006 through 2013, the appellant regularly received her
annual performance appraisal bonuses in the summer or fall, during the months
from August through December. Id. at 412. Assuming that, consistent with
previous practice, the appellant’s 2014 appraisal should have been issued by the
end of December 2014 at the latest, all of the appellant’s protected activities
occurred during the period from April 2015 through 2017, and so this purported
personnel action took place prior to any of the alleged protected activities at issue
in this appeal. Accordingly, the appellant’s protected activities could not have
been a contributing factor in the agency’s decision to take this personnel action.
See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that
because the subject personnel action predated the disclosure, the disclosure could
not have contributed to the personnel action), aff’d per curiam , 663 F. App’x 921
(Fed. Cir. 2016); Davis v. Department of Defense , 106 M.S.P.R. 560, ¶ 12 (2007)
(same), aff’d, 278 F. App’x 1009 (Fed. Cir. 2008). The same is true of personnel
action (3), which concerns the appellant’s claim that her supervisor issued her a
verbal and written reprimand on February 24, 2014. IAF, Tab 1 at 360, 434.
Consequently, we conclude that the appellant failed to nonfrivolously allege
contributing factor in connection with these personnel actions.
Regarding personnel actions (5) and (7), the appellant generally alleged
that her “new duty station supervisor” threatened her with discipline if she did not
violate FAR/JER ethics regulations, and other unspecified individuals threatened
her with punishment for participating in teamwork and workplace bullying
training workshops during the period from March 28 through July 2017. IAF,16
Tab 1 at 978-80, Tab 4 at 7-8. However, the appellant has not specifically
identified who threatened her, whether those individuals had knowledge of any of
her protected activities, whether her protected activities were personally directed
at them, or whether the individuals would have had a motive to retaliate against
her. These claims amount to little more than conclusory allegations of
wrongdoing insufficient to satisfy the contributing factor criterion even at the
nonfrivolous allegation stage. See Chambers, 2022 MSPB 8, ¶ 18 (finding that
conclusory and unsubstantiated speculation are insufficient to amount to a
nonfrivolous allegation of a retaliatory motive) (citing Sherman v. Department of
Homeland Security , 122 M.S.P.R. 644, ¶ 9 n.5 (2015); Jones v. Department of the
Treasury, 99 M.S.P.R. 479, ¶ 8 (2005)). Accordingly, we conclude that the
appellant failed to nonfrivolously allege that her protected activities were a
contributing factor in the agency’s decision to take these actions.
The appellant nonfrivolously alleged contributing factor with respect to
personnel action (4).
The appellant directed some of the complaints contained in her July 2016
IRA appeal and underlying April 2015 OSC complaint at the same supervisor who
was responsible for issuing her July 2015 and June 2016 performance appraisals.
Compare 0453 IAF, Tab 1 at 12 (identifying the appellant’s supervisor, referred
to here as Supervisor A, as one of the retaliating officials), with IAF, Tab 1 at 412
(identifying that same individual as the official who issued the appellant’s 2015
and 2016 annual appraisals). Additionally, although the appellant did not
personally direct her protected disclosures or activities toward a supervisor
(referred to here as Supervisor B) who was responsible for issuing her June 2017
annual appraisal, she stated in her jurisdictional pleadings that she believed that
this supervisor was a “scapegoat” and that it was the NMHM Director—one of the
subjects of her 2015 OSC complaint and 2016 IRA appeal—who directed “all
decision and actions that take place at the NMHM.” IAF, Tab 1 at 112, 41217
(identifying Supervisor B as the official who issued the appellant’s 2017 annual
appraisal).
An appellant may establish that a protected activity was a contributing
factor in a personnel action by proving that the official taking the action had
constructive knowledge of the protected disclosure, i.e., that an individual with
actual knowledge of the disclosure influenced the official accused of taking the
retaliatory action. Bradley v. Department of Homeland Security , 123 M.S.P.R.
547, ¶ 15 (2016). Consequently, to the extent that the appellant is alleging that
the NMHM Director was aware of her protected activities and influenced
Supervisor B to provide her with a reduced 2017 annual appraisal, we find that
fact, coupled with the fact that the reduced 2015, 2016, and 2017 appraisals
occurred within 1 to 2 years of the appellant’s OSC complaint and IRA Board
appeal, is sufficient to meet the contributing factor criterion at the jurisdictional
stage. See Skarada, 2022 MSPB 17, ¶ 19 (observing that a personnel action taken
within approximately 1 to 2 years of the appellant’s disclosure satisfies the
contributing factor knowledge/timing test); Mastrullo, 123 M.S.P.R. 110, ¶ 21
(same). Based on the foregoing, we conclude that the appellant nonfrivolously
alleged that her 2015 OSC complaint and 2016 Board IRA appeal were a
contributing factor in the agency’s decision to reduce her 2015, 2016, and 2017
performance appraisals.
We remand the appeal for the administrative judge to make additional
jurisdictional findings and to subsequently provide the appellant with her
requested hearing on the merits of her appeal.
Finally, we turn now to consider an issue thus far left unaddressed,
personnel action (1), which concerns the appellant’s claim that she was subjected
to a hostile work environment. As previously noted, the administrative judge
concluded that the appellant failed to nonfrivolously allege that she was subjected
to a hostile work environment based on the litany of actions she alleged were
taken against her over the course of several years, reasoning that the appellant18
had failed to link the purportedly retaliatory actions to any specific protected
activity, and so she failed to establish that the hostile work environment was
created “on account of” her prior protected activities. ID at 7-8. We disagree and
instead conclude that the appellant has alleged wrongful actions by the agency in
connection with her hostile work environment claim that, individually or
collectively, rise to the level of a significant change in her duties or working
conditions sufficient to constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii) for the purposes of an IRA appeal.
After the administrative judge issued the decision in this case, the Board
clarified that the creation of a hostile work environment may constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent that it
represents a significant change in duties, responsibilities, or working conditions.
Skarada, 2022 MSPB 17, ¶ 16. To meet this standard, an agency’s actions must,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities. Id. In determining whether a hostile work environment is
present, the Board will consider the totality of the circumstances, including
agency actions that may not individually rise to the level of a personnel action.
Id., ¶ 18. In Skarada, the Board found that the appellant in that case
nonfrivolously alleged he was subjected to a personnel action when the agency
excluded him from meetings and conversations, subjected him to multiple
investigations, accused him of fabricating data violating the Privacy Act, refused
his request for a review of his position for possible upgrade, yelled at him on
three occasions, and failed to provide him the support and guidance needed to
successfully perform his duties. Id.
In this case, the appellant alleged a number of wrongful actions by the
agency that she claims amounted to an ongoing hostile work environment
including, for example, that DHA OIG officials failed to intervene on her behalf
while investigating her complaint, specific named supervisors, coworkers, and19
OGC attorneys responsible for representing the agency in her prior IRA appeal
denied her access to FAR and JER Contracting Officer Representative (COR)
training necessary to perform her job duties, falsified and withheld information
related to corrective training requirements, sabotaged or failed to process her
complaints in order to conceal violations of law, forced her to file unnecessary
financial disclosure forms, denied her the opportunity to make corrections to her
personnel file and her OWCP work injury claims, attempted to improperly obtain
her medical records and OWCP information, and “continually subjected [her] to
unsubstantiated, and unfounded false complaints and employee character
assassinations” and investigations. IAF, Tab 1 at 25-36, 48, 54, 434, 615, Tab 4
at 7-10; PFR File, Tab 1 at 15. Further, as we previously found, although the
appellant’s allegation that several agency supervisors, including the NMHM
Director, denied her the reasonable accommodation of telework during the period
from March through July 2017 and October 2019 through February 2020 is not a
separate personnel action, we have considered it in the context of her allegation
that she was subjected to a significant change in duties, responsibilities, and
working conditions. See supra pp. 13-14.
Additionally, with her appeal the appellant submitted a copy of the DHA
OIG’s investigative finding that, from April 2016 to June 2017, an unnamed
supervisor subjected her to a hostile work environment. IAF, Tab 1 at 62, 75.
The appellant provided documentation alleging that although the investigation
was limited to her supervisor, who she claimed served as a “scapegoat” for the
agency and was terminated as a result of the findings, she also complained to the
OIG that the actions were taken “with the full knowledge, approval, and direction
of the NMHM Director” who was previously named in her 2016 IRA appeal and
who was the true harasser. Id. at 112; PFR File, Tab 1 at 19. The administrative
judge discounted the OIG findings, in part, because the OIG investigation covered
only harassment beginning in April 2016 and the appellant’s first IRA appeal was
filed in August 2016; however, the appellant also engaged in earlier protected20
activities, including by filing OSC and DoD OIG complaints in 2015. ID at 8;
IAF, Tab 1 at 65-69, 119.
Based on the foregoing, we find that the appellant’s contentions regarding
her hostile work environment claim, if accepted as true, collectively amount to a
nonfrivolous allegation of a significant change in working conditions sufficient to
rise to the level of a personnel action. See Skarada, 2022 MSPB 17, ¶ 18; see
also Mattil v. Department of State , 118 M.S.P.R. 662, ¶ 22 (2012) (finding that an
agency’s failure to process an appellant’s EEO complaint and OWCP claims in its
usual manner may be broadly construed as a significant change in working
conditions, which would be a personnel action); Covarrubias, 113 M.S.P.R. 583,
¶¶ 8, 15 n.4 (finding that the appellant made a nonfrivolous allegation of a
significant change in working conditions when she alleged, among other things,
that her supervisors harassed her and closely monitored her whereabouts, to
include following her to the bathroom).
Assessing whether the appellant has nonfrivolously alleged that her
protected activities were a contributing factor in the creation of the hostile work
environment, however, is a much more difficult task. As the administrative judge
correctly noted, the appellant’s jurisdictional pleadings addressing the nature of
her hostile work environment claim are voluminous, span multiple years, identify
dozens of agency officials from different agency subcomponents, and are not
organized in a manner conducive to resolving the specific questions of which
agency officials knew what, and when. The Board has held that it is not required
to pore through the record in order to construe or make sense of pleadings filed
by a party, and an appellant’s submissions that lack clarity run the risk of being
found to have failed to meet the requisite burden of proof. See, e.g., Keefer v.
Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002); Luecht v.
Department of the Navy , 87 M.S.P.R. 297, ¶ 8 (2000).
As set forth above, we have concluded that the administrative judge viewed
the appellant’s jurisdictional pleadings too narrowly in determining that the only21
purported personnel action that she raised and exhausted with OSC was her claim
that she was subjected to a hostile work environment sufficient to rise to the level
of a personnel action under 5 U.S.C. §2302(a)(2)(A)(xii). Instead, we have
addressed additional personnel actions the appellant identified in her submissions
to OSC and have now concluded that she nonfrivolously alleged that her 2015
OSC complaint and 2016 Board IRA appeal were a contributing factor in the
agency’s decision to reduce her 2015, 2016, and 2017 performance appraisals,
thereby satisfying her jurisdictional burden as to those claims. Supra pp. 18; see
Skarada, 2022 MSPB 17, ¶ 13 (explaining that, in cases when an appellant has
alleged multiple personnel actions, the Board has jurisdiction over the appeal
when the appellant exhausts her administrative remedy and makes a nonfrivolous
allegation that at least one alleged personnel action was taken in reprisal for at
least one alleged protected disclosure).
The Board’s ordinary practice after finding that an appellant met her
jurisdictional burden in an IRA appeal is to remand the appeal with an instruction
to the administrative judge to issue a decision based on the written submissions,
or, when a hearing was requested, to provide the appellant with her requested
hearing on the merits of her appeal. See Spencer v. Department of the Navy ,
327 F.3d 1354, 1356 (Fed. Cir. 2003); Shope v. Department of the Navy ,
106 M.S.P.R. 590, ¶ 5 (2007). In certain circumstances, however, the Board has
remanded the appeal for the administrative judge to further develop the record on
the issue of jurisdiction. See Wilcox v. International Boundary and Water
Commission, 103 M.S.P.R. 73, ¶¶ 15-16; Wells v. Department of Homeland
Security, 102 M.S.P.R. 36, ¶¶ 4, 9-10 (2006).
Given the extensive nature of the appellant’s allegations underlying her
hostile work environment claim and the fact that the administrative judge issued
the initial decision in this case without the benefit of our decision in Skarada, we
remand the appeal for the administrative judge to make new findings on the issue
of whether the appellant can establish that her protected activities were a22
contributing factor in the creation of a hostile work environment that constituted
a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). On remand, the
administrative judge may permit the parties to supplement the record on this
question. In so doing, the administrative judge may instruct the appellant to
provide detailed submissions identifying, with specificity, how each allegedly
retaliating official was responsible for creating a hostile work environment, and
whether and how each official was aware of the appellant’s protected activities.
See Keefer, 92 M.S.P.R. 476, ¶ 18 n.2 (cautioning that an appellant who fails to
articulate his claims with reasonable clarity and precision risks being found to
have failed to meet his burden).
After supplementing the record on this issue, the administrative judge
should then make a new jurisdictional determination that incorporates the
findings on jurisdiction contained in this order, and then provide the appellant
with her requested hearing on the merits of her appeal. If the appellant proves by
preponderant evidence that her protected activities were a contributing factor in
one or more of the personnel actions, the administrative judge shall order
corrective action unless the agency proves by clear and convincing evidence that23
it would have taken the same actions absent the protected activity.2 Salerno,
123 M.S.P.R. 230, ¶ 5; 5 U.S.C. § 1221(e).
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
To the extent necessary, the administrative judge should permit the parties to
supplement the record with additional argument, evidence, and testimony before
proceeding to a hearing on the merits of the appellant’s IRA appeal.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2 We find no merit to the appellant’s argument that the administrative judge abused his
discretion and was biased against her and in favor of the agency because he issued a
stay on discovery before issuing his jurisdictional finding. PFR File, Tab 1 at 6-7. An
administrative judge has broad discretion to regulate the proceedings before him,
including the authority to rule on discovery motions, and absent an abuse of discretion,
the Board will not reverse an administrative judge’s discovery related rulings. Kingsley
v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016); Defense Intelligence Agency v.
Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015). Additionally, an appellant is
not entitled to discovery in an IRA appeal if she fails to raise a nonfrivolous allegation
of Board jurisdiction. See Sobczak v. Environmental Protection Agency , 64 M.S.P.R.
118, 122 (1994) (stating that an appellant is entitled to discovery in an IRA appeal only
when he sets forth nonfrivolous jurisdictional allegations). Further, there is a
presumption of honesty and integrity on the part of administrative judges that can only
be overcome by a substantial showing of personal bias, and the Board will not infer bias
based on an administrative judge’s case-related rulings; a party’s disagreement with an
administrative judge’s evidentiary rulings is insufficient to show bias. Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013); Diggs v. Department of
Housing and Urban Development , 114 M.S.P.R. 464, ¶ 9 (2010). Although we have
now concluded that the appellant nonfrivolously alleged Board jurisdiction over her
IRA appeal, we still find that the appellant’s conclusory assertion of bias, unsupported
by any objective evidence, is insufficient to meet this high standard.24 | Nelson_Renee_DC-1221-21-0486-W-1__Remand_Order.pdf | 2024-03-20 | RENEE NELSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-21-0486-W-1, March 20, 2024 | DC-1221-21-0486-W-1 | NP |
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