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2,000 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Renee_DC-1221-22-0024-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE NELSON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-22-0024-W-1
DATE: March 20, 2024
THIS FINAL 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
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge erred by
failing to consider her three pending Board appeals together and in concluding
that the Board lacks jurisdiction over her appeal, and that the administrative judge
abused his discretion in his rulings and was biased against her. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
Regarding the appellant’s argument that the administrative judge erred in
concluding that the Board lacks jurisdiction over her appeal, on review she
challenges the finding that the only personnel action she alleged in connection
with her appeal was her claim that she was subjected to a background
investigation. Petition for Review (PFR) File, Tab 1 at 1-2. To that end, the
appellant appears to take issue with the administrative judge’s finding that she
did not identify the background investigation as an act of reprisal based on her
earlier protected disclosures and activities that were the subject of her prior IRA
appeals. PFR File, Tab 1 at 1; Initial Appeal File (IAF), Tab 12, Initial Decision
(ID) at 4-5 & n.4. The appellant argues that she specifically alleged that the
agency initiated the background investigation in retaliation for her filing of the
second IRA appeal and for her prior OSC complaints, and she cites to evidence in
the record to this effect. PFR File, Tab 1 at 1-2, IAF, Tab 1 at 1.
The appellant appears to misconstrue the crux of the administrative judge’s
finding on this point. In finding that the appellant did not identify the2
background investigation as an “act of reprisal,” the administrative judge was
merely clarifying that the appellant had not alleged that the background
investigation was one act taken by the agency in a series of acts that collectively
constituted a claim of “continuing reprisal,” and instead the administrative judge
only considered the appellant’s claim that she was subjected to a retaliatory
background investigation as a single, discrete act. ID at 4-5 & n.4; see Hamley v.
Department of the Interior , 122 M.S.P.R. 290, ¶ 7 (2015) (observing, in the
Title VII context, that hostile work environment claims are different from discrete
acts of discrimination or retaliation because, by their nature, they involve
repeated conduct, a single incident of which may not be actionable on its own).
This finding, which concerns only the nature of the appellant’s alleged
personnel action, is distinct from a finding addressing whether this alleged
personnel action was taken in reprisal for the appellant’s prior protected activity
of filing OSC complaints and Board appeals, which appears to be the basis of the
appellant’s objection on review. PFR File, Tab 1 at 1. Because the
administrative judge concluded that the appellant failed to nonfrivolously allege
that she was subjected to a personnel action in connection with the background
investigation, he did not reach the question of whether the agency initiated the
background investigation in retaliation for her prior protected disclosures or
activities. ID at 4-6.
We agree with the administrative judge’s finding in this regard and see no
reason to disturb it on review. The basis for the appellant’s retaliatory
investigation claim is that, on or about April 14 and 27, 2021, she was notified by
agency personnel that she was required to undergo a security clearance
background investigation so that the agency could process and renew a required
form for the appellant to maintain access to its systems. IAF, Tab 1 at 11. The
appellant alleged that the agency initiated this background investigation request
in retaliation for her protected disclosures concerning the agency’s collection of
employee COVID-19 vaccination status data. Id. at 11, 18-20. 3
As the administrative judge correctly concluded, the U.S. Court of Appeals
for the Federal Circuit has held that, in the context of an IRA appeal, while
retaliatory investigations are not personnel actions in and of themselves, they may
contribute toward the creation of a hostile work environment that can rise to the
level of “a significant change in working conditions” and constitute a personnel
action. Sistek v. Department of Veterans Affairs , 955 F.3d 948, 955 (Fed. Cir.
2020); see Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16
(2022) (clarifying 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).
Additionally, after the issuance of the initial decision in this case, the Board
issued the decision in Spivey v. Department of Justice , 2022 MSPB 24, ¶ 10
(2022), which further clarified that the Board will consider evidence of the
conduct of an allegedly retaliatory investigation when the investigation is so
closely related to a covered personnel action that it could have been a pretext for
gathering evidence to use to retaliate against an employee for whistleblowing.
Here, the administrative judge correctly determined that the appellant has
not alleged that the security clearance investigation was closely related to a
personnel action such that it could have been pretext for gathering evidence to
retaliate, nor did she allege that she was the subject of an investigation such that
disciplinary action could result. ID at 4-6; see Spivey, 2022 MSPB 24, ¶ 10.
Specifically, the investigation did not concern alleged wrongdoing, and instead
was a routine requirement to process and renew the appellant’s access to the
agency’s systems. IAF, Tab 1 at 11, 44, 49-50. Moreover, the Board has held
that the denial, revocation, or suspension of a security clearance is not a
personnel action under the Whistleblower Protection Act of 1989 (WPA), and the
Board therefore lacks jurisdiction over such claims in IRA appeals. DiGiorgio v.
Department of the Navy , 84 M.S.P.R. 6, ¶¶ 4-5 (1999) (finding the Board lacks
IRA jurisdiction to consider any claims relating to the appellant’s security4
clearance, including claims that the appellant was being subjected to a security
clearance investigation in retaliation for whistleblowing disclosures). Such
jurisdiction is lacking even if an appellant alleges that the security clearance
investigation was part of a “significant change in duties, responsibilities, or
working conditions.” Roach v. Department of the Army , 82 M.S.P.R. 464,
¶¶ 53-54 (1999) (quoting what is now 5 U.S.C. § 2302(a)(2)(A)(xii)).
Accordingly, we agree with the administrative judge that the appellant has failed
to nonfrivolously allege that her security clearance background investigation was
a personnel action, and consequently, the appellant failed to meet her
jurisdictional burden.
Finally, we also 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 failed to sanction the agency despite its “shoddy
defense,” failed to require the agency to satisfy its burden, and issued a stay on
discovery before issuing his jurisdictional determination. PFR File, Tab 1 at 5-6,
10, 30. There is a presumption of honesty and integrity on the part of
administrative judges that can only be overcome by a substantial showing of
personal bias, and the Board will not infer bias based on an administrative judge’s
case-related rulings. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605,
¶ 18 (2013). Nor is a party’s disagreement with an administrative judge’s
evidentiary rulings sufficient to show bias. Diggs v. Department of Housing and
Urban Development , 114 M.S.P.R. 464, ¶ 9 (2010). Moreover, because we agree
with the administrative judge’s finding that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction over her appeal, she was not entitled
to engage in discovery in her IRA appeal. 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 she sets forth nonfrivolous
jurisdictional allegations). Consequently, we find that the appellant’s arguments
regarding the processing of her appeal and thoroughness with which the5
administrative judge handled her claims, fail to overcome the presumption of
honesty and integrity.
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 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.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.10 | Nelson_Renee_DC-1221-22-0024-W-1__Final_Order.pdf | 2024-03-20 | RENEE NELSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-22-0024-W-1, March 20, 2024 | DC-1221-22-0024-W-1 | NP |
2,001 | https://www.mspb.gov/decisions/nonprecedential/Perez_Michelle_DA-0752-22-0143-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE PEREZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-22-0143-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Sebastyn , Schertz, Texas, for the appellant.
Steve Henry , Garden Ridge, Texas, for the appellant.
Safiya Porter , San Antonio, 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 agency’s chapter 75 removal action based on the charges of failure
to follow instructions and conduct unbecoming a supervisor. On petition for
review, the appellant appears to reargue that the agency violated the law by
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
removing her instead of demoting her, and she claims that the administrative
judge erred in finding that she did not prove her defense of laches, in the handling
of witnesses, and in finding that the penalty of removal was reasonable under the
circumstances. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 6 | Perez_Michelle_DA-0752-22-0143-I-1__Final_Order.pdf | 2024-03-20 | MICHELLE PEREZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-22-0143-I-1, March 20, 2024 | DA-0752-22-0143-I-1 | NP |
2,002 | https://www.mspb.gov/decisions/nonprecedential/Pittman_Leah_C_AT-0752-17-0393-I-3 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEAH C. PITTMAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0393-I-3
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Kimberly Kaye Ward , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’s rulings during either the course of the appeal or the
initial decision were not consistent with required procedures or involved an abuse
of discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a GS-13 Pharmacist at an agency medical
center in Charleston, South Carolina. Pittman v. Department of Veterans Affairs ,
MSPB Docket No. AT -0752-17-0393-I-1, Initial Appeal File (IAF), Tab 1 at 4,
Tab 4 at 14. On November 4, 2016, the agency proposed her removal based on
the following charges: (1) delay in patient care (4 specifications); (2) failure to
timely respond to phone calls and/or other contacts (2 specifications);
and (3) failure to timely perform duties (4 specifications). IAF, Tab 4 at 63-66.
By letter dated March 3, 2017, the deciding official sustained the charges and
found that removal was an appropriate penalty. Id. at 31-35.
The appellant filed this appeal of her removal with the Board. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision affirming
the removal action.2 Pittman v. Department of Veterans Affairs , MSPB Docket
No. AT-0752-17-0393-I-3, Appeal File (I-3 AF), Tab 15, Initial Decision (ID).
She found that the agency proved all three charges. ID at 4, 6, 8. The
2 The administrative judge had previously dismissed the appeal twice without prejudice
to refiling. IAF, Tab 28, Initial Decision; Pittman v. Department of Veterans Affairs ,
MSPB Docket No. AT -0752-17-0393-I-2, Appeal File (I-2 AF), Tab 22, Initial
Decision.
3
administrative judge also found that the appellant did not prove her affirmative
defenses of disability discrimination or violation of her due process rights.3 ID
at 9, 14. The administrative judge further determined that the agency did not hold
the appellant to a higher performance standard than the standard that would have
been required under chapter 43. ID at 9-10. Finally, the administrative judge
found that the agency’s action promoted the efficiency of the service and that
removal was a reasonable penalty. ID at 14-16.
The appellant timely filed a petition for review, in which she challenges the
administrative judge’s findings that the agency proved its charges and that the
agency-imposed penalty was reasonable. Petition for Review (PFR) File, Tab 1
at 19-23. She also argues that the agency used chapter 75 to circumvent her
chapter 43 performance standards. Id. at 13. In addition, she reasserts her
affirmative defense of disability discrimination based on a failure to
accommodate. Id. at 5-7, 14-19. The agency has responded to the appellant’s
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved its charges by
preponderant evidence.
On review, the appellant asserts that she was not solely to blame for the
incidents underlying the agency’s charges. PFR File, Tab 1 at 8-9, 19-20.
Specifically, she reasserts her argument that the malfunction of new telephone
equipment, poor organization within the department, and the outsourcing of the
processing of prescriptions were circumstances beyond her control which led to
the delays in performing her duties. Id. at 19-20; I-3 AF, Tab 12 at 18-19.
She does not link these assertions to the individual charges or specifications but
3 The appellant does not challenge the administrative judge’s finding that she did not
prove a due process violation. Because the appellant does not raise this issue on
review, and because we discern no basis for disturbing the administrative judge’s
determination that the agency did not violate the appellant’s due process rights, we do
not further address this affirmative defense.
4
generally argues that the agency failed to meet its burden because it could not
prove she was specifically at fault. PFR File, Tab 1 at 20. We are not persuaded.
The Board must give deference to an administrative judge’s credibility
determinations when they are based explicitly or implicitly on the observations of
witnesses testifying at hearing and may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly
resolved the credibility determinations in accordance with the factors set forth in
Hillen.4 She identified the factual questions in dispute, summarized the agency’s
charges, and then analyzed the evidence that the parties offered with respect to
the charges. ID at 2-8. For each charge, as discussed below, the administrative
judge stated that she believed the testimony of the agency’s witnesses over that of
the appellant, and explained why she found the appellant’s testimony less
credible. Id.
Regarding the first charge, delay of patient care, the agency alleged that, on
four occasions, the appellant delayed faxing chemotherapy prescriptions to the
Specialty Pharmacy for dispensing which, in turn, caused patients to experience
delays. IAF, Tab 4 at 63-64. For the first specification, the administrative judge
found that the appellant testified that the delay in faxing the prescription was an
oversight on her part and, based on the appellant’s testimony, sustained the
specification. ID at 2. Regarding the second specification, the administrative
judge observed that, while the appellant admitted that her fax transmission of the
prescription was delayed, she attributed the delay to trouble with her fax machine.
4 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she 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) her character; (3) any prior inconsistent
statement by the witness; (4) her bias, or lack of bias; (5) the contradiction of her
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of her version of events; and (7) her demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987).
5
ID at 3. The administrative judge did not credit the appellant’s testimony and
instead credited the testimony of the appellant’s supervisor, who testified that the
appellant had access to three other fax machines in the pharmacy that could have
been used to timely fax the prescription. Id. In sustaining the third specification,
the administrative judge noted that the appellant did not deny that she delayed
transmitting the prescription. Id. While the administrative judge did not sustain
the fourth specification, she found that the three specifications she did sustain
were sufficient to sustain the delay of patient care charge. ID at 4. Given the
administrative judge’s explicit demeanor-based findings, we find that the
appellant has failed to provide a sufficiently sound reason to disturb the
administrative judge’s findings that the agency proved its first charge.
See Haebe, 288 F.3d at 1301.
As for the second charge, failure to timely respond to phone calls and/or
other contacts, the agency alleged that the appellant failed to respond to
voicemails from a patient regarding the status of his chemotherapy medication
refill and failed to respond to the Specialty Pharmacy regarding information
needed for a faxed prescription. IAF, Tab 4 at 64. The appellant alleges on
review that other factors may have interceded, such as malfunctions of newly
installed telephone equipment. PFR File, Tab 1 at 19-20. In sustaining this
charge, the administrative judge considered the appellant’s testimony that she did
not know that she had received any voicemails and that she purposefully had not
set up her voice mailbox to avoid being overwhelmed with voicemails, but did not
find the appellant’s testimony persuasive. ID at 5-6. The administrative judge
did not find it reasonable for the appellant to have assumed, without confirming,
that she had no voicemails, especially in light of the fact that she communicated
with other pharmacies via telephone. ID at 6. Thus, the administrative judge
considered the appellant’s argument regarding the telephone system below and we
find that the appellant has failed to provide a sufficiently sound reason to disturb
6
the administrative judge’s credibility determinations on review. See Haebe,
288 F.3d at 1301.
For the third charge, failure to timely perform duties, the agency alleged
that, on four occasions, the appellant failed to take actions that were needed to
ensure medications were filled or refilled. IAF, Tab 4 at 64-65. On review, the
appellant states that there was poor organization within her department, which
may have led to her inability to timely perform her duties. PFR File, Tab 1
at 19-20. As to specification one, the administrative judge found that the
appellant did not specifically deny that she delayed verifying a patient’s
information and that she neither offered testimony to refute the agency’s evidence
nor denied that it was her responsibility to verify such information. ID at 6.
The administrative judge further found that the appellant admitted, both in her
written reply and in her testimony, that specifications two, three, and four under
this charge were due to oversights on her part. ID at 7-8. We have considered
the appellant’s arguments on review concerning the administrative judge’s
weighing of the evidence for this charge, but we discern no reason to reweigh the
evidence or substitute our assessment of the record evidence for that of the
administrative judge. 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); see also Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same). Thus, the administrative judge
properly found that the agency proved its charges and sustained the removal
action.
The administrative judge correctly found that the agency did not hold the
appellant to a higher performance standard than that which would have been
required under chapter 43.
On review, the appellant reasserts her argument that the agency used
chapter 75 to circumvent her chapter 43 performance standards. PFR File, Tab 1
7
at 13; I-3 AF, Tab 12 at 8-13. Thus, she argues that the agency’s measurement of
her performance was not accurate and reasonable. PFR File, Tab 1 at 7-14.
We are not persuaded.
It is well settled that it is within the agency’s discretion to take action
against an appellant under chapter 75, governing adverse actions, rather than
under chapter 43, governing performance-based actions. See Lovshin v.
Department of the Navy , 767 F.2d 826, 842-43 (Fed. Cir. 1985) (en banc).
However, if the subject of an agency’s charge is covered by a performance
standard of the appellant’s position, the agency may not impose a different
standard in taking the chapter 75 action. McGillivray v. Federal Emergency
Management Agency , 58 M.S.P.R. 398, 402 (1993). The administrative judge
correctly considered this appeal as a chapter 75 action, and found that the agency
was not circumventing chapter 43 by charging the appellant under chapter 75.5
ID at 9-10. She found that, because the charge of delay in patient care was
covered by a performance standard, the agency could not hold the appellant to a
higher standard by taking a chapter 75 action. Id. The administrative judge
further found that the agency did not hold the appellant to a higher performance
standard than would have been required under chapter 43. Id. The appellant’s
assertions on review fail to provide a basis for disturbing the administrative
judge’s findings. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359.
The administrative judge properly found that the appellant failed to establish her
affirmative defense of disability discrimination based on a failure to
accommodate.
On review, the appellant reasserts her claim that the agency initially
granted her request to have an office with a window with natural light in October
2014, but that the accommodation was subsequently revoked. PFR File, Tab 1
at 5-7, 14-17; I-3 AF, Tab 12 at 5-6, 13-16. She also reasserts her argument that
5 The agency’s Standard Form 50 affecting the appellant’s removal states that the action
taken was a removal pursuant to chapter 75. IAF, Tab 4 at 14.
8
the agency failed to restructure her position or to conduct a job search for a
position suitable for reassignment. PFR File Tab 1 at 17-19; I-3 AF, Tab 12
at 16-18. We find these arguments without merit.6
It is the appellant’s burden to prove her claim of disability discrimination
by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). An agency must
provide a reasonable accommodation to a qualified individual with an actual
disability or a record of a disability. Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 34 (2014). In order to establish a disability -based failure to
accommodate claim, an appellant must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed
to provide a reasonable accommodation. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.2( o)(4).
Here, the administrative judge found that the appellant was an individual
with a disability who was granted a series of reasonable accommodations for her
sleep apnea and narcolepsy in 2014 and 2015. ID at 11. Neither party disputes
these findings on review. The administrative judge found, however, that the
appellant failed to establish that she was a qualified individual with a disability.
ID at 14. We agree.
To demonstrate that she is a qualified individual with a disability, the
appellant must show that she could perform the essential functions of her
position, with or without an accommodation, or that she could perform in a vacant
funded position to which she could have been assigned. See Clemens v.
Department of the Army , 120 M.S.P.R. 616, ¶ 11 (2014). The administrative
6 The appellant also alleges that the administrative judge did not allow her to raise
disability discrimination as an affirmative defense. PFR File, Tab 1 at 5. However, the
record reflects that the administrative judge listed disability discrimination based on a
failure to accommodate in the summary of the telephonic prehearing conference, to
which the appellant did not object. I-2 AF, Tab 6 at 3-5. Furthermore, as set forth
above, the administrative judge made findings on this issue. ID at 12-14. Thus, this
argument is without merit.
9
judge found that the appellant was not a qualified individual with a disability
because the appellant failed to demonstrate that she could perform the essential
functions of her position with or without a reasonable accommodation. ID at 14.
Specifically, the administrative judge found that the agency granted the appellant
every accommodation she requested, yet the appellant still had performance
deficiencies and was not able to perform some of the essential functions of her
position. Id. The administrative judge also found that the appellant did not
introduce any evidence that she requested that her position be restructured or
offer any evidence on how her position could have been restructured. ID at 10.
Furthermore, while the appellant argues that she made multiple efforts to be
reassigned to a different position, she did not offer any evidence in support of
such an assertion and, as the administrative judge observed, the record does not
reflect any position the appellant could have performed not involving patient
care. ID at 16; s ee Clemens, 120 M.S.P.R. 616, ¶ 17 (finding that the appellant
bears the ultimate burden of proving that there was a position the agency would
have found and could have assigned to her). Thus, we agree with the
administrative judge that the appellant failed to demonstrate that she was a
qualified individual with a disability.7 ID at 14.
7 Additionally, even if we found that the appellant was a qualified individual with a
disability, we would affirm the administrative judge’s finding that the agency did not
fail to provide the appellant’s requested reasonable accommodations. ID at 14.
As observed by the administrative judge, the record reflects that the appellant was
provided the reasonable accommodations she requested. ID at 11; IAF, Tab 4 at 70-82.
On review, the appellant does not dispute that that these reasonable accommodations
were provided. PFR File, Tab 1 at 6-7. While she argues that her reasonable
accommodation of having an office with a window with natural light was subsequently
revoked when she was placed on a detail from her permanent position, id. at 5-7, 14-17,
the administrative judge found that the appellant testified that she had access to a
window with natural light while she was on detail, ID at 13. Thus, although the
appellant did not have a private office with a window, she still had access to, and was
allowed to work at, a workspace which included her needed accommodation.
See Miller, 121 M.S.P.R. 189, ¶ 21 (finding that the appellant was not entitled to the
accommodation of her choice and that the agency acted within its discretion to offer her
reasonable and effective accommodations).
10
The administrative judge correctly found that the agency met the nexus
requirement and that the penalty of removal was reasonable.
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 her duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of Army ,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The
administrative judge found that there was a nexus between the appellant’s
misconduct and the efficiency of the service. ID at 14-15.
The appellant alleges on review that her removal does not promote the
efficiency of the service due to her past satisfactory work performance and length
of service. PFR File, Tab 1 at 20-21. There is a sufficient nexus between an
employee’s conduct and the efficiency of the service when the conduct occurred
at work. Scheffler, 117 M.S.P.R. 499, ¶ 10. Here, the sustained misconduct
directly pertained to the appellant’s work for the agency. IAF, Tab 4 at 63-66.
Under the circumstances, the appellant has not shown that the administrative
judge erred in finding that nexus was established. Further, her arguments
regarding her past work performance and length of service were properly
considered as mitigating factors in the penalty analysis, as discussed below.
On review, the appellant alleges that the deciding official failed to consider
mitigating factors, including the impact of the appellant’s medical condition and
the agency’s failure to provide reasonable accommodations, her 10 years of
service with the agency, her past satisfactory work performance, her lack of prior
discipline, her potential for rehabilitation, and the agency’s failure to consider a
lesser punishment than removal. PFR File, Tab 1 at 21-23. When, as here, all the
agency’s charges have been sustained, the Board will review an agency-imposed
penalty only to determine if the agency considered all of the relevant Douglas
factors and exercised management discretion within tolerable limits of
11
reasonableness.8 Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 25
(2014). In determining whether the selected penalty is reasonable, the Board
gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Id. The Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.
As the administrative judge found, the deciding official considered
aggravating factors, including the seriousness of the conduct and its impact on
patients, the deciding official’s loss of confidence in the appellant’s ability to
carry out her duties, the appellant’s failure to accept responsibility and/or express
remorse for her conduct, and the effect her actions had on the reputation of the
patient care among the veterans the medical center serves, in reaching his
decision that removal was the proper penalty. ID at 15-16; I-3 AF, Tab 6,
Hearing Recording (HR) (testimony of the deciding official); IAF, Tab 4
at 36-38. Further, the deciding official specifically took into consideration
relevant mitigating factors, such as the appellant’s length of service with the
agency, her lack of prior discipline, her past performance record, and the
appellant’s medical condition and reasonable accommodations, but determined
that these mitigating factors did not overcome the gravity of the charged
misconduct. ID at 15-16; HR (testimony of the deciding official); IAF, Tab 4
at 36-38. The deciding official also considered whether to impose an alternative
sanction but determined that an alternative penalty was not appropriate because
the serious nature of the appellant’s conduct rendered management unable to trust
her to maintain quality care for patients. HR (testimony of the deciding official);
IAF, Tab 4 at 38.
8 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.
12
In light of the above, we agree with the administrative judge that the
deciding official correctly weighed the relevant Douglas factors, and that the
penalty of removal was reasonable. See L’Bert v. Department of Veterans Affairs ,
88 M.S.P.R. 513, ¶¶ 17-23 (2001) (finding removal to be an appropriate penalty
where the appellant failed to carry out her “preregistration” responsibilities by
not making patient contact, endangering their safety); Tobochnik v. Veterans
Administration, 9 M.S.P.R. 82, 83-85 (1981) (finding that the penalty of removal
did not exceed the bounds of reasonableness when the serious nature of the
employee’s misconduct could reasonably be expected to adversely affect cancer
patients).
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.
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.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
14
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
15
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
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.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Pittman_Leah_C_AT-0752-17-0393-I-3 Final Order.pdf | 2024-03-20 | LEAH C. PITTMAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0393-I-3, March 20, 2024 | AT-0752-17-0393-I-3 | NP |
2,003 | https://www.mspb.gov/decisions/nonprecedential/Guerrier_Armelle_M_NY-0843-17-0194-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARMELLE M. GUERRIER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0843-17-0194-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Armelle M. Guerrier , Brooklyn, New York, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for payment of a lump sum death benefit. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed a Board appeal of OPM’s reconsideration decision
denying her application for payment of a lump sum death benefit based on the
Federal service of a former annuitant. Initial Appeal File (IAF), Tab 1, Tab 8
at 6-8. On November 16, 2017, the administrative judge issued an initial decision
affirming OPM’s reconsideration decision. IAF, Tab 16, Initial Decision (ID).
The initial decision stated it would become final on December 21, 2017, unless a
petition for review was filed by that date. ID at 4.
The appellant filed an initial appeal document with the Board’s
Northeastern Regional Office on February 10, 2018. Petition for Review (PFR)
File, Tabs 1, 3. Thereafter, the Office of the Clerk of the Board contacted the
appellant to clarify the intent of her filing. PFR File, Tab 3 at 1. Following the
telephone call, the Board docketed the February 10, 2018 pleading as a petition
for review and advised the appellant that it was untimely filed. Id. at 2. The
appellant has not provided a response to the Board’s acknowledgement letter, and
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 after the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the day of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). The appellant bears the burden of proof regarding timeliness,
which she must establish by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(ii).
Here, the record reflects that the initial decision was sent by electronic mail
to the appellant on November 16, 2017—the date it was issued. IAF, Tab 17 at 1;
IAF, Tab 3 at 2; see 5 C.F.R. § 1201.14(e)(1) (2018) (stating that registration as
an e-filer constitutes consent to accept electronic service of pleadings filed by
other registered e-filers and documents issued by the Board). Thus, the petition2
for review had to be filed within 35 days after the date of issuance of the initial
decision, or by December 21, 2017. See 5 C.F.R. § 1201.114(e). However, the
appellant filed a petition for review on February 10, 2018, almost 2 months past
the filing deadline. PFR File, Tab 1.
The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 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). 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 misfortunate that 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 an acknowledgement letter, the Office of the Clerk of the Board
informed the appellant that her petition for review was untimely filed and that she
could file a motion with the Board to accept her filing as timely or to waive the
time limit for good cause. PFR File, Tab 3. The letter also provided the
appellant a blank copy of the form motion for her to complete in order to satisfy
the requirement and stated that the motion must be sent by April 27, 2018. Id.
at 2. The appellant, however, failed to respond to the Office of the Clerk’s notice
regarding timeliness and did not otherwise attempt to explain the delay in filing
her petition for review.2 The appellant’s arguments regarding the merits of her
case do not establish good cause for a late filing. See Guevara v. Department of
2 Although the appellant is acting pro se on review, the filing delay is significant. See
Alvarado v. Defense Commissary Agency , 88 M.S.P.R. 46, ¶¶ 4-5 (2001) (finding that a
filing delay of almost 2 months was significant). 3
the Navy, 112 M.S.P.R. 39, ¶ 7 (2009). In light of the foregoing, we find that the
appellant has set forth no grounds for finding good cause for a waiver of the
filing deadline. See Wright v. Department of the Treasury , 113 M.S.P.R. 124,
¶¶ 7-8 (2010) (dismissing the petition for review as untimely filed with no good
cause shown when the petition for review was silent as to the reason for the delay
and the appellant provided no explanation for the late filing in response to the
Clerk’s notice); Mitchell v. Broadcasting Board of Governors , 107 M.S.P.R. 8,
¶ 8 (2007) (dismissing the petition for review as untimely filed without good
cause shown when the appellant filed her petition for review 2 months late and
did not respond to the Clerk’s notice to establish good cause for the delay).
Accordingly, we dismiss the petition for review as untimely filed without
good cause shown. This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding 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
filing 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.
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 | Guerrier_Armelle_M_NY-0843-17-0194-I-1__Final_Order.pdf | 2024-03-20 | ARMELLE M. GUERRIER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0843-17-0194-I-1, March 20, 2024 | NY-0843-17-0194-I-1 | NP |
2,004 | https://www.mspb.gov/decisions/nonprecedential/Hendrickson_Kevin_S_DC-3330-22-0559-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN S. HENDRICKSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-3330-22-0559-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
evin S. Hendrickson , APO, APO/FPO Europe, pro se.
Major Claimant , Washington, D.C., for the agency.
Sara Thompson , FPO, APO/FPO Europe, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts that the agency violated his
opportunity to compete for a vacancy under 5 U.S.C. § 3304(f)(1) by failing
initially to recognize his preference as a 30% or more disabled veteran, and, upon
correcting this error, failing to consider his experience in determining him
ineligible for the vacancy based on the specialized experience requirement.
Petition for Review (PFR) File, Tab 1 at 4-5.
As the administrative judge correctly explained, when an agency fills a
vacancy via the merit promotion process, the only advantage a preference-eligible
veteran enjoys is the opportunity to compete, i.e., the ability to apply and be
considered for the position. Initial Appeal File (IAF), Tab 15, Initial Decision
(ID) at 4; see 5 U.S.C. § 3304(f)(1); Miller v. Federal Deposit Insurance
Corporation, 818 F.3d 1357, 1359-60 (Fed. Cir. 2016); Montgomery v.
Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 11 (2016)
(finding that the right to compete under 5 U.S.C. § 3304(f) includes the agency’s
consideration of the veteran’s application). However, the opportunity-to-compete
provision set forth in 5 U.S.C. § 3304(f) does not apply to veterans, like the
appellant, already employed in the Federal civil service who are seeking merit2
promotions. Kerner v. Department of the Interior , 778 F.3d 1336, 1338-39 (Fed.
Cir. 2015); Oram v. Department of the Navy , 2022 MSPB 30, ¶¶ 15-17. Thus, the
appellant is not entitled to recovery on his claim that he was denied an
opportunity to compete under 5 U.S.C. § 3304(f) based on a violation of 5 U.S.C.
§ 33112 or any other veterans’ preference statute or regulation. ID at 4-5; see
Kerner, 778 F.3d at 1338-39.
The appellant submits evidence for the first time on review of his referrals
by the agency for two other vacancies for similar positions to the position at
issue. PFR File, Tab 1 at 12-13. He argues that these referrals demonstrate his
eligibility for the position at issue and, consequently, prove that the agency
violated the VEOA in finding him ineligible. PFR File, Tab 1 at 5. This new
evidence is not material because the appellant, as a current Federal employee, is
not entitled to recovery on an alleged VEOA violation in connection with a merit
promotion vacancy as a matter of law. Kerner, 778 F.3d at 1338-39; see Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, we affirm the initial decision.
NOTICE OF APPEAL 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 Although not explicitly invoked by the appellant, 5 U.S.C. § 3311(2) states that a
preference eligible is entitled to credit for “all experience material to the position for
which examined,” which is the essence of his argument. PFR File, Tab 1 at 4-5.
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Hendrickson_Kevin_S_DC-3330-22-0559-I-1_Final_Order.pdf | 2024-03-20 | KEVIN S. HENDRICKSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-3330-22-0559-I-1, March 20, 2024 | DC-3330-22-0559-I-1 | NP |
2,005 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-3330-18-0514-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-3330-18-0514-I-1 Final Order.pdf | 2024-03-20 | null | null | NP |
2,006 | https://www.mspb.gov/decisions/nonprecedential/Kani-Goba_Gibao_E_DC-0752-22-0397-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GIBAO EMMANUEL KANI-GOBA,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-22-0397-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
ibao Emmanuel Kani-Goba , Gaithersburg, Maryland, pro se.
LerVal M. Elva , Esquire, and Susan M. Andorfer , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal without prejudice. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
However, we FORWARD the case to the Washington Regional Office for
docketing as a refiled appeal.
On October 13, 2022, the administrative judge dismissed this appeal
without prejudice to refiling. Initial Appeal File, Tab 64, Initial Decision. The
initial decision notified the appellant that he may refile his appeal no later than
36 days from the issuance date of the initial decision. On November 12, 2022,
the appellant filed a petition for review with the Board requesting that the Board
“reverse the [administrative judge’s] decision to dismiss [his] appeal without
prejudice.” Petition for Review (PFR) File, Tab 1. Thereafter, the appellant filed
a pleading titled “Withdrawal of Appeal” in which he, among other things, again
challenged the administrative judge’s decision to dismiss the appeal without
prejudice. PFR File, Tab 4. The Office of the Clerk of the Board subsequently
ordered the appellant to clarify whether he wished to withdraw his petition for
review. PFR File, Tab 5. The appellant did not respond.
An administrative judge has wide discretion to dismiss an appeal without
prejudice in the interests of fairness, due process, and administrative efficiency,
and may order such a dismissal at the request of one or both parties or to avoid a
lengthy or indefinite continuance. Thomas v. Department of the Treasury , 115
M.S.P.R. 224, ¶ 7 (2010). We find that the appellant's assertions on review fail
to demonstrate that the administrative judge abused that considerable discretion.
Nonetheless, because the appellant is challenging the administrative judge’s
decision to dismiss his appeal, and because the time to refile this appeal
following its dismissal without prejudice has passed, we forward this appeal to
the Washington Regional Office for refiling in accordance with the administrative
judge's instructions.
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Kani-Goba_Gibao_E_DC-0752-22-0397-I-1_Final_Order.pdf | 2024-03-20 | null | DC-0752-22-0397-I-1 | NP |
2,007 | https://www.mspb.gov/decisions/nonprecedential/Blain_ArthurSF-0752-22-0243-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTHUR BLAIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-22-0243-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arthur Blain , Poway, California, pro se.
David L. Mannix , Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant renews his argument below that he only resigned to
protect his retirement after he was told by an agency official that he was a
probationary employee and could be terminated at any time. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Blain_ArthurSF-0752-22-0243-I-1 Final Order.pdf | 2024-03-20 | ARTHUR BLAIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-22-0243-I-1, March 20, 2024 | SF-0752-22-0243-I-1 | NP |
2,008 | https://www.mspb.gov/decisions/nonprecedential/Benitez_Karina_SF-0752-22-0192-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARINA BENITEZ,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-22-0192-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karina Benitez , San Bernardino, California, pro se.
Richard I. Anstruther , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her chapter 75 removal. On petition for review, the appellant argues that
her absence without leave was attributable to an undisclosed illness. Generally,
we grant petitions such as 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. Except as expressly MODIFIED to correct harmless error in the
reasonable accommodation analysis, we AFFIRM the initial decision.
The administrative judge found that the appellant is not an individual with
a disability, and thus, not entitled to reasonable accommodation. Initial Appeal
File (IAF), Tab 28, Initial Decision (ID) at 26. Alternatively, he found that she
never requested reasonable accommodation, and so could not establish a
disability discrimination claim based on a denial of reasonable accommodation.
Id. The administrative judge erred in this analysis. Therefore, we modify the
initial decision to apply the correct standard.
The appellant met her burden to establish that she was disabled. An
individual may prove that she has a disability by showing, as relevant here, that
she suffers from “a physical or mental impairment that substantially limits one or
more major life activities.” 42 U.S.C. § 12102(1)(A); 29 C.F.R. § 1630.2(g)(1)
(A). An impairment is considered a disability if it substantially limits an
individual’s ability “to perform a major life activity as compared to most people
in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities
include, but are not limited to, caring for oneself, concentrating, communicating,
and working. 29 C.F.R. § 1630.2(i)(1)(i).
While we agree with the administrative judge’s suggestion that the
appellant failed to submit helpful proof of her disability, the record reflects that2
the appellant represented to the agency that she had anxiety and panic attacks for
which she took “strong medication” that affected her memory and her ability to
work consistently. ID at 26; IAF, Tab 4 at 196-97. In response to the proposed
removal, she reported that she had “a very serious illness and [had] been under a
doctor’s care several times a week that also required hospitalization.” IAF, Tab 4
at 40. And, there is a November 2020 letter from the appellant’s psychiatrist
corroborating that he had “been treating [the appellant] for a serious medical
illness” and she would not be able to work for 3 months. Id. at 145. The facts in
the record here are sufficient to find that the appellant was disabled within the
liberal definition of the term. See McNab v. Department of the Army ,
121 M.S.P.R. 661, ¶ 7 (2014) (explaining that the Americans with Disabilities Act
Amendments Act of 2008 liberalized the definition of disability by, for example,
expanding major life activities to “the operation of a major bodily function,”
including brain function) (citing 42 U.S.C. § 12102(2)(B)). Thus, we find that
the appellant met the definition of an individual with a disability and modify the
initial decision to reflect this finding.
However, the administrative judge also concluded that the appellant never
requested a reasonable accommodation. ID at 26. The Rehabilitation Act
requires an agency generally to provide “reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A); Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 10 (2014). A disability discrimination claim will fail if the
employee never requested accommodation while employed. Id., ¶ 12. An
employee only has a general responsibility to inform her employer that she needs
accommodation for a medical condition. Id. Once she has done so, the employer
must engage in the interactive process to determine an appropriate
accommodation. Id.
A November 2020 letter from the appellant’s psychiatrist informed the
agency that he had “been treating [the appellant] for a serious medical illness”3
and she would not be able to work until February 13, 2021. IAF, Tab 4 at 145.
The appellant testified that she was granted leave under the Family and Medical
Leave Act of 1993 (FMLA) to use during this period. IAF, Tab 26, Hearing
Recording (HR), Track 8 (testimony of the appellant). Thus, to the extent the
psychiatrist’s letter requested accommodation in the form of leave, the agency
granted that request.
The appellant did not argue, and has not presented any evidence
suggesting, that she requested an accommodation after she exhausted her FMLA
leave in February 2021. The appellant’s first-level supervisor gave undisputed
testimony that the appellant had not requested leave without pay for leave after
February 2021. HR, Track 3 (testimony of the first-level supervisor). As a
result, the appellant entered an absence without leave (AWOL) status after she
exhausted her FMLA leave. E.g., IAF, Tab 4 at 83, 87, 92 (recording the
appellant as AWOL for dates in April and May 2021). Her first -level supervisor
further testified that the appellant did not reply to his emails or answer his phone
calls during this period and that he could not leave a message because her
voicemail was full. HR, Track 3 (testimony of the first -level supervisor).
In May 2021, the appellant’s supervisor sent a letter to the appellant
expressing his “concerns about [her] work availability” because she had not
reported to work nor contacted him for nearly 1 month, save a single email in
which, in its entirety, she wrote “I have a doctor appt [sic] today. S/L.” IAF,
Tab 4 at 131-32, 139. The supervisor explained that the appellant exhausted her
FMLA leave. Id. at 131. He informed the appellant about the Employee
Assistance Program, Occupational Health Services, and that she could apply for
disability retirement, and he invited her to discuss any questions or concerns with
him. Id.
There is no evidence that the appellant pursued any of these options or even
responded to her supervisor’s letter. Nothing in the record suggests that the
appellant’s supervisor should have assumed that the appellant’s leave after4
February 2021 was related to the medical condition referenced by her doctor in
November 2020. Therefore, the appellant failed to prove that she specifically
requested an accommodation or more generally provided information suggesting
that she needed one. As a result, she did not meet her burden to prove her claim
that she was denied reasonable accommodation. See Clemens, 120 M.S.P.R. 616,
¶ 12.
Therefore, we affirm the initial decision as modified above.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Benitez_Karina_SF-0752-22-0192-I-1__Final_Order.pdf | 2024-03-20 | KARINA BENITEZ v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-22-0192-I-1, March 20, 2024 | SF-0752-22-0192-I-1 | NP |
2,009 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Robert_M_DA-0752-23-0008-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. COLEMAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-23-0008-X-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Michael Tita and Roderick Eves , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s January 5, 2023 Order in Coleman v. United States
Postal Service , MSPB Docket No. DA-0752-23-0008-I-1, in which the
administrative judge accepted the parties’ settlement agreement into the record
for enforcement purposes. Coleman v. United States Postal Service , MSPB
Docket No. DA-0752-23-0008-I-1, Initial Appeal File (IAF), Tab 23, 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 (ID). On November 8, 2023, the administrative judge issued a
compliance initial decision finding the agency not in compliance with the Board’s
January 5, 2023 Order. Coleman v. United States Postal Service , MSPB Docket
No. DA-0752-23-0008-C-1, Compliance File (CF), Tab 9, Compliance Initial
Decision (CID). For the reasons discussed below, we find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2On October 11, 2022, the appellant appealed his removal by the United
States Postal Service (agency) from the position of Supervisor, Customer Service.
IAF, Tab 1. On January 5, 2023, the administrative judge, pursuant to a
settlement agreement between the parties, issued an initial decision which
dismissed the appeal as settled and accepted the settlement agreement into the
record for enforcement purposes. ID at 1-2. The settlement agreement called for,
inter alia, expunging the appellant’s removal documentation from his electronic
official personnel file (eOPF) and substituting a Notification of Personnel Action,
SF-50, showing he voluntarily resigned, effective January 31, 2023. CID at 3-4.
The initial decision became the final decision of the Board on February 9, 2023,
when neither party petitioned for administrative review. ID at 3.
¶3On May 11, 2023, the appellant filed a petition for enforcement of the
settlement agreement, alleging that his “PS Form 50 [Notification of Personnel
Action]” in his eOPF had codes on it indicating that his departure from the agency
was due to a resignation in lieu of removal. CF, Tab 1 at 1-2. In its response to
the appellant’s petition, the agency stated it had removed the appellant’s Notice
of Proposed Removal and Letter of Decision from his eOPF, as required by the
settlement agreement. CF, Tab 3 at 4-7. The agency further stated that the codes
in the appellant’s PS Form 50 did not signify a voluntary resignation, as alleged
by the appellant, but instead only indicated his last day in pay status. Id. The
agency did admit, however, that, due to the appellant’s attempts to apply for new2
jobs with the agency, it added new documentation to his eOPF reflecting the prior
misconduct that led to his removal, to ensure that other officials in the agency
were aware that he was not suitable to be rehired. Id. at 5. The agency argued
that inclusion of the new report in his eOPF was not prohibited by his settlement
agreement. Id.
¶4On July 18, 2023, the administrative judge held a telephonic status
conference with the parties. CF, Tab 6. During the call, the administrative judge
informed the appellant that, should she find noncompliance with the settlement
agreement by the agency, the appellant would be allowed to elect either
enforcement of the agreement or rescission of the agreement and reinstatement of
his original appeal. Id. at 2. The appellant stated during the call that, should
noncompliance be found, he would request enforcement of the agreement. Id.
¶5On November 8, 2023, the administrative judge found the agency not in
compliance due to its inclusion of the additional materials in the appellant’s
eOPF. CID at 4-7. The administrative judge found that, while the agency was in
compliance with respect to the appellant’s PS Form 50, the appellant and the
agency had agreed to a “clean record” settlement agreement, and the agency’s
inclusion of the new report reflecting his removal violated that agreement. Id.
Neither party filed any submission with the Clerk of the Board within the time
limit set forth in 5 C.F.R. § 1201.114. Accordingly, pursuant to 5 C.F.R.
§ 1201.183(b)-(c), the administrative judge’s findings of noncompliance became
final, and the appellant’s petition for enforcement was referred to the Board for a
final decision on issues of compliance. Coleman v. United States Postal Service ,
MSPB Docket No. DA-0752-23-0008-X-1, Compliance Referral File (CRF),
Tab 2.
¶6On January 1, 2024, the appellant argued to the Board that the agency’s
noncompliance prevented him from being able to apply for new jobs with the
agency. CRF, Tab 3 at 4. The appellant requested that the Board order the3
agency to reinstate him to employment and pay him back pay to remedy the
noncompliance. Id.
¶7On January 19, 2024, the agency submitted a pleading in which the agency
representative declared under penalty of perjury that the agency’s additional
report reflecting the appellant’s removal had been removed from the appellant’s
eOPF. CRF, Tab 4 at 4.
ANALYSIS
¶8The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. Vance v. Department of the Interior ,
114 M.S.P.R. 679, ¶ 6 (2010). A settlement agreement is a contract, and the
Board will therefore adjudicate a petition to enforce a settlement agreement in
accordance with contract law. Allen v. Department of Veterans Affairs ,
112 M.S.P.R. 659, ¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). Where,
as here, an appellant alleges noncompliance with a settlement agreement, the
agency must produce relevant, material, and credible evidence of its compliance
with the agreement. Vance, 114 M.S.P.R. 679, ¶ 6.
¶9The agency’s outstanding compliance obligation was to remove the “NACI
report” reflecting the appellant’s removal from the appellant’s eOPF. On
January 19, 2024, the agency submitted a pleading that declared under penalty of
perjury that it had expunged the additional “NACI report” from the appellant’s
eOPF. CRF, Tab 4 at 4. The appellant did not file any response to the agency’s
January 19, 2024 submission. Therefore, based on the agency’s submission, we
find that the agency is now in full compliance with the Board’s January 5,
2023 Order.
¶10Finally, addressing the appellant’s request for reinstatement and back pay
due to the agency’s noncompliance, the Board has no authority to grant the
requested remedy. Wonderly v. Department of the Navy , 68 M.S.P.R. 529, 5324
(1995). Where an appellant establishes that an agency is in breach of a settlement
agreement, he is entitled only to enforcement of the agreement or rescission of the
agreement and reinstatement of his claim on appeal. Id. When presented with
this choice by the administrative judge, the appellant elected enforcement of the
agreement, and the Board has accordingly enforced it by requiring the agency to
meet its obligations. CF, Tab 6 at 2.
¶11Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and DISMISSES the petition for enforcement.
This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set 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).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Coleman_Robert_M_DA-0752-23-0008-X-1__Final_Order.pdf | 2024-03-20 | ROBERT M. COLEMAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-23-0008-X-1, March 20, 2024 | DA-0752-23-0008-X-1 | NP |
2,010 | https://www.mspb.gov/decisions/nonprecedential/Carr_Barbara_CH-3443-18-0142-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA CARR,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-3443-18-0142-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arthur D. Cox , Vine Grove, Kentucky, for the appellant.
C. Mike Moulton , Esquire, Elizabethtown, Kentucky, for the appellant.
Glenn Houston Parrish , Esquire, Fort Knox, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of a reduction-in-force (RIF) action for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. For the reasons set forth below, we
VACATE the administrative judge’s findings on the merits of the appeal, and we
AFFIRM the initial decision as MODIFIED to clarify the administrative judge’s
jurisdictional analysis. Except as expressly indicated in this Final Order, the
initial decision of the administrative judge is the Board’s final decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction over the
appellant’s appeal of a RIF action.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). An appellant generally is entitled to a jurisdictional
hearing if she makes a nonfrivolous allegation2 of Board jurisdiction over the
appeal. Edwards v. Department of the Air Force , 120 M.S.P.R. 307, ¶ 6 (2013).
RIF actions are not appealable to the Board under 5 U.S.C. chapter 75. Smith v.
Department of the Air Force , 117 M.S.P.R. 488, ¶ 5 (2012); see 5 U.S.C.
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
§ 7512(B). However, an employee who has been furloughed for more than
30 days, separated, or demoted by a RIF action may appeal to the Board under
5 C.F.R. § 351.901. Thus, to establish the Board’s jurisdiction over a RIF appeal,
an appellant must show that she was furloughed for more than 30 days, separated,
or demoted by the RIF action. Adams v. Department of Defense , 96 M.S.P.R.
325, ¶ 9.
Here, the appellant has not alleged, and the record does not suggest, that
she was furloughed for more than 30 days or was separated by a RIF action.
Instead, the record reflects that she accepted a reassignment from the position of
Physician (Emergency Medicine), GP-0602-14, to the position of Physician
(Family Practice), GP-0602-14, as part of a RIF. Initial Appeal File (IAF),
Tab 12 at 28, 30-31. Therefore, the relevant jurisdictional issue here is whether
the appellant was demoted by a RIF action. See Myers v. Department of the
Army, 87 M.S.P.R. 77, ¶ 5 (2000) (observing that an employee reassigned during
a RIF can only appeal to the Board if the reassignment was a RIF demotion). For
purposes of 5 C.F.R. § 351.901, “demotion” means a change of an employee,
while serving continuously within the same agency: (i) to a lower grade when
both the old and the new positions are under the General Schedule or under the
same type graded wage schedule; or (ii) to a position with a lower rate of pay
when both the old and the new positions are under the same type ungraded wage
schedule, or are in different pay method categories. 5 C.F.R. § 210.102(b)(4); see
Smith, 117 M.S.P.R. 488, ¶ 5.
Here, in determining whether the appellant satisfied either prong of the
definition of “demotion,” the administrative judge found that the appellant did not
suffer an appealable RIF demotion because she was not reassigned to a lower
grade and she was not assigned to a position with a lower rate of pay. IAF,
Tab 20, Initial Decision (ID) at 4. Although we agree with the administrative
judge’s ultimate finding that the appellant did not suffer an appealable RIF3
demotion, we modify the initial decision to clarify the administrative judge’s
jurisdictional analysis, as follows.
Although the position descriptions for the appellant’s current and former
Physician positions use the pay plan code “GP,” both positions are part of the
General Schedule pay system. IAF, Tab 12 at 8, 13, 17, 25-26; see Fact Sheet:
Pay Plans, U.S. Office of Personnel Management, https://www.opm.gov/policy-
data-oversight/pay-leave/pay-administration/fact-sheets/pay-plans/ (last visited
Mar. 20, 2024); see also Bosco v. Department of the Treasury , 6 M.S.P.R. 471,
474 (1981) (finding that OPM makes the final determination of whether a given
position or type of position should be included in the General Schedule).
Therefore, the relevant definition of “demotion” is the one set forth at 5 C.F.R.
§ 210.102(b)(4)(i). It is undisputed that the appellant’s old and new positions are
at the same grade level. Therefore, we find that the appellant has failed to make a
nonfrivolous allegation that she suffered an appealable RIF demotion. See
Buckheit v. U.S. Postal Service , 107 M.S.P.R. 52, ¶ 11 (2007) (finding that the
Board lacks jurisdiction over the appellant’s reassignment from one PS-5 position
to another under 5 C.F.R. part 351). Moreover, we find that whether the
appellant suffered a reduction in pay or a change in pay rate is immaterial to the
dispositive jurisdictional issue. See McDonald v. Department of Veterans Affairs ,
86 M.S.P.R. 539, ¶ 13 (2000) (finding that, because the appellant occupied a
“graded” position before and after his reassignment, the fact that he was receiving
“a lower rate of pay” under 5 C.F.R. § 210.102(b)(4)(ii), was irrelevant to the
determination of whether an appealable RIF action was effected); Glennon v.
Department of Veterans Affairs , 86 M.S.P.R. 340, ¶ 11 (2000) (finding that,
although the appellant’s pay would be reduced as a result of a reassignment from
one graded position to another, she did not suffer an appealable RIF demotion
because she was not reduced in grade).
In her petition for review, the appellant reasserts her argument that she is
not qualified for the Physician (Family Practice) position to which she was4
reassigned as a result of a RIF. Petition for Review (PFR) File, Tab 1 at 4-11;
IAF, Tab 1 at 6. In particular, she argues that the agency violated the RIF
procedures set forth at 5 C.F.R. part 351, the qualification standards of the Office
of Personnel Management for Physician positions, and the agency’s own
regulation, “AR 40-68 8-7 b.(2)j(1)(d),” and its policy. PFR File, Tab 1 at 6-11;
IAF, Tab 12 at 25-27. We find that the appellant’s arguments on the merits of the
appeal are immaterial to the dispositive jurisdictional issue. Although the
appellant cites Ratkus v. General Services Administration , 12 M.S.P.R. 464,
465-66 (1982), for the proposition that an agency’s determination as to the
qualifications for a position is subject to review by the Board under 5 C.F.R.
part 351, we find that Ratkus is distinguishable from the instant appeal because
the appellant in Ratkus was subjected to an appealable RIF action (i.e., a
separation) under 5 C.F.R. § 351.901. PFR File, Tab 1 at 9.
Further, the appellant challenges on review the administrative judge’s
findings that the agency did not waive an education requirement, the agency
waived any requirement of Board certification in Family Practice, and the agency
complied with the RIF procedures under 5 C.F.R. part 351. PFR File, Tab 1 at 6,
8-9; ID at 3-4 & n.1. Because we find that the appellant has failed to make a
nonfrivolous allegation of an appealable RIF action under 5 C.F.R. § 351.901, we
vacate those findings on the merits of the agency’s action. See Rosell v.
Department of Defense , 100 M.S.P.R. 594, ¶ 5 (2005) (explaining that the
existence of Board jurisdiction is the threshold issue in adjudicating an appeal),
aff’d, 191 F. App’x 954 (Fed. Cir. 2006); see also Adams, 96 M.S.P.R. 325, ¶ 12
& n.* (declining to reach the issue of an inconsistency in OPM’s RIF regulations
when the Board lacked jurisdiction over the appellants’ RIF reassignments that
did not result in appealable RIF actions); cf. Sobol v. U.S. Postal Service ,
68 M.S.P.R. 611, 614 (1995) (vacating the addendum initial decision concerning
a motion for attorney fees because the Board lacked jurisdiction over the merits
of the underlying appeal of a RIF reassignment).5
Accordingly, we affirm the dismissal of the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Carr_Barbara_CH-3443-18-0142-I-1__Final_Order.pdf | 2024-03-20 | BARBARA CARR v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-3443-18-0142-I-1, March 20, 2024 | CH-3443-18-0142-I-1 | NP |
2,011 | https://www.mspb.gov/decisions/nonprecedential/Colter_LaShondaPH-0752-16-0049-I-3 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LASHONDA COLTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-16-0049-I-3
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Juan J. Laureda , Esquire, Philadelphia, Pennsylvania, for the appellant.
Roderick D. Eves , 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
found that she failed to prove her affirmative defenses of sex and disability
discrimination and equal employment opportunity (EEO) retaliation. Generally,
we grant petitions such as 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 supplement the
administrative judge’s analysis of the appellant’s discrimination and retaliation
claims, we AFFIRM the initial decision.
The appellant filed an appeal of her removal for alleged misconduct. It is
undisputed that, while the appeal was pending, the agency completely rescinded
the removal action, retroactively returned the appellant to duty, and paid her back
pay, such that the only remaining issues on appeal were the appellant’s
affirmative defenses of sex and disability discrimination and EEO retaliation.
After a hearing, the administrative judge issued an initial decision, finding that
the appellant did not prove the agency discriminated against her based on her sex
or disability or retaliated against her for engaging in protected EEO activity in
removing her. Colter v. U.S. Postal Service , MSPB Docket No. PH-0752-16-
0049-I-3, Appeal File (I-3 AF), Tab 21, Initial Decision (I -3 ID) at 26-30.
The appellant failed to prove her sex discrimination claim.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudicating sex discrimination claims under Title VII. Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-25. Under Pridgen, the
appellant bears the initial burden of proving by preponderant evidence that her
sex was a motivating factor in her removal. Pridgen, 2022 MSPB 31, ¶ 21.
3
The administrative judge found unpersuasive the appellant’s argument that
the agency treated certain male employees differently on the basis of sex because
she failed to show that the purported comparators were similarly situated to her.
ID at 30. We discern no error in this finding. We also discern no error in the
administrative judge’s finding that the agency assigned the appellant more duties
than certain male employees because she was the head supervisor and they were
only acting supervisors. ID at 21-22.
The appellant argues that her former first-line supervisor, although not the
proposing or deciding official in the removal action, initiated the investigation
that led to her eventual removal, and that he harbored animus against her on the
basis of sex, as evidenced by his remarks about her maternity leave.2 See Aquino
v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 19 (2014) (citing Staub
v. Proctor Hospital , 562 U.S. 411, 416-17, 422 (2011) (addressing when an
employer may be liable for the influence of individuals with discriminatory
animus over an individual without such animus in the context of the Uniformed
Service Employment and Reemployment Rights Act)). However, the
administrative judge correctly found that these remarks were insufficient when
considered in conjunction with other evidence of record, including the
nondiscriminatory reasons for which the agency took the removal action. We
therefore agree with the administrative judge’s finding that the appellant failed to
show that her sex was a motivating factor in the removal action.
The appellant failed to prove her disability discrimination claim.
The threshold issue in a disability discrimination claim under the
Rehabilitation Act is whether the appellant is a disabled individual. An appellant
may prove she has a disability by showing that she (1) has “a physical or mental
impairment that substantially limits one or more major life activities”; (2) has “a
2 Under 42 U.S.C. § 2000e(k), sex discrimination includes discrimination “because of or
on the basis of pregnancy, childbirth, or related medical conditions.” See Thome v.
Department of Homeland Security , 122 M.S.P.R. 315, ¶ 26 (2015).
4
record of such an impairment”; or (3) is “regarded as having such an
impairment.” 42 U.S.C. § 12102(1); Pridgen, 2022 MSPB 31, ¶ 37; 29 C.F.R.
§ 1630.2(g). The administrative judge correctly found that the appellant failed to
prove that the relevant managers regarded her as disabled. ID at 30. However,
the record establishes that the appellant had a history of an impairment that
substantially limited a major life activity, and we find, therefore, that the
appellant proved that she is an individual with a disability within the meaning of
the Rehabilitation Act.
To prevail in a disability discrimination claim, however, the appellant must
also show that she is a qualified individual with a disability. Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶¶ 28-29. A qualified individual with a
disability is one who can “perform the essential functions of the . . . position that
such individual holds or desires” with or without reasonable accommodation. Id.,
¶ 28 (citing 42 U.S.C. § 12111(8)). We find that the appellant was not a qualified
individual with a disability. The appellant has not alleged that she was able to
perform the essential duties of her position. Rather, from October 2014, until her
September 2015 removal, she requested and received medical leave and Office of
Workers’ Compensation Programs (OWCP) benefits because she was “totally
disabled,” a limited-duty assignment with significant medical restrictions, then
additional medical leave and OWCP benefits based on a worsening or recurrence
of her disability. I-3 AF, Tab 9 at 104-08, 115, 122-23, 169-70, 374-80, 576-78.
Similarly, although the agency questioned the severity of the appellant’s injuries,
it did not attempt to return her to full duty, with or without a reasonable
accommodation. Instead, the agency attempted to accommodate the appellant by
offering a 4-hour part-time, limited-duty assignment. Id. at 342. Thus, there is
no indication that either the appellant or the agency believed that she was
medically able to perform the essential duties of her position with or without a
reasonable accommodation. Accordingly, because the appellant was not a
5
qualified disabled individual, she failed to prove her disability discrimination
affirmative defense. See Haas, 2022 MSPB 36, ¶¶ 29-30.
The appellant failed to prove her EEO retaliation claim.
The Board has also clarified the analytical framework for addressing claims
of EEO retaliation since the initial decision was issued. Claims of retaliation for
opposing discrimination in violation of Title VII are analyzed under the same
framework used for Title VII discrimination claims, as set forth above. Desjardin
v. U.S. Postal Service , 2023 MSPB 6, ¶ 32. It is undisputed that the appellant
engaged in protected EEO activity, but we are unpersuaded by the appellant’s
arguments on review that certain statements she made to her supervisors about
EEO-related matters outside the EEO process were additional instances of
protected EEO activity. Moreover, the administrative judge credited the deciding
official’s testimony in finding that she based her removal decision on the
evidence before her, and not on animus for the appellant’s EEO activity. I-3 ID
at 28-29. The Board must give deference to an agency’s demeanor-based
credibility findings. Faucher v. Department of the Air Force , 96 M.S.P.R. 203,
¶ 8 (2004). It may overturn those findings for sufficiently sound reasons, such as
if they are incomplete, inconsistent with the weight of the evidence, or do not
reflect the record as a whole. Id. We find that the appellant has not made this
showing. We further find that the administrative judge properly considered the
evidence as a whole and discern no basis for altering his determination that the
appellant did not prove by preponderant evidence that her protected EEO activity
was a motivating factor in the agency’s decision to remove her.3
The appellant’s remaining arguments do not state a basis to grant review.
On review, the appellant reiterates her argument that the agency committed
harmful error in effecting her removal. Petition for Review (PFR) File, Tab 3
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination and retaliation claims, 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.
6
at 3, 10-13, 16. To the extent that the agency failed to follow its procedures in
implementing her removal, this issue is not properly before us. Once the agency
fully rescinded the removal action, any harmful error issues were rendered moot.
See Hejka v. U.S. Marine Corps , 9 M.S.P.R. 137, 140 (1981) (explaining that, if
an agency fails to prove its charge, the harmful error issue is moot).
Finally, the appellant argues that the administrative judge was biased. PFR
File, Tab 3 at 30. An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” 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)). The
appellant’s claims, which do not relate to any extrajudicial conduct by the
administrative judge, neither overcome that presumption, nor establish a
deep-seated favoritism or antagonism. Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980) (holding that, in making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators) .
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.
7
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Colter_LaShondaPH-0752-16-0049-I-3 Final Order.pdf | 2024-03-20 | LASHONDA COLTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-16-0049-I-3, March 20, 2024 | PH-0752-16-0049-I-3 | NP |
2,012 | https://www.mspb.gov/decisions/nonprecedential/Geers_Michael_S_AT-0752-17-0456-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL STEPHEN GEERS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-17-0456-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Emily Pasternak , Esquire, and Jennifer J. Veloz , Esquire, Miami, Florida,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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 correct legal standard to the agency’s charge, we AFFIRM the initial
decision.
The following facts, as detailed in the record and initial decision, are not
materially disputed. The appellant held the position of Customs and Border
Protection Officer (CBPO). Initial Appeal File (IAF), Tab 33, Initial Decision
(ID) at 1. In April 2017, he participated in weapons training where he reportedly
pointed his loaded weapon in the direction of colleagues. ID at 3. Thereafter, he
reportedly loaded his weapon prematurely, and then responded to criticism about
the same with snide comments, failing to recognize the seriousness of his actions.
Id.
The agency ordered the appellant to undergo a fitness-for-duty
examination, followed by a psychiatric independent medical exam (IME). ID
at 4. After the psychiatric IME, during which the appellant denied the alleged
weapons safety violations, the IME psychiatrist found that he did not present with
any psychiatric condition. IAF, Tab 9 at 11-22. He, therefore, deemed the
appellant fit for duty, without restriction. Id. at 21-22. But, in the months that
followed, agency officials provided the IME psychiatrist with documentation of
the weapons safety incident and other concerns expressed by the appellant’s
colleagues, which prompted the IME psychiatrist to recommend additional
psychological and neurocognitive testing. IAF, Tab 10 at 30-31. 2
The neuropsychologist that conducted the aforementioned testing diagnosed
the appellant with a cognitive disorder, not otherwise specified. IAF, Tab 8
at 101-11. Among other things, he found that relevant documentation and test
results suggested that the appellant had “problem solving deficits that would
interfere with his ability to analyze information,” a memory that “appears to be
compromised,” and “significant difficulties in appropriately interacting with
[others] because of anger issues and other personality traits.” Id. at 105. The
neuropsychologist indicated that the appellant likely suffered from an organic
brain disease that impaired his decision making and judgment. Id. at 106. In
conclusion, he indicated that the appellant could not carry a government-issued
weapon or use proper judgment in law enforcement situations. Id. at 109-10.
The appellant then sought out an exam with a psychologist of his choosing.
IAF, Tab 10 at 51-58. The appellant’s psychologist diagnosed him with an
unspecified neurocognitive disorder, and generally concluded that the appellant’s
work performance may be “hindered at times by impulsivity.” Id. at 57. He
separately described the appellant as potentially fit for duty, but did so with a
caveat. Id. at 58. Specifically, the appellant’s psychologist indicated that the
appellant had brain abnormalities that could be explained by either a degenerative
disease or by injuries the appellant recounted from his childhood. Id. If the latter
were the cause of those brain abnormalities, the psychologist suggested that the
appellant remained fit for duty because current deficits were pre-existing and
life-long, such that his ability to perform as a CBPO is essentially unchanged. Id.
Presented with these additional findings, the IME psychiatrist that had
previously deemed the appellant fit for duty amended his conclusions. IAF,
Tab 8 at 119-23. He determined that the appellant had a cognitive disorder2 and
could not safely, efficiently, and reliably perform all the duties of his position.
Id. at 120-21. In particular, the IME psychiatrist concurred with the
2 According to the IME psychiatrist, the differing diagnoses of cognitive disorder and
neurocognitive disorder simply reflect a change in terminology between the two most
recent Diagnostic and Statistical Manuals. IAF, Tab 8 at 120.3
neuropsychologist’s conclusion that the appellant could not carry a
government-issued weapon or use proper judgment in law enforcement situations.
Id.
Over the following months, the agency offered the appellant the option of
retiring, resigning, or requesting reassignment to a position for which he was
qualified. IAF, Tab 10 at 60-62, 71. Because the appellant failed to choose any
of those options, the agency proposed his removal for medical inability to
perform the essential duties of his position. Id. at 77-80. Among other things,
the proposal noted that the CBPO position required that he carry a firearm and
rapidly react to potential threats or physical attacks, i.e., law enforcement
situations. Id. at 78. Following that September 2016 proposal and the appellant’s
responses, the deciding official sustained the removal, effective April 2017. IAF,
Tab 8 at 51-56. This timely appeal followed. IAF, Tab 1.
After holding the requested hearing, the administrative judge sustained the
appellant’s removal. ID at 1. Specifically, he found that the agency met its
burden of proving the charge, while the appellant failed to prove his claim of
harmful procedural error. ID at 2-11. The appellant has filed a petition for
review, in which his sole argument is that the agency failed to prove its charge.
Petition for Review (PFR) File, Tab 3. He presents no argument regarding the
penalty or the affirmative defense he raised below. Id. The agency has filed a
response. PFR File, Tab 5.
Below, the administrative judge and the parties agreed that the applicable
standard for assessing the propriety of the appellant’s removal was found at
5 C.F.R. § 339.206. That regulation generally prohibits removal of an employee
based solely on their medical history, while providing a limited exception for
employees in positions that are subject to medical standards if certain elements
are present. 5 C.F.R. § 339.206; see Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 11 (discussing the elements required for the exception provided
in section 339.206). The agency relied on section 339.206 in analyzing the4
charge, IAF, Tab 8 at 12-13, as did the appellant, IAF, Tab 20 at 7-8, Tab 32
at 10, and the administrative judge, IAF, Tab 28 at 4; ID at 2.
Though not raised by either party on review, we find section 339.206
inapplicable. See 5 C.F.R. § 1201.115(e) (providing that, although the Board
normally will consider only issues raised by the parties on review, it reserves the
authority to consider any issue in an appeal before it). As further detailed below,
section 339.206 does not apply to this appeal because the agency did not remove
the appellant based solely on his medical history; rather, it removed the appellant
based on a current medical condition that rendered him unable to perform.
Our recent decision in Haas guides our analysis in this case, as it involves
a similar fact pattern and a similar misapplication of 5 C.F.R. § 339.206. Like
the appellant in the instant appeal, the employee in Haas was a CBPO, removed
for medical inability to perform the essential functions of his position, stemming
from an existing mental health condition. Haas, 2022 M.S.P.R. 36, ¶¶ 2-8. On
review, we affirmed the removal. But in doing so, we revisited the Board’s
precedent concerning a medical inability to perform charge where the employee
occupied a position that was subject to medical standards, e.g., the position of
CBPO. Overruling a number of cases, including one the administrative judge
relied on in the instant appeal, Haas recognized that 5 C.F.R. § 339.206 should
not be universally applied. Id., ¶¶ 11-16. Rather, section 339.206 only applies to
removals that are “solely on the basis of medical history.” Id., ¶¶ 11-12.
Regardless of whether a position is subject to medical standards, if an
agency removes an employee for inability to perform because of a current
medical condition or impairment, the agency must prove either a nexus between
the employee’s medical condition and observed deficiencies in his performance or
conduct, or a high probability, given the nature of the work involved, that his
condition may result in injury to himself or others. Id., ¶¶ 15, 20. The Board has
otherwise described the standard as requiring that the agency establish that the5
appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶¶ 15, 20.
Although the administrative judge rendered the initial decision in this
appeal before we issued Haas and, consequently, misapplied 5 C.F.R. § 339.206,
remand is unnecessary because the record is fully developed on the relevant
issues. ID at 2; Haas, 2022 MSPB 36, ¶ 20. As previously discussed, each of the
clinicians that evaluated the appellant diagnosed him with an existing mental
health condition, with existing limitations. . Most notably, two of those
clinicians specifically indicated that the appellant cannot carry a government-
issued weapon or use proper judgment in law enforcement situations, both of
which are required for his CBPO position. Compare IAF, Tab 8 at 109-10, 121-
22 (medical opinions regarding the appellant’s limitations), and Hearing
Transcript (HT) at 32-33, 80 (same), with IAF, Tab 10 at 82-90 (CBPO position
description), and Haas, 2022 MSPB 36, ¶¶ 22-23 (discussing the essential
functions of a CBPO). The third clinician broadly described the appellant as
having limitations such as impulsivity, without specifically addressing his job
requirements. IAF, Tab 10 at 57-58. Under these circumstances, where there is
no persuasive evidence to the contrary, we find that the agency met its burden of
proving that the appellant’s medical condition prevents him from being able to
safely and efficiently perform the core duties of his position. See, e.g., Haas,
2022 MSPB 36, ¶¶ 20-26 (sustaining the removal of a CBPO for inability to
perform the essential functions of his position where his bipolar disorder rendered
him unable to carry a firearm and exercise proper judgment in law enforcement
situations).
The appellant’s posture throughout this appeal has not been to challenge
the veracity of clinicians’ diagnoses or general opinions about his condition.
Instead, his primary argument has been that their medical findings and other
evidence of record does not reflect the “significant risk of substantial harm”
element of 5 C.F.R. § 339.206. E.g., PFR File, Tab 3 at 5. In doing so, he goes6
to great lengths discussing how high that standard is, and how the agency failed
to meet that standard in this case, given the uncertainty in predicting dangerous
behavior, as described by those who evaluated the appellant, as well as his history
of successful and non-violent performance. Id. at 7-21. But again, we find that
section 339.206 is inapplicable because the agency removed the appellant for
inability to perform based on his current medical condition and limitations. See
Haas, 2022 MSPB 36, ¶ 16 (recognizing that the determination of whether section
339.206 applies may well be outcome determinative in some cases involving
removal for inability to perform).
Even construing his arguments more broadly, and applying the appropriate
standard, the appellant’s contentions remain unavailing. The appellant’s basic
assertion is that he has performed well in the past, and clinicians’ concern for his
ability to continue doing so is too speculative. We disagree. See Haas,
2022 MSPB 36, ¶ 19 (rejecting arguments that past successful performance
outweighed current medical impressions). Although the appellant may have
performed successfully in the past, his more recent performance prompted
medical evaluations that revealed a cognitive disorder—one which clinicians
described as preventing the appellant from safely and efficiently carrying a
firearm and appropriately responding to law enforcement situations, i.e.,
performing the core duties of his position. E.g., IAF, Tab 8 at 101-10, 119-21.
The administrative judge found those conclusions persuasive, ID at 7-8, as do we.
The agency has, therefore, met its burden of proving its charge of medical
inability to perform, and removal is an appropriate penalty.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular8
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 9
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of10
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Geers_Michael_S_AT-0752-17-0456-I-1 Final Order.pdf | 2024-03-20 | MICHAEL STEPHEN GEERS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-17-0456-I-1, March 20, 2024 | AT-0752-17-0456-I-1 | NP |
2,013 | https://www.mspb.gov/decisions/nonprecedential/Gibson_Melinda_NY-0752-22-0028-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELINDA GIBSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-0752-22-0028-A-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, and Laura A. O’Reilly , Esquire, Virginia Beach,
Virginia, for the appellant.
John B. Gupton , Esquire, and Felix Lizasuain , Esquire, Kingshill, Virgin
Islands, 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 addendum initial decision,
which granted the appellant’s motions for attorney fees and costs in the amount of
$96,735.00. On petition for review, the agency disagrees with the administrative
judge’s determination that the Board has the authority to order the U.S. Virgin
Islands National Guard (VING)’s Adjutant General to provide relief. Attorney
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Fee Petition for Review (AFPFR) File, Tab 1 at 6-18. 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 and
AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R.
§ 1201.113(b).
¶2On review, the agency maintains that pursuant to the decision of the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board , 244 F.3d 1331 (Fed. Cir. 2001), the Board
cannot grant the appellant relief because it lacks authority over the VING
Adjutant General. AFPFR File, Tab 1 at 10-16; Attorney Fees File (AFF), Tab 4
at 7-10. However, the holding in Singleton that the Board lacks the authority to
issue enforceable orders to remedy improper employment actions taken against
National Guard dual status technicians has been abrogated by Congress’s changes
to 32 U.S.C. § 709, enacted as part of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, § 932, 130 Stat. 2000, 2363-64 (2016).
See Erdel v. Department of the Army , 2023 MSPB 27, ¶¶ 10-16. Moreover,
2 After the record closed on review, the appellant submitted two motions to provide
supplemental authority and supplement her response to the agency’s petition for review.
AFPFR File, Tabs 5, 7. The agency has responded to the first of these motions. AFPFR
File, Tab 6. Due to our findings here, we deny the motions.2
contrary to the agency’s argument, Singleton only applied to dual status National
Guard technicians. The agency concedes that the appellant was a Title 5
employee and not a dual status National Guard technician. AFPFR File, Tab 4
at 5. Thus, even if Singleton had not been abrogated, it would not be controlling
here. See Erdel, 2023 MSPB 27, ¶¶ 11-16. Accordingly, we agree with the
administrative judge’s finding that the Board may order relief in this appeal.
AFF, Tab 6, Addendum Initial Decision (AID) at 6-8.
On review, the parties do not challenge any of the administrative judge’s
findings regarding the fee award factors or the amount of the fees and costs
awarded. AFPFR File, Tabs 1, 3-4. To establish entitlement to an award of
attorney fees under 5 U.S.C. § 7701(g)(1), an appellant must show that (1) she
was the prevailing party; (2) she incurred attorney fees pursuant to an existing
attorney-client relationship; (3) an award of attorney fees is warranted in the
interest of justice; and (4) the amount of attorney fees claimed is reasonable. See
Caros v. Department of Homeland Security , 122 M.S.P.R. 231, ¶ 5 (2015). The
administrative judge found that the appellant established that she was the
prevailing party, that an attorney-client relationship existed, that the award of
attorney fees was warranted in the interest of justice due to the agency’s due
process violations and gross procedural errors, and that both the hourly rate and
hours claimed by the appellant’s attorneys were reasonable. AID at 8-15. The
administrative judge reduced the appellant’s request for costs by $2,045.50 when
she excluded the appellant’s request for deposition and copying expenses. AID
at 14-15. Neither party has disputed any of those findings on review, and we
decline to disturb them .3
3 In the agency’s December 22, 2022 reply to the appellant’s response to the agency’s
petition for review, the agency “requests that the [Board] review the Initial Decision in
[the removal appeal] and reverse the aforesaid Initial Decision and dismiss the
[a]ppellant’s appeal of her removal by the [a]gency.” AFPFR, Tab 4 at 5 n.2. This
request is denied. An attorney fees proceeding is an addendum proceeding in which the
Board does not reconsider the merits of its final decision in the underlying appeal.
Matthews v. Social Security Administration , 104 M.S.P.R. 130, ¶ 8 (2006) (citing
Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454, 1458 (Fed. Cir. 1984)3
ORDER
¶3We ORDER the agency to pay the attorney of record $96,735.00 in fees and
costs. The agency must complete this action no later than 20 days after the date
of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.
§ 1204(a)(2)).
¶4We also ORDER the agency to tell the appellant and the attorneys 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 and
the attorneys to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorneys, 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 or the attorneys
that it has fully carried out the Board’s Order, the appellant or the attorneys may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorneys believe that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorneys believe the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
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
(“the [Board’s] decision on the fee motion is an addendum to the decision on the merits
and not a reconsideration of the evidence in a new light”)). The initial decision
reversing the appellant’s removal was issued on July 11, 2022, and became the final
decision of the Board when neither party petitioned the Board for review. Gibson v.
Department of the Army , MSPB Docket No. NY-0752-22-0028-I-1, Initial Decision
at 1-2, 34; see 5 C.F.R. § 1201.113.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Gibson_Melinda_NY-0752-22-0028-A-1__Final_Order.pdf | 2024-03-20 | MELINDA GIBSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-0752-22-0028-A-1, March 20, 2024 | NY-0752-22-0028-A-1 | NP |
2,014 | https://www.mspb.gov/decisions/nonprecedential/Graham_Ronald_C_AT-315H-18-0244-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD C. GRAHAM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-18-0244-I-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frankie Baker , Tampa, Florida, for the appellant.
Barbara Kehoe , Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Effective July 23, 2017, the agency appointed the appellant to a Nursing
Assistant position in the excepted service subject to the completion of a 1 -year
probationary period. Initial Appeal File (IAF), Tab 5 at 6. The record reflects
that the appellant had prior service that the agency credited towards completion
of his probationary period and that his probationary period was scheduled to end
on February 21, 2018. Id. By notice dated January 8, 2018, the agency informed
the appellant that he would be terminated from his position based on alleged
misconduct effective January 10, 2018. IAF, Tab 1 at 9-11. The appellant
appealed and, attached to his appeal, he submitted a Standard Form 50 (SF-50)
showing that he resigned from his position effective January 10, 2018. Id. at 8.
The administrative judge issued an initial decision that dismissed the appeal for
lack of jurisdiction upon finding that the appellant failed to show that he was an
employee with appeal rights under 5 U.S.C. § 7511(a)(1)(C). IAF, Tab 6, Initial
Decision (ID) at 3-4. The appellant petitions for review of the initial decision
and the agency responds in opposition to the petition for review. Petition for
Review (PFR) File, Tabs 1, 4.
The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. Niemi v. Department of the Interior ,
114 M.S.P.R. 143, ¶ 8 (2010). The administrative judge must provide the2
appellant with explicit information on what is required to establish an appealable
jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641,
643-44 (Fed. Cir. 1985). Here, be cause the appellant is a nonpreference eligible
in an excepted-service appointment, he must satisfy the definition of “employee”
set forth at 5 U.S.C. § 7511(a)(1)(C) to have Board appeal rights. McCrary v.
Department of the Army , 103 M.S.P.R. 266, ¶ 7 (2006).
In her jurisdictional order, the administrative judge provided the appellant
with notice of how a competitive service employee could establish the Board’s
jurisdiction over his appeal. IAF, Tab 3. She did not provide Burgess notice
appropriate to the appellant’s situation. However, the Board has held that the
failure to provide an appellant with proper Burgess notice in an acknowledgement
order or show cause order can be cured if the initial decision itself puts the
appellant on notice of what he must do to establish jurisdiction so as to afford
him the opportunity to meet his jurisdictional burden for the first time on review.
Caracciolo v. Department of the Treasury , 105 M.S.P.R. 663, ¶ 11 (2007),
overruled on other grounds by Brookins v. Department of the Interior ,
2023 MSPB 3. Although the administrative judge’s jurisdictional order did not
contain Burgess notice appropriate to this appeal, the initial decision did contain
this notice. ID at 2-3. Thus, the appellant received actual notice of how he may
establish jurisdiction over his appeal and an opportunity to establish jurisdiction
on review. Under the circumstances, the administrative judge’s failure to provide
proper Burgess notice below did not prejudice the appellant’s substantive rights.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).3
Under 5 U.S.C. § 7511(a)(1)(C), an “employee” is a nonpreference eligible
in the excepted service:
(i) who is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the
same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less[.]
5 U.S.C. § 7511(a)(1)(C); McCrary, 103 M.S.P.R. 266, ¶ 7. According to the
evidence of record, the appellant resigned2 prior to completing his probationary
period and cannot satisfy section 7511(a)(1)(C)(i). IAF, Tab 1 at 8. According to
the service computation date on the SF-50 documenting his resignation, he had
less than 2 years of total Federal service at the time of his separation, and
therefore, he cannot satisfy section 7511(a)(1)(C)(ii). Id.
In his petition for review, the appellant again argues that the agency’s
reasons for terminating him are false. PFR File, Tab 1. He does not address the
issue of jurisdiction. Accordingly, we find that the administrative judge correctly
found that the appellant failed to show that he is an “employee” with appeal
rights to the Board under 5 U.S.C. § 7511(a)(1)(C), and properly dismissed this
appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 Whether the appellant resigned or was terminated, he is required to show that he is an
“employee” under 5 U.S.C. § 7511(a)(1)(C).
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Graham_Ronald_C_AT-315H-18-0244-I-1__Final_Order.pdf | 2024-03-20 | RONALD C. GRAHAM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-18-0244-I-1, March 20, 2024 | AT-315H-18-0244-I-1 | NP |
2,015 | https://www.mspb.gov/decisions/nonprecedential/Barbour_Jacquelin_C_DC-1221-22-0327-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELIN CHARLENE BARBOUR,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-1221-22-0327-W-1
DATE: March 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith Lee , Research Triangle Park, North Carolina, for the appellant.
Constance Kossally and Elise Harris , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that the current case is “only a
continuation” of an earlier Office of Special Counsel (OSC) complaint and Board
appeal, and that her protected activity took place before the issuance of the
June 30, 2021 letter of reprimand (LOR). Petition for Review (PFR) File, Tab 1
at 23. The appellant states that she has been in contact with OSC since a former
supervisor issued her an LOR in 2019, and that she was also in contact with her
union and the agency’s equal employment opportunity (EEO) office prior to
June 30, 2021. Id. at 23. The Board appeal in question appears to be Barbour v.
Department of Health and Human Services , MSPB Docket
No. DC-1221-20-0234-W-1, which the appellant filed on December 16, 2019,
based on a different OSC complaint, MA-19-5257, involving actions taken by
previous supervisors. Barbour v. Department of Health and Human Services ,
MSPB Docket No. DC-1221-20-0234-W-1, Initial Appeal File, Tab 1 at 11. The
appellant subsequently withdrew that Board appeal, and it was dismissed with
prejudice. Barbour v. Department of Health and Human Services , MSPB Docket
No. DC-1221-20-0234-W-3, Initial Decision (July 27, 2021).
While it may be that the appellant engaged in protected activity prior to
June 30, 2021, the Board’s jurisdiction is limited to issues raised before OSC.2
Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶¶ 14, 18 (2004). The
appellant’s correspondence with OSC indicates that her earlier protected activities
were not at issue in complaint MA-21-1820, which is the complaint that gave rise
to the instant IRA appeal. To the contrary, the appellant explicitly informed OSC
that the MA-21-1820 complaint was not based on allegations that her current
supervisor, who issued the June 30, 2021 LOR, was retaliating against her “for
filing previous EEO, OSC, Civil, or AFGE complaints/grievances for 2 previous
supervisors 2 years ago in 2018-2019.” Barbour v. Department of Health and
Human Services , MSPB Docket No. DC-1221-22-0327-W-1, Initial Appeal File,
Tab 5 at 5. Hence, to the extent the appellant may have engaged in protected
activities prior to the LOR issued on June 30, 2021, those activities are outside
the scope of the relevant OSC complaint and cannot serve to establish jurisdiction
over this appeal. See Coufal, 98 M.S.P.R. 31, ¶¶ 17-18 (finding that the Board
lacked jurisdiction to consider whistleblowing and perceived whistleblowing
claims that were not raised in the appellant’s OSC complaint).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Barbour_Jacquelin_C_DC-1221-22-0327-W-1__Final_Order.pdf | 2024-03-20 | JACQUELIN CHARLENE BARBOUR v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-1221-22-0327-W-1, March 20, 2024 | DC-1221-22-0327-W-1 | NP |
2,016 | https://www.mspb.gov/decisions/nonprecedential/Sherrill_RebekahDA-0752-22-0271-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBEKAH SHERRILL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-22-0271-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Johnson , Edmond, Oklahoma, for the appellant.
Theresa M. Gegen , 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 the agency’s removal action based on the sustained charges of
unacceptable conduct and failure to follow instructions. On petition for review,
the appellant reargues her case and the facts underlying the charges; reargues
facts related to her affirmative defenses; conducts her own penalty analysis and
raises claims of harmful error and disparate penalties; and submits additional
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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.2 Except as expressly MODIFIED to
correct the analytical framework applied to the appellant’s Family and Medical
Leave Act of 1993 (FMLA) retaliation claim, we AFFIRM the initial decision.
In the administrative judge’s discussion of the appellant’s claim that the
agency removed her in retaliation for taking FMLA-protected leave, the
administrative judge stated that such retaliation is a prohibited personnel practice
under 5 U.S.C. § 2302(b) and cited Doe v. U.S. Postal Service , 95 M.S.P.R. 493,
¶ 11 (2004), which analyzed a claim of FMLA retaliation as protected activity
2 The appellant’s petition for review contains over 60 pages of documents that, for the
most part, predate the close of the record before the administrative judge or are already
part of the record. Petition for Review (PFR) File, Tab 1 at 29-64. We find that these
documents are not a basis for granting the petition for review. 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. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d). The appellant has not alleged that any of the newly submitted
documents were unavailable to her before the record closed. To the extent that some of
the documents are already in the record, they are not “new” evidence for purposes of
5 C.F.R. § 1201.115. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980). In any event, none of the documents contain information 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(a)(1).2
under 5 U.S.C. § 2302(b)(9), for the proposition that, to establish such a claim,
the appellant must show that: (a) she engaged in protected activity; (b) she was
subsequently treated adversely; (c) the deciding official had actual or constructive
knowledge of the protected activity; and (d) there is a causal connection between
the protected activity and the personnel action. Initial Appeal File (IAF), Tab 23,
Initial Decision (ID) at 12. The administrative judge found the first three criteria
satisfied but found that the appellant failed to establish a causal connection
between her protected FMLA activity and her removal because, among other
things, she failed to show that her supervisor was motivated by retaliatory animus
related to her FMLA activity, the removal closely followed her misconduct, and
the appellant acknowledged the alleged misconduct for the sustained charges. ID
at 12-13. The administrative judge therefore found that the appellant failed to
establish this affirmative defense. ID at 12-13.
However, after the initial decision was issued, the Board expressly
overruled Doe in Marcell v. Department of Veterans Affairs , 2022 MSPB 33,
¶¶ 7-8. In Marcell, the Board found that FMLA leave requests are not protected
activities under 5 U.S.C. § 2302(b)(9), but could form the basis for another
affirmative defense, such as a violation of 5 U.S.C. § 2302(b)(10), which makes it
a prohibited personnel practice to “discriminate for or against any employee or
applicant for employment on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the performance of others.”
Marcell, 2022 MSPB 33, ¶¶ 7-8.
Accordingly, we modify the initial decision to analyze the appellant’s
FMLA retaliation claim under 5 U.S.C. § 2302(b)(10). However, under such an
analysis we also find that the appellant did not establish that she was removed
because of, or “on the basis of,” her use of FMLA-protected leave. We agree
with the administrative judge’s observations on this issue noted above and in the
initial decision, and we find that there is no evidence that the fact that the
appellant took FMLA leave was part of the charges or was considered by the3
deciding official. See ID at 12-13; IAF, Tab 6 at 28-46. Although some of the
appellant’s misconduct at issue here occurred while she was out on FMLA leave,
which she stresses on petition for review, the simple fact of this alone does not
establish that she was removed because of her FMLA leave. See Petition for
Review (PFR) File, Tab 1 at 7. We also find that the appellant’s numerous other
allegations on review of a causal connection between her FMLA leave and her
removal are unavailing, as such assertions were either not raised below or are
conclusory, unsupported by the record, or not relevant to the dispositive issue
here. See PFR File, Tab 1 at 7-8, 23-25; Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980) (holding that the Board will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence). Accordingly, we find that the appellant failed to establish that the
agency violated 5 U.S.C. § 2302(b)(10) by removing her on the basis of her
FMLA leave.
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.4
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Sherrill_RebekahDA-0752-22-0271-I-1 Final Order.pdf | 2024-03-19 | REBEKAH SHERRILL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-22-0271-I-1, March 19, 2024 | DA-0752-22-0271-I-1 | NP |
2,017 | https://www.mspb.gov/decisions/nonprecedential/Lalley_Jeff_M_CH-0845-17-0495-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFF M. LALLEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-17-0495-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff M. Lalley , Cincinnati, Ohio, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging the decision of the Office
of Personnel Management (OPM) finding that he had been overpaid in his
retirement annuity. For the reasons set forth below, we DISMISS the appellant’s
petition for review as untimely filed without good cause shown. 5 C.F.R.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
§ 1201.114(e), (g). Notwithstanding, we FORWARD the case to the Central
Regional Office for docketing and consideration as a new appeal.
BACKGROUND
On July 3, 2017, OPM issued a reconsideration decision affirming an
earlier decision which found that the appellant had been overpaid $4,654 in civil
service annuity benefits and informing him that it intended to collect the
overpayment by deducting monthly installments from his annuity checks. Initial
Appeal File (IAF), Tab 1 at 4-7. The appellant challenged the decision on appeal.
IAF, Tabs 3, 6. During adjudication, OPM rescinded the reconsideration decision
and moved that the appeal be dismissed for lack of jurisdiction stating that, after
the dismissal, it would review the calculation of the appellant’s annuity as there
appeared to be a deficiency which impacted the overpayment, and that the
appellant’s right to appeal would thereby be preserved. IAF, Tab 8. The
administrative judge ordered the appellant to show cause why his appeal should
not be dismissed, IAF, Tab 9, but he did not respond.2
In her September 22, 2017 initial decision, the administrative judge found
that, when OPM completely rescinds the decision on which an appeal to the
Board is based, the appeal is no longer a matter within the Board’s jurisdiction.
Frank v. Office of Personnel Management , 113 M.S.P.R. 164, ¶ 5 (2010); IAF,
Tab 10, Initial Decision (ID) at 2. Finding that, because OPM completely
rescinded its reconsideration decision, the Board no longer retained jurisdiction
over this appeal, the administrative judge granted the agency’s motion to dismiss
it. ID at 1-2. She notified the appellant that the initial decision would become
final on October 19, 2017, unless a petition for review was filed by that date. ID
at 3.
2 According to the administrative judge, she contacted the appellant to review OPM’s
rescission letter with him, after which he decided against availing himself of the
opportunity to offer a written response addressing why his appeal should not be
dismissed. IAF, Tab 10, Initial Decision at 2.2
On March 19, 2018, the appellant filed a petition for review, Petition for
Review (PFR) File, Tab 1, and with it a copy of OPM’s new reconsideration
decision dated February 22, 2018,3 id. at 8-11. The Clerk of the Board notified
the appellant that his petition appeared to be untimely and ordered him to show
cause why it should not be dismissed as untimely filed. PFR File, Tab 2. The
appellant filed a Motion to Accept Filing as Timely and/or Ask the Board to
Waive or Set Aside the Time Limit. PFR File, Tab 3. OPM filed a response.
PFR File, Tab 5.
ANALYSIS
The appellant bears the burden of proof with regard to timeliness, which he
must prove by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the party shows that he received the initial decision more than
5 days after it was issued, within 30 days of his receipt. Williams v. Office of
Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. § 1201.114(e).
The Board will waive the filing time limit for a petition for review only upon a
showing of good cause for the delay. Williams, 109 M.S.P.R. 237, ¶ 7; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
To establish good cause for an untimely filing, a party must show that he
exercised due diligence or ordinary prudence under the circumstances. Williams,
109 M.S.P.R. 237, ¶ 7. To determine whether an appellant has shown good cause,
the Board will consider the length of the delay, the reasonableness of his excuse
and his showing of due diligence, whether he is proceeding pro se, and whether
he has presented evidence of the existence of circumstances beyond his control
that affected his ability to comply with the limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to his ability to timely file
his petition. Id.
3 In the new reconsideration decision, OPM corrected the amount of the appellant’s
overpayment to $4,750.3
In the affidavit the appellant filed in response to the Clerk’s show cause
order, he expressed confusion regarding his filing responsibilities, given the
administrative judge’s show cause order below, the Clerk of the Board’s order,
and the fact that OPM has filed a new reconsideration decision. PFR File, Tab 3
at 1-2. He also claims that he did not receive the initial decision, id. at 2,
although we note that it was mailed to his address of record, as were all
documents issued by the administrative judge and the Clerk of the Board.
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. Marcantel v. Department of Energy , 121 M.S.P.R. 330, ¶ 5 (2014);
5 C.F.R. § 1201.22(b)(3). The initial decision was not returned. Moreover, the
appellant acknowledges receiving the administrative judge’s show cause order
which was mailed 2 days before the initial decision was issued. PFR File, Tab 3
at 1. Despite the appellant’s claim to the contrary, we find that the initial
decision was duly delivered to him, and that it clearly set forth the time limit for
filing a petition for review. Notwithstanding his pro se status, we further find
that the appellant has failed to show good cause for the 5-month delay in filing
his petition for review, and it is dismissed.
However, given OPM’s issuance of a new reconsideration decision from
which the appellant has a right of appeal, and the fact that his purported petition
for review is not only timely filed from that reconsideration decision but also
appears to challenge it on the merits, we find it appropriate to forward this matter
to the Central Regional Office for docketing and consideration as a new appeal
from OPM’s February 22, 2018 reconsideration decision finding that the appellant
has been overpaid in his annuity.
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 the4
Board regarding its dismissal for lack of jurisdiction of the appellant’s appeal
from OPM’s July 3, 2017 reconsideration decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Lalley_Jeff_M_CH-0845-17-0495-I-1 Final Order.pdf | 2024-03-19 | JEFF M. LALLEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-17-0495-I-1, March 19, 2024 | CH-0845-17-0495-I-1 | NP |
2,018 | https://www.mspb.gov/decisions/nonprecedential/Hatley_Tamara_L_DC-0752-21-0523-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMARA LEE HATLEY,
Appellant,
v.
FEDERAL HOUSING FINANCE
AGENCY,
Agency.DOCKET NUMBER
DC-0752-21-0523-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
ichael I. Sheeter , Esquire, and Morgan J. Smith , Esquire, Dallas, Texas,
for the appellant.
Janice A. Kullman and Samantha Parker , 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 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.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
2 The appellant asserts on review that she learned after the hearing that she was
suffering from a medical condition that causes memory loss, fatigue, and decreased
concentration. Petition for Review File, Tab 3 at 9-10. She argues that because her
medical condition affected her ability to recall certain events and the administrative
judge made credibility determinations on that basis, the initial decision must be
overturned. Id. at 10. However, we find that even if the appellant had established that
she was actually suffering from memory loss at the time of the hearing, she has not
explained why that would require the Board to reverse the initial decision. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding that the Board generally
will not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
3 Regarding the appellant’s discrimination and retaliation claims, the administrative
judge considered all of the appellant’s evidence regarding these claims but found that
the evidence was either not credible or failed to establish that a prohibited factor played
any role in her removal. Initial Appeal File, Tab 25, Initial Decision at 49-55. We
agree with the administrative judge’s analysis of the evidence, and we find that the
appellant failed to prove that her sex, age, or prior equal employment opportunity
activity was a motivating factor in her removal. We therefore need not analyze whether
the appellant could prove that discrimination or retaliation was a but-for cause of the
action, as that standard is a higher burden than motivating factor. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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.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 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 | Hatley_Tamara_L_DC-0752-21-0523-I-1_Final_Order.pdf | 2024-03-19 | TAMARA LEE HATLEY v. FEDERAL HOUSING FINANCE AGENCY, MSPB Docket No. DC-0752-21-0523-I-1, March 19, 2024 | DC-0752-21-0523-I-1 | NP |
2,019 | https://www.mspb.gov/decisions/nonprecedential/Harris_TiffanyAT-3443-21-0506-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIFFANY HARRIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-21-0506-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
iffany Harris , Bessemer, Alabama, pro se.
General Counsel , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction . On petition for review, the
appellant restates her argument that the Board has jurisdiction over her appeal as
a challenge to the agency removal action.2 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.3 5 C.F.R. § 1201.113(b).
2 As the administrative judge noted, to the extent the appellant is attempting to
challenge her July 12, 2021 removal, a Board appeal challenging that action was
docketed and has now been adjudicated. See Initial Appeal File, Tab 5, Initial Decision
(ID) at 4; see Harris v. Department of Veterans Affairs , MSPB Docket No. AT-0752-
21-0502-I-1.
3 With her petition for review, the appellant includes a copy of a July 12, 2021 equal
employment opportunity (EEO) complaint acknowledgement letter issued by the
agency, as well as a screenshot of the agency’s Office of Employment Discrimination
Complaint Adjudication (OEDCA) website. Petition for Review (PFR) File, Tab 1
at 1-11. The appellant has not shown that this information is both new and material, so
we have not considered it. See Okello v. Office of Personnel Management ,
112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d), the Board
generally will not consider evidence submitted for the first time with a petition for
review absent a showing that it is both new and material). The EEO complaint
acknowledgment letter is dated July 12, 2021, prior to the date the initial decision was
issued in this case, and so it is not new. See ID at 1. Additionally, it is not material
because it pertains to the agency’s removal decision, which has already been separately
adjudicated in another Board appeal. See Harris v. Department of Veterans Affairs ,
MSPB Docket No. AT-0752-21-0502-I-1. Although the screenshot of the OEDCA
website is undated, the material contained on the site does not appear to be new. PFR
File, Tab 1 at 2-3. Nevertheless, the appellant also has not explained how the website
information has any bearing on the jurisdictional matter at issue in this appeal, so we
have not considered it.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 | Harris_TiffanyAT-3443-21-0506-I-1_Final_Order.pdf | 2024-03-19 | TIFFANY HARRIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-21-0506-I-1, March 19, 2024 | AT-3443-21-0506-I-1 | NP |
2,020 | https://www.mspb.gov/decisions/nonprecedential/Harris_Robin_J_CH-1221-22-0150-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN JEAN HARRIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-22-0150-W-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rocky L. Coe , Esquire, Milwaukee, Wisconsin, for the appellant.
Gina M. Ozelie , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action appeal
because she did not establish that she was subjected to a covered personnel
action. On petition for review, the appellant argues, among other things, that the
agency created a hostile work environment that impacted her working conditions,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 accused the administrative judge of bias and of abusing her discretion.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant argues that the administrative judge exhibited bias and abused her
discretion by, among other things, crediting the testimony of the agency’s witnesses,
and not properly weighing the appellant’s evidence and arguments. Petition for Review
File, Tab 3 at 12-29. The appellant’s claims amount to mere disagreements with the
administrative judge’s findings, and do not serve as a basis to disturb the initial
decision. Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133-34 (1980) (stating
that mere disagreement with the administrative judge’s findings and credibility
determinations does not warrant full review of the record by the Board).
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 | Harris_Robin_J_CH-1221-22-0150-W-1__Final_Order.pdf | 2024-03-19 | ROBIN JEAN HARRIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-22-0150-W-1, March 19, 2024 | CH-1221-22-0150-W-1 | NP |
2,021 | https://www.mspb.gov/decisions/nonprecedential/Jenson_Tracy_A_SF-3443-22-0562-I-1_SF-3443-23-0074-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY A. JENSON,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
SF-3443-22-0562-I-1
SF-3443-23-0074-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
racy A. Jenson , Hayden, Idaho, pro se.
Lindsay M. Nakamura , Esquire, El Segundo, California, 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
dismissed for lack of Board jurisdiction on the basis of collateral estoppel his
appeals raising claims arising out of his pay raises beginning in October 1998.
We JOIN the appeals under 5 C.F.R. § 1201.36(b) because doing so will expedite
processing without adversely affecting the interests of the parties.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 argues that the Board has jurisdiction
to review whether the agency’s actions violated 5 U.S.C. § 2301(b)(8) and his
former peers were overpaid. He also asserts for the first time on review that his
resignation was involuntary. Generally, we grant petitions such as 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 decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decisions in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Jenson_Tracy_A_SF-3443-22-0562-I-1_SF-3443-23-0074-I-1_Final_Order.pdf | 2024-03-19 | TRACY A. JENSON v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-3443-22-0562-I-1, March 19, 2024 | SF-3443-22-0562-I-1 | NP |
2,022 | https://www.mspb.gov/decisions/nonprecedential/Muller_Eric_T_SF-0752-22-0373-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC T. MULLER,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-0752-22-0373-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
ric T. Muller , Portland, Oregon, pro se.
Timothy E. Heinlein , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
argues primarily that his retirement was involuntary because the agency ordered
him to report to work without having granted him an effective accommodation for
his disabilities. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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).
2 We recognize that the appellant indicated that he did not want a hearing on his appeal
form. Initial Appeal File (IAF), Tab 1 at 2. When an appellant has not requested a
hearing, the threshold question is not whether he has raised a nonfrivolous allegation of
jurisdiction but whether he has established by preponderant evidence that the Board has
jurisdiction over his appeal. Vitale v. Department of Veterans Affairs , 107 M.S.P.R.
501, ¶ 18 (2007). The administrative judge, however, ordered the appellant to file
evidence or argument amounting to a nonfrivolous allegation that his retirement was
involuntary and dismissed the appeal based on his determination that the appellant
failed to do so. IAF, Tab 3 at 3, Tab 8, Initial Decision. But the administrative judge’s
error did not prejudice the appellant to warrant disturbing the initial decision because
his finding that the appellant failed to satisfy even the nonfrivolous allegation standard
was correct; it follows that the appellant could not have satisfied the higher, appropriate
burden. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
3 To the extent the appellant seeks to introduce new evidence on review, which are
mainly links to articles and documents related to COVID-19 and control and prevention
measures, he has not shown that the evidence was not available before the record closed
below despite due diligence, and we thus need not consider it. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980); Petition for Review File, Tab 1 at 7-9, 14, 17.
In any event, we reviewed those resources or, if unavailable, the appellant’s
descriptions of their content, and they do not support a finding of jurisdiction. 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 | Muller_Eric_T_SF-0752-22-0373-I-1_Final_Order.pdf | 2024-03-19 | ERIC T. MULLER v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-22-0373-I-1, March 19, 2024 | SF-0752-22-0373-I-1 | NP |
2,023 | https://www.mspb.gov/decisions/nonprecedential/Walsh_Robert_J_DC-1221-21-0453-W-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT JOHN WALSH, JR.,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-1221-21-0453-W-2
DATE: March 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robert John Walsh, Jr. , Fredericksburg, Virginia, pro se.
Mark R. Hoggan , Esquire, and Michael A. Battle , Esquire, Fort Worth,
Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his Individual Right of Action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, REVERSE the finding that the appellant did not exhaust his
administrative remedies with the Office of Special Counsel (OSC) regarding 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).
January and August 2019 disclosures, VACATE the finding that the agency
proved by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the appellant’s protected disclosures, and
REMAND the case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2The appellant is a GS-14 Risk Management Specialist with the Bureau of
Engraving and Printing (BEP) in the agency’s Washington, D.C. currency facility
(DCF). Walsh v. Department of the Treasury , MSPB Docket No. DC-1221-21-
0453-W-1, Initial Appeal File (IAF), Tab 7 at 90-95; Hearing Recording,
dated June 2, 2022 (HR-2) (testimony of the appellant). The agency maintains
two currency facilities: the Washington, D.C. currency facility and the Western
currency facility, located in Fort Worth, Texas. IAF, Tab 7 at 5, 23. In 2013, the
Board of Governors of the Federal Reserve System (Board of Governors)
requested that DCF halt production on the Next Generation $100 (NXG $100)
bills “due to persistent quality problems.” Walsh v. Department of the Treasury ,
MSPB Docket No. DC-1221-21-0453-W-2, Appeal File (W-2 AF), Tab 10 at 46.
As part of its effort to improve quality control, BEP created a Change Control
Board (CCB), which was designed to govern and control changes proposed to the
agency’s currency manufacturing processes. Id.; IAF, Tab 7 at 71. The agency
also created the Correction Action and Preventative Action (CAPA) process, a
reporting program designed to address issues of nonconformity, or potential
issues of nonconformity in the change control process. IAF, Tab 7 at 20.
¶3In 2016, the appellant was appointed as the chair of the CCB by the head of
the agency’s Manufacturing Directorate. HR-2 (testimony of the appellant);
Hearing Recording, dated June 1, 2022 (HR-1) (testimony of the DCF Chief of
Currency Manufacturing). During his tenure as the CCB Chair, the appellant
raised numerous concerns about the change control process, including, but not2
limited to, the delay in revisions to the CCB charter, which prevented the CCB
from addressing weakness in the change control process, and the agency’s lack of
response to his CAPA reports. See e.g., W-2 AF, Tab 21 at 8-9, 18-25, 88-89,
110-24. On October 1, 2018, the DCF Chief of Currency Manufacturing made the
decision to remove the appellant as chair of the CCB. HR-1 (testimony of the
DCF Chief of Currency Manufacturing).
¶4On December 19, 2018, the BEP Director issued a statement of readiness to
the Board of Governors, claiming that the DCF was ready to resume “planning for
initial limited and controlled production of [NXG $100] notes” citing to, among
other things, the quality controls implemented since 2013, a certification from the
International Organization for Standardization, and a successful internal audit of
the $10 verification and validation. W-2 AF, Tab 21 at 126-28. Therefore, the
BEP Director requested that the Board of Governors initiate its independent audit
process to confirm DCF’s readiness to resume NXG $100 production.2 Id. at 128.
The appellant raised concerns about the contents of the letter, asserting that the
BEP Director was improperly relying on the $10 verification and validation audit
results, and claiming that DCF was not ready to resume NXG $100 production
because it had not adequately addressed weaknesses in quality control. HR-2
(testimony of the appellant); see e.g., W-2 AF, Tab 10 at 10, Tab 15 at 12-15.
¶5On or about January 24, 2019, the appellant addressed the BEP Director
during a town hall meeting, challenging, among other things, his comments that
the agency’s quality controls were a success, and asserting that the agency had
not addressed numerous areas of weakness in its change control procedures,
including complaining about the agency’s lack of response to CAPAs. W-2 AF,
Tab 36. On February 4, 2019, the Chief of the Office of Quality Operations
issued the appellant a professional counseling admonishing the appellant for his
“disruptive and disrespectful behavior” during the town hall, accusing him of
2 BEP could not resume the production at DCF without a third-party assessment
confirming its readiness, and the Board of Governors agreeing to resume production.
W-2 AF, Tab 21 at 126-28, Tab 28 at 18. 3
engaging with the BEP Director in “a combative and confrontational barrage of
complaints” and “grandstanding.” IAF, Tab 7 at 34-35. Then, on August 28,
2019, the appellant sent an email to all BEP chiefs, managers, members of the
Senior Executive Team, and the Associate Director of Quality, in which he
summarized his comments during the town hall, attached a copy of his
professional counseling, and accused the BEP Director of falsely claiming the
CCB was a success. W-2 AF, Tab 24 at 40-42.
¶6On September 10, 2019, the Chief of the Office of Quality Operations
issued the appellant a letter of reprimand based on unprofessional conduct for his
August 28, 2019 email. IAF, Tab 7 at 36-37. He also issued the appellant a
direct order, instructing him to refrain from using BEP email, BEP phone, BEP
blog, or any other type of agency media “to discuss any grievance or complaint
with any segment of the BEP workforce,” with the exceptions of his supervisory
chain, the Office of Inspector General, Congress, the Equal Employment
Opportunity Commission or Equal Employment Opportunity personnel, or OSC.
Id. at 38-39. However, on April 1, 2020, the appellant sent two separate emails to
an agency distribution list concerning resuming currency production during the
COVID-19 pandemic. Id. at 40-44. Because these emails violated the agency’s
direct order issued to the appellant, on May 21, 2020, the Chief of the Office of
Quality Operations issued the appellant a 7-day proposed suspension.3 Id.
at 29-33.
¶7On or about March 18, 2019, the appellant filed a complaint with OSC,
claiming that in retaliation for his disclosures about the CCB and the weaknesses
in the agency’s change control process and quality management system, the
agency retaliated against him. IAF, Tab 1 at 26-30. After OSC issued him a
close-out letter, the appellant timely filed an IRA appeal with the Board. IAF,
Tab 1. The administrative judge notified the appellant of the applicable
3 On June 9, 2021, the agency rescinded the proposed 7-day suspension and direct order
regarding the use of various agency systems and media. IAF, Tab 7 at 19.4
jurisdictional standard, and after allowing the parties to respond, he found that the
appellant made a nonfrivolous allegation that he made protected disclosures
during his tenure as the CCB chair regarding weaknesses in the CCB and CAPA
process, as well as the agency’s overall quality control process, and that these
protected disclosures were a contributing factor in the following personnel
actions: (1) his removal as the CCB Chair; (2) the professional counseling;
(3) the letter of reprimand; and (4) the proposed 7-day suspension. IAF, Tabs 3,
11.
¶8After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. W-2 AF, Tab 51, Initial
Decision (ID). First, the administrative judge found that the appellant reasonably
believed that his reports of deviations from the CCB process and CAPA’s
ineffectiveness evidenced gross mismanagement, because these deviations could
potentially result in unauthorized changes to currency production. ID at 15-17.
He therefore concluded that the appellant proved he made protected disclosures
during his tenure as the CCB chair, i.e., from 2016 to 2018. ID at 17. He then
found that the appellant proved that his protected disclosures were a contributing
factor in the four identified personnel actions. ID at 17, 22-23. The
administrative judge also found that the appellant did not claim in his OSC
complaint that he was retaliated against for his disclosures at the January 2019
town hall or in his August 2019 email, and thus, the Board lacked jurisdiction
over those claims.4 ID at 27.
¶9Next, the administrative judge found that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s protected disclosures. ID at 17 -31. Specifically, the
administrative judge found that the agency presented strong evidence in support
of its personnel actions, for instance, that it removed the appellant from the CCB
4 This finding was made in the administrative judge’s analysis of the second Carr factor
regarding the September 2019 letter of reprimand. ID at 27. 5
based on operational needs, that it issued him a professional counseling and
written reprimand due to exhibited misconduct, and that it issued him a proposed
7-day suspension because he violated a direct order. ID at 17 -20, 23-30.
Furthermore, the administrative judge found that the agency officials involved in
the personnel actions had, at most, a limited institutional motive to retaliate and
explained that even though the agency failed to present comparator evidence,
such lack of evidence was not detrimental or fatal to the agency’s case.5 ID
at 20-21, 25, 27-28, 30-31. Therefore, the administrative judge found that the
agency met its burden of proof by clear and convincing evidence and denied the
appellant’s request for corrective action. ID at 31.
¶10The appellant filed a petition for review arguing, among other things, that
the agency did not meet its clear and convincing burden because the evidence
establishes that the personnel actions were retaliatory.6 Petition for Review
5 The administrative judge also found that the appellant’s actions and conduct were so
unique that the appellant was in a “class of one,” and therefore, comparator evidence
would not be readily available. ID at 21, 25, 31. The administrative judge relied on
Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 n.9, in which the Board
opined that there could be a situation in which “the agency may present persuasive
evidence that no appropriate comparators exist.” ID at 21. Here, the administrative
judge made the finding that the appellant was in a “class of one” without the agency
presenting any such evidence. However, the administrative judge ultimately found that
lack of comparator evidence was not detrimental or fatal to the agency’s case. ID at 21,
27-28, 31. This finding does not run afoul of the relevant case law, which holds that the
third Carr factor cannot weigh in favor of the agency if the agency fails to produce
comparator evidence. See Smith v. General Services Administration , 930 F.3d 1359,
1367 (Fed. Cir. 2019). Therefore, because the third Carr factor was not weighed in
favor of the agency, any error by the administrative judge in finding that the appellant
was a “class of one” does not provide a basis for reversal. 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).
6 The appellant also argues that the administrative judge abused his discretion by
denying his request for members of the agency’s Office of General Counsel to testify.
PFR File, Tab 3 at 20-21. It is well established that an administrative judge has wide
discretion under the Board’s regulations to exclude witnesses when it has not been
shown that their testimony would be relevant, material, and nonrepetitious. Franco v.
U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985); see 5 C.F.R. § 1201.41(b)(8), (10).
The appellant has presented no evidence or argument demonstrating the relevancy of6
(PFR) File, Tab 3 at 7-20. The agency responded in opposition to the appellant’s
petition for review. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant exhausted his administrative remedies with respect to his
disclosures in the January 2019 town hall and the August 2019 email.
¶11To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant
must have provided OSC with a sufficient basis to pursue an investigation into his
allegations of whistleblower reprisal. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 7; Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s OSC
complaint, evidence the original complaint was amended, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC. Skarada,
2022 MSPB 17, ¶ 7; Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011). Alternatively, exhaustion may be proven through other
sufficiently reliable evidence, such as an affidavit attesting that the appellant
raised with OSC the substance of the facts in his Board appeal. Skarada,
2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11.
¶12Contrary to the administrative judge’s findings, ID at 27, we find that the
appellant exhausted his administrative remedies regarding his disclosures made in
the January 2019 town hall and in his August 2019 email. First, in his response
to the administrative judge’s jurisdictional order, which was sworn under penalty
of perjury, the appellant confirmed that he amended his complaint to include the
September 2019 letter of reprimand and the direct order, both of which were
issued in response to his August 2019 email. IAF, Tab 6 at 3-4. Furthermore, the
record contains an email to the OSC investigator in which the appellant claimed
these witnesses, and thus, there is no evidence that the administrative judge abused his
discretion. PFR File, Tab 3 at 20-21. 7
he was reprimanded for challenging the BEP Director during the January 2019
town hall meeting. W-2 AF, Tab 13 at 97-98.
¶13The professional counseling and the letter of reprimand are inextricably
intertwined with the January 2019 town hall and the August 2019 email because
the personnel actions were issued as a direct response to these incidents.
Therefore, because the appellant raised the professional counseling and the letter
of reprimand with OSC, he necessarily raised the basis of these personnel actions
with OSC, i.e., the January 2019 town hall and the August 2019 email. Thus, we
find that the appellant exhausted his administrative remedies because he provided
OSC with sufficient basis to pursue an investigation into a claim that he was
retaliated against for his disclosures made at the January 2019 town hall and in
his August 2019 email.
Remand is necessary for the administrative judge to apply the whistleblower
protection analytical framework to the appellant’s January and August 2019
disclosures and to determine the applicability of 5 U.S.C. § 2302(f)(2).
¶14The administrative judge did not apply the whistleblower protection
analytical framework to the appellant’s disclosures made at the January 2019
town hall or in his August 2019 email. Therefore, on remand, the administrative
judge shall determine whether the appellant established that his January and
August 2019 disclosures were protected, and if so, whether they were a
contributing factor in any of the four identified personnel actions. 5 U.S.C.
§ 1221(e)(1); Salazar v. Department of Veterans Affairs , 2022 MSPB 42, ¶ 23.
The administrative judge shall also consider whether the appellant made any of
his disclosures during the normal course of his duties as a Risk Management
Analyst, and thus, whether the higher burden of proof set forth in 5 U.S.C.
§ 2302(f)(2) is applicable.7 If the administrative judge determines that
section 2302(f)(2) applies, and the appellant’s disclosures are not protected under
7 In determining the applicability of 5 U.S.C. § 2302(f)(2), the administrative judge
should consider the Board’s guidance set forth in Salazar, 2022 MSPB 42, and
Williams v. Department of Defense , 2023 MSPB 23. 8
the higher burden of proof, then the administrative judge must end his or her
analysis. 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 in the absence of a finding that the appellant established a prima
facie case of whistleblower reprisal), aff’d per curiam , 623 F. App’x 1016 (Fed.
Cir. 2015). However, if the administrative judge finds that section 2302(f)(2)
does not apply, or that section 2302(f)(2) applies and the appellant’s disclosures
are protected under the higher burden of proof, then the administrative judge shall
consider whether the agency met its burden by clear and convincing evidence
regarding the four accepted personnel actions. 5 U.S.C. § 1221(e)(1)-(2);
Salazar, 2022 MSPB 42, ¶ 34.
¶15The administrative judge shall hold a supplemental hearing and allow the
parties the opportunity to address the applicability of 5 U.S.C. § 2302(f)(2). The
administrative judge may also hold a supplemental hearing regarding any other
matters that he or she deems necessary. A new initial decision must then be
issued, identifying all material issues of fact and law, summarizing the evidence,
resolving issues of credibility, and setting forth the administrative judge’s
conclusions of law and his or her legal reasoning, as well as the authorities on
which that reasoning rests . Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980). To the extent that it is consistent with this order, the
administrative judge may incorporate the prior findings related to the appellant’s
2016-2018 protected disclosures in the remand initial decision. However,
regardless, if the administrative judge discerns that any of the evidence or
argument on remand impacts the analysis of the issues in this appeal, he or she
should address such argument or evidence in the remand initial decision. 9
ORDER
¶16For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Walsh_Robert_J_DC-1221-21-0453-W-2__Remand_Order.pdf | 2024-03-19 | null | DC-1221-21-0453-W-2 | NP |
2,024 | https://www.mspb.gov/decisions/nonprecedential/Davidson_David_L_AT-3330-14-0603-B-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. DAVIDSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-3330-14-0603-B-3
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J. Cole Davis , Esquire, Panama City, Florida, for the appellant.
David Kendrick , 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
denied his request for corrective action in his Veterans Employment
Opportunities Act (VEOA) appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. For the reasons discussed below, we DENY the appellant’s petition for
review, VACATE the initial decision, but still DENY corrective action on a basis
different than that articulated in the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
At all relevant times, the appellant was a preference-eligible employed by
the agency in Orlando, Florida, as a GS-7 Contract Specialist. Davidson v.
Department of the Navy , MSPB Docket No. AT-3330-14-0603-I-1, Initial Appeal
File (IAF), Tab 1 at 7; Davidson v. Department of the Navy , MSPB Docket
No. AT-3330-14-0603-B-2, Appeal File (B-2 AF), Tab 7 at 44. The appellant
applied to an announcement advertising two agency GS-7 Contract Specialist
vacancies located in Panama City, Florida, in the same office which employed his
wife. IAF, Tab 1 at 9, Tab 9 at 4-8; Davidson v. Department of the Navy , MSPB
Docket No. AT-3330-14-0603-B-3, Appeal File (B-3 AF), Tab 20, Hearing
Transcript at 143-44 (testimony of the selecting official). The vacancies, which
were posted under the agency’s Pathways Recent Graduates program, were open
to all applicants who had completed qualifying education requirements within
specified timeframes. IAF, Tab 9 at 4-5. The appellant was not selected for
either vacancy. IAF, Tab 1 at 9.
The appellant filed a VEOA complaint regarding his nonselection with the
Department of Labor (DOL). IAF, Tab 11 at 14-20. After DOL issued him a2
close-out letter, the appellant filed a Board appeal in which he claimed that the
agency violated his right to compete for the vacancies under 5 U.S.C. § 3304(f)
(1). IAF, Tab 1, Tab 11 at 4-5. Specifically, the appellant alleged that agency
officials refused to consider him because they erroneously believed hiring him
would constitute nepotism since the appellant’s wife worked in the office where
the vacancies were located. IAF, Tab 11 at 4-5.
The administrative judge found jurisdiction over the appeal but, without
holding a hearing, denied the appellant corrective action on the grounds that the
agency, which referred the appellant to the selecting official after reviewing his
resume, was not required to consider him at every stage of the selection process.
Davidson v. Department of the Navy , MSPB Docket No. AT-3330-14-0603-I-1,
Initial Decision at 3 (June 10, 2014). On review, the Board vacated the initial
decision and remanded the case for a hearing, concluding that a genuine dispute
of material fact remained regarding what consideration, if any, the selecting
official gave to the appellant’s application, and whether the agency
inappropriately applied nepotism rules in denying the appellant the opportunity to
compete. Davidson v. Department of the Navy , MSPB Docket No. AT-3330-14-
0603-I-1, Remand Order, ¶¶ 1, 10 (Dec. 15, 2014).
After holding a hearing on remand, the administrative judge again denied
the appellant’s request for corrective action, concluding that the agency did not
deny the appellant the opportunity to compete under 5 U.S.C. § 3304(f)(1). B-3
AF, Tab 28, Remand Initial Decision. The appellant filed a petition for review.
Davidson v. Department of the Navy , MSPB Docket No. AT-3330-14-0603-B-3,
Petition for Review (B-3 PFR) File, Tab 3. The agency filed a response, to which
the appellant replied. B-3 PFR File, Tabs 5, 6.
The appellant was not entitled to corrective action under 5 U.S.C. § 3304(f)(1) as
a matter of law.
The Board’s regulations reserve to it the authority to consider any issue in
an appeal before it. McClenning v. Department of the Army , 2022 MSPB 3, ¶ 16;3
5 C.F.R. § 1201.115(e). Thus, we exercise our authority to deny the appellant
corrective action on a basis which the agency did not raise.
The Board has held that the right to compete under 5 U.S.C. § 3304(f)(1) is
not limited merely to situations in which an agency elects to use merit promotion
procedures, but rather is triggered when an agency accepts applications from
individuals outside its own workforce, as was the case here. Montgomery v.
Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 7 (2016); IAF,
Tab 9 at 4-5. But in Kerner v. Department of the Interior , 778 F.3d 1336,
1338-39 (Fed. Cir. 2015), which was decided after the remand order was issued in
this appeal, the U.S. Court of Appeals for the Federal Circuit concluded that
VEOA was intended to assist veterans in gaining access to Federal employment
and that 5 U.S.C. § 3304 did not apply when an applicant was already employed
in the Federal civil service. In Oram v. Department of the Navy , 2022 MSPB 30,
¶ 17, the Board followed Kerner in finding that a current Federal employee was
not entitled to recovery on his claim that he was denied an opportunity to compete
under 5 U.S.C. § 3304(f) as a matter of law.
The appellant was already employed in the Federal civil service when he
applied to the vacancies at issue. B-2 AF, Tab 7 at 44. Thus, under Kerner and
Oram, he was not entitled to an opportunity to compete under 5 U.S.C. § 3304(f)
(1) and is not entitled to corrective action under VEOA.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation5
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Davidson_David_L_AT-3330-14-0603-B-3__Final_Order.pdf | 2024-03-19 | DAVID L. DAVIDSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-3330-14-0603-B-3, March 19, 2024 | AT-3330-14-0603-B-3 | NP |
2,025 | https://www.mspb.gov/decisions/nonprecedential/Kingsbury_Katy_PH-3443-18-0242-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATY KINGSBURY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-3443-18-0242-I-1
PH-3443-18-0286-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Katy Kingsbury , Strafford, New Hampshire, pro se.
Alison L. McKay , Matthew L. Schmid , and Jeffrey A. Epstein , Portsmouth,
New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed petitions for review of two initial decisions, both of
which dismissed her appeals for lack of jurisdiction. On petition for review, the
appellant alleges that the Board has jurisdiction over her employment practices
claims because improper hiring at the agency is a systematic issue, as evidenced
by the agency’s failure to select her for a number of positions over the years.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Kingsbury v. Department of the Navy , MSPB Docket No. PH-3443-18-0242-I-1,
Petition for Review (0242 PFR) File, Tab 1 at 1-12; Kingsbury v. Department of
the Navy, MSPB Docket No. PH-3443-18-0286-I-1, Petition for Review
(0286 PFR) File, Tab 1 at 1-10.2 Generally, we grant petitions such as these only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in these appeals, we JOIN these appeals,3 and
2 On review, the appellant notes that a requirement under 5 C.F.R. § 300.103(c) is that
employment practices may not discriminate based on non-merit-based factors. 0242
PFR File, Tab 1 at 10. To the extent the appellant is alleging that the administrative
judge erred in addressing her allegations of discrimination because he did not consider
them in the context of her employment practices claims, any such argument does not
provide a basis for disturbing the initial decision because the administrative judge
properly found that the Board lacks jurisdiction over her employment practices claims.
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).
In addition, the appellant submits on review numerous documents. 0242 PFR File,
Tab 1 at 13-38; 0286 PFR File, Tab 1 at 11-21. We need not address this evidence
because most of these documents are not new and, in any event, are not material to the
outcome of the appeal. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980) (stating that, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party's due diligence); Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (concluding 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 Joinder of two or more appeals filed by the same appellant may be appropriate when
joinder would expedite processing of the appeals and would not adversely affect the
interests of the parties. Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶ 142
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 in each appeal. 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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
(2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We
find that these appeals meet the regulatory criteria, and therefore, we join them.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kingsbury_Katy_PH-3443-18-0242-I-1__Final_Order.pdf | 2024-03-19 | KATY KINGSBURY v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-3443-18-0242-I-1, March 19, 2024 | PH-3443-18-0242-I-1 | NP |
2,026 | https://www.mspb.gov/decisions/nonprecedential/Kingsbury_Katy_PH-3443-18-0286-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATY KINGSBURY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-3443-18-0242-I-1
PH-3443-18-0286-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Katy Kingsbury , Strafford, New Hampshire, pro se.
Alison L. McKay , Matthew L. Schmid , and Jeffrey A. Epstein , Portsmouth,
New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed petitions for review of two initial decisions, both of
which dismissed her appeals for lack of jurisdiction. On petition for review, the
appellant alleges that the Board has jurisdiction over her employment practices
claims because improper hiring at the agency is a systematic issue, as evidenced
by the agency’s failure to select her for a number of positions over the years.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Kingsbury v. Department of the Navy , MSPB Docket No. PH-3443-18-0242-I-1,
Petition for Review (0242 PFR) File, Tab 1 at 1-12; Kingsbury v. Department of
the Navy, MSPB Docket No. PH-3443-18-0286-I-1, Petition for Review
(0286 PFR) File, Tab 1 at 1-10.2 Generally, we grant petitions such as these only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in these appeals, we JOIN these appeals,3 and
2 On review, the appellant notes that a requirement under 5 C.F.R. § 300.103(c) is that
employment practices may not discriminate based on non-merit-based factors. 0242
PFR File, Tab 1 at 10. To the extent the appellant is alleging that the administrative
judge erred in addressing her allegations of discrimination because he did not consider
them in the context of her employment practices claims, any such argument does not
provide a basis for disturbing the initial decision because the administrative judge
properly found that the Board lacks jurisdiction over her employment practices claims.
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).
In addition, the appellant submits on review numerous documents. 0242 PFR File,
Tab 1 at 13-38; 0286 PFR File, Tab 1 at 11-21. We need not address this evidence
because most of these documents are not new and, in any event, are not material to the
outcome of the appeal. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980) (stating that, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party's due diligence); Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (concluding 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 Joinder of two or more appeals filed by the same appellant may be appropriate when
joinder would expedite processing of the appeals and would not adversely affect the
interests of the parties. Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶ 142
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 in each appeal. 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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
(2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We
find that these appeals meet the regulatory criteria, and therefore, we join them.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kingsbury_Katy_PH-3443-18-0286-I-1_Final_Order.pdf | 2024-03-19 | KATY KINGSBURY v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-3443-18-0242-I-1, March 19, 2024 | PH-3443-18-0242-I-1 | NP |
2,027 | https://www.mspb.gov/decisions/nonprecedential/Goodrich_Timothy_PH-0752-21-0270-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY GOODRICH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-21-0270-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Goodrich , Yelm, Washington, pro se.
Brandon Gatto , Esquire, and David P. Tomaszewski , Esquire, Tobyhanna,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
(1) sustained four charges of misconduct, (2) found that the appellant did not
prove his affirmative defenses of failure to accommodate and status-based
disability discrimination and retaliation for disability-based equal employment
opportunity (EEO) activity, and (3) affirmed the appellant’s removal. On petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
for review, the appellant asserts that his supervisors committed perjury, but does
not identify any allegedly false statements or challenge any of the administrative
judge’s findings. Generally, we grant petitions such as 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
supplement the initial decision’s analysis of the appellant’s discrimination and
retaliation claims, we AFFIRM the initial decision.
After the administrative judge issued the initial decision, the Board
clarified the proper analytical framework for adjudicating status-based disability
discrimination2 claims under the Rehabilitation Act. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 40. Under Pridgen, the appellant
bears the initial burden of proving by preponderant evidence that his disability
was a motivating factor in his removal. Pridgen, 2022 MSPB 31, ¶¶ 21, 40.
Here, the administrative judge found that the appellant proved that his disability
was a motivating factor in the agency’s decision to remove him because the
agency learned of the appellant’s disability only a month before proposing his
removal and 3 months before the removal decision. Initial Appeal File (IAF),
2 The appellant does not challenge the administrative judge’s finding that he did not
show that the agency failed to provide him with a reasonable accommodation, and we
see no error in that finding.
3
Tab 32, Initial Decision (ID) at 21. We find that the timing alone is insufficient
by itself to show motivating factor under the circumstances of this case. The
record shows that the sustained misconduct occurred between August 31, 2020,
and October 21, 2020, and the agency proposed the appellant’s removal on
October 29, 2020, and effected the removal on December 7, 2020. IAF, Tab 5
at 65, Tab 6 at 19-22. Nothing in the agency’s decision to act expeditiously
suggests an improper motive. Moreover, the administrative judge noted the “very
credible” testimony of the proposing and deciding officials denying being
influenced during the removal process by their knowledge of the appellant’s
disabilities and remarked that their testimony was corroborated by other evidence
in the record. ID at 22; Hearing Transcript at 42-43 (testimony of the proposing
official), 102-103, 112-120 (testimony of the deciding official). We see no
reason to set aside the administrative judge’s credibility findings. See Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (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). Based on a careful review of the
record, we find that the appellant did not show that his disability was a
motivating factor in his removal.3
The Board has also clarified the proper analytical framework for
adjudicating claims of retaliation for engaging in EEO activity protected under
the Rehabilitation Act. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33; see
Pridgen, 2022 MSPB 31, ¶¶ 44, 47. Such claims are subject to a “but-for”
causation standard. Desjardin, 2023 MSPB 6, ¶ 33; Pridgen, 2022 MSPB 31,
¶¶ 44, 47. In addition, the burden of proof does not shift to the agency but
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to
address whether discrimination was a “but-for” cause of the removal action. See
Pridgen, 2022 MSPB 31, ¶¶ 20-25.
4
remains with the appellant. Pridgen, 2022 MSPB 31, ¶¶ 46-47. The
administrative judge here incorrectly required the agency to show that it would
have removed the appellant absent his protected activity and found that the
agency met that burden. ID at 21-22. If prior EEO activity is a “but-for” cause
of retaliation, there is, by definition, no other proper reason for that action.
Pridgen, 2022 MSPB 31, ¶ 47. Because the administrative judge found that the
agency proved that it would have removed the appellant in the absence of his
EEO activity, it has been established that there was a proper reason for the
removal action. Therefore, even after properly allocating the burden of proof to
the appellant, we find that he cannot show that retaliation was a “but-for” cause
of his removal.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. | Goodrich_Timothy_PH-0752-21-0270-I-1__Final_Order.pdf | 2024-03-19 | TIMOTHY GOODRICH v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-21-0270-I-1, March 19, 2024 | PH-0752-21-0270-I-1 | NP |
2,028 | https://www.mspb.gov/decisions/nonprecedential/Ramsey__Andrew_AT-0752-22-0168-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW RAMSEY ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-22-0168-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, Atlanta, Georgia, for the appellant.
Aundrea M. Snyder , 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
sustained his demotion. Generally, we grant petitions such as 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,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The agency demoted the appellant from his position as a GS-13 Safety and
Occupational Health Manager to a nonsupervisory GS-12 position based on three
charges. Initial Appeal File (IAF), Tab 4 at 11-13, 78-81. Charge (1) averred
that the appellant failed to adequately perform his supervisory duties regarding
the time and attendance of two subordinates. Id. at 12, 78-79. Charge (2)
concerned the appellant’s alleged unbecoming conduct that gave the appearance
of an improper relationship with a subordinate employee. Id. at 12, 79-80.
Charge (3) concerned the appellant’s lack of candor when asked about his
relationship with the subordinate. Id. at 12-13, 80-81.
After holding the requested hearing, the administrative judge found that the
agency met its burden of proof concerning the charges, nexus, and penalty and
that the appellant failed to meet his burden concerning his affirmative defenses of
sex-based and race-based discrimination and retaliation for equal employment
opportunity (EEO) activity. IAF, Tab 26, Initial Decision (ID) at 3-29. The
appellant has filed a petition for review, in which he challenges virtually all the
administrative judge’s findings. Petition for Review (PFR) File, Tab 3 at 5-13.
The agency has responded in opposition to the petition for review. PFR File,
Tab 5.
Regarding the appellant’s challenges to the administrative judge’s factual
findings, the administrative judge properly evaluated the hearing testimony and
3
made credibility determinations in accordance with the standards set forth in
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). ID at 17-19, 22.
The appellant has not identified a sufficiently sound reason for disturbing these
findings.2 PFR File, Tab 3 at 6-9; see Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002) ( stating that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing and
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so). The appellant also argues that the administrative judge’s legal
analysis was conclusory and vague — particularly regarding charges (2) and (3)
— because she did not explicitly address what the appearance of an improper
relationship was, to whom the appearance was created, and what statements
lacked candor. PFR File, Tab 3 at 9. We disagree; this information is clearly set
forth in the agency’s charges and thoroughly addressed in the initial decision.3
IAF, Tab 4 at 79-81; ID at 14-22. The appellant has not shown why we should
disturb the initial decision in this regard.4 Crosby v. U.S. Postal Service ,
2 In his petition for review, the appellant cites, among other things, Connolly v.
Department of Justice , 766 F.2d 507, 512 (Fed. Cir. 1985) for the proposition that the
Board’s authority to review an initial decision is “plenary.” PFR File, Tab 3 at 6. In
doing so, he ignores the U.S. Court of Appeals for the Federal Circuit’s qualifier: “with
deference of course to the presiding official on any issues of credibility.” Connolly,
766 F.2d at 512.
3 Regarding the second charge of conduct unbecoming, the Board has held that
unbecoming conduct includes conduct which was improper, unsuitable, or that detracted
from one’s character or reputation. Social Security Administration v. Long ,
113 M.S.P.R. 190, ¶ 42 (2010), aff'd, 635 F.3d 526 (Fed. Cir. 2011) and overruled on
other grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.
Although not specifically defined by the administrative judge, she correctly found that
the appellant’s conduct fell within that broad label.
4 The appellant also suggests — for the first time on review — that a delay by the
agency in proposing discipline for the lax oversight of his subordinates’ time and
attendance shows that the charge was “pretextual.” PFR File, Tab 3 at 7. The Board
generally will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245,
4
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) (same).
The appellant also challenges the administrative judge’s findings as to
nexus and penalty. PFR File, Tab 3 at 9-10. He argues that the administrative
judge did not analyze the nexus between his off-duty conduct of having lunch and
going to a motel with a subordinate and the efficiency of the service.5 Id. To the
extent that the administrative judge’s nexus analysis was incomplete, we
supplement that analysis and find that any error did not prejudice the appellant’s
substantive rights. ID at 22-23. The agency proved that the apparent relationship
negatively affected interactions in the workplace. IAF, Tab 9 at 34-35, 54,
Tab 24, Hearing Recording (testimonies of Safety Specialist, Explosives; Safety
Specialist; and Engineering Technician). Thus, the nexus between the conduct
and the efficiency of the service is clear. See Kruger v. Department of Justice ,
32 M.S.P.R. 71, 74 (1987) (stating that an agency may show a nexus linking an
employee’s off-duty misconduct with the efficiency of the service by showing
that the misconduct affects the employee’s or his coworkers’ job performance, or
management’s trust and confidence in the employee’s job performance).
Regarding the penalty, the appellant argues that a demotion is too harsh; however,
his disagreement with the penalty does not demonstrate any legal or factual error
¶ 6 (2016). The appellant has not shown why he could not have raised this argument
below. In any event, the appellant has not shown that, under the circumstances, the
agency’s delay in discovering the time and attendance issues was suspicious or
undermines the agency’s charge in any way.
5 Although the appellant was on leave at the time of the conduct, he allowed his
subordinate employee not to take leave. IAF, Tab 4 at 80; ID at 14.
5
by the administrative judge.6 PFR File, Tab 3 at 10; ID at 23-25; 5 C.F.R.
§ 1201.115.
Lastly, the appellant renews his claims of race-based and sex-based
discrimination and retaliation for EEO activity. PFR File, Tab 3 at 10-13.
Applying the standard set forth by the Board in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), the administrative judge found that the appellant
failed to prove by preponderant evidence that a prohibited consideration was a
motivating factor in the agency’s demotion action. ID at 25-29. We find no basis
on which to reverse the administrative judge’s findings on these claims. Because
the appellant did not show that discrimination or retaliation was a motivating
factor in the action, we do not reach the question as to whether he proved that a
prohibited consideration was a but-for cause of the action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection 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 In arguing that the penalty was too harsh, the appellant contends, among other things,
that there was insufficient evidence of an improper relationship with his subordinate to
sustain the lack of candor charge. PFR File, Tab 3 at 10. The administrative judge
found that the appellant’s denial of an improper relationship was unconvincing in the
face of the credible testimony of the agency’s witnesses and the clear facts to the
contrary. ID at 18-19. We discern no reason to disturb the administrative judge’s
credibility findings in this regard. See Haebe, 288 F.3d at 1301. Thus, this argument is
unavailing.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Ramsey__Andrew_AT-0752-22-0168-I-1 Final Order.pdf | 2024-03-19 | ANDREW RAMSEY v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-22-0168-I-1, March 19, 2024 | AT-0752-22-0168-I-1 | NP |
2,029 | https://www.mspb.gov/decisions/nonprecedential/Duran_Theresa_M_DE-531D-16-0470-A-1_Final_Order_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA M. DURAN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBERS
DE-531D-16-0329-A-1
DE-531D-16-0470-A-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Jennifer A. Weger , Esquire, 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 addendum initial decision,
which awarded the appellant $201,989.40 in attorney fees and $8,946.40 in costs.
For the reasons discussed below, we GRANT the agency’s petition for review and
AFFIRM the initial decision AS MODIFIED, decreasing the amount of the
attorney fee award. Except as expressly MODIFIED by this Final Order, the
initial decision is the Board’s final 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).
BACKGROUND
On December 15, 2015, the appellant filed an appeal of her removal for
medical inability to perform and raised affirmative defenses of disability
discrimination (failure to accommodate), retaliation for prior equal employment
opportunity (EEO) activity, and whistleblower reprisal. Duran v. Department of
Justice, MSPB Docket No. DE-0752-16-0116-I-1/2. Subsequently, on June 2,
2016, the appellant filed an appeal of the denial of a within grade increase (WIGI)
in 2013 (Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-I-
1/2) and on September 7, 2016, an appeal of a constructive denial of a WIGI in
2015 (Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0470-I-
1/2). In both WIGI appeals, she raised affirmative defenses of EEO and
whistleblower reprisal. All three appeals were initially joined on September 16,
2016, for discovery and hearing, but joinder was terminated on July 24, 2017,
prior to the issuance of the initial decisions in each case.
In MSPB Docket No. DE-531D-16-0329-I-2, the administrative judge
reversed the agency’s reconsideration decision denying the appellant a WIGI in
2013 and found that the agency’s actions constituted reprisal for the appellant’s
protected EEO activity (filing EEO complaints and requesting reasonable
accommodations).2 In MSPB Docket No. DE-531D-16-0470-I-2, the
administrative judge reversed the agency’s constructive denial of the appellant’s
WIGI in 2015 but found that the appellant did not prove her affirmative defenses
of EEO or whistleblower reprisal. The initial decisions became the Board’s final
decisions when neither party filed a petition for review. In MSPB Docket
No. DE-0752-16-0116-I-2, the administrative judge affirmed the agency’s
removal and found that the appellant failed to prove any of her affirmative
defenses. On review, the Board affirmed the initial decision, as modified, still
2 The administrative judge found that the appellant failed to prove her affirmative
defense of whistleblower reprisal. Duran v. Department of Justice , MSPB Docket
No. DE-531D-16-0329-I-2, Appeal File, Tab 75 at 19-21.2
sustaining the removal and finding that the appellant failed to prove her
affirmative defenses.
On December 30, 2017, the appellant filed a motion for attorney fees and
costs in connection with the Board’s final orders reversing the agency’s WIGI
denials. Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-
A-1, Attorney Fee File (0329 AFF), Tab 1; Duran v. Department of Justice ,
MSPB Docket No. DE-531D-16-0470-A-1, Attorney Fee File (0470 AFF), Tab 1.
In her motion, she sought $315,353.52 in attorney fees and costs incurred by the
two law firms that had represented her: the Law Offices of Eric L. Pines, PLLC
(Pines Law Firm), and Kalijarvi, Chuzi, Newman, & Fitch, P.C. (KCNF). Id.
The administrative judge issued an addendum initial decision awarding the
appellant attorney fees and costs in the amount of $210,935.80. 0329/0470 AFF,
Tab 21, Addendum Initial Decision (AID). In particular, she awarded $85,124.40
in attorney fees to KCNF and $116,865.00 in attorney fees to the Pines Law Firm.
AID at 16. She further ordered the agency to pay costs in the amount of $898.72
to KCNF and $8,047.68 to the Pines Law Firm. Id.
The agency has filed a petition for review arguing that the fees awarded are
excessive because the administrative judge failed to reduce the total amount to
account for the appellant’s limited success in prevailing in only two of her three
appeals. Petition for Review (PFR) File, Tab 1. The appellant has filed a
response in opposition to the petition for review, and the agency has filed a reply.
PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
To receive an award of attorney fees under 5 U.S.C. § 7701(g)(1), an
appellant must show the following: (1) she was the prevailing party; (2) she
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of attorney fees is warranted in the interest of justice; and (4) the amount3
of attorney fees claimed is reasonable.3 See Caros v. Department of Homeland
Security, 122 M.S.P.R. 231, ¶ 5 (2015). The agency has not challenged the
appellant’s prevailing party status, that she incurred attorney fees pursuant to an
existing attorney-client relationship, or that an award of attorney fees is
warranted. Nor does the agency challenge the costs awarded. Accordingly, we
limit our review of the addendum initial decision to whether the fees awarded are
reasonable.
In Hensley v. Eckerhart , 461 U.S. 424 (1983), the Supreme Court set forth
a scheme for determining a reasonable fee award in a case when, as in this case,
the prevailing party did not obtain all the relief requested. The most useful
starting point, the Court explained, is to take the hours reasonably spent on the
litigation multiplied by a reasonable hourly rate. Id. at 433; see Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 10 (2011). This is the “lodestar” that the
Board uses in determining the fee award. Lizut v. Department of the Navy ,
42 M.S.P.R. 3, 7-8 (1989). The initial calculation should exclude hours for which
the prevailing party failed to provide adequate documentation and hours that were
not reasonably expended. Hensley, 461 U.S. at 433-34.
In the second phase of the analysis, the lodestar may be adjusted upward or
downward based on other considerations, including the crucial factor of the
“results obtained.” Id. at 434. If the party seeking fees has achieved only
“partial or limited success,” an award based on the hours reasonably spent on the
litigation as a whole times an hourly rate may be an excessive amount, even when
3 Under 5 U.S.C. § 7701(g)(2), when the appellant is a prevailing party and the decision
is based on a finding of discrimination prohibited under 5 U.S.C. § 2302(b)(1), attorney
fees may be awarded in accordance with the standards prescribed under 42 U.S.C.
§ 2000e–5(k). The provision at 42 U.S.C. § 2000e–5(k) states that the court, “in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . as part of
the costs.” The Board has held that 5 U.S.C. § 7701(g)(2) is a broader standard than
5 U.S.C. § 7701(g)(1). See Chin v. Department of the Treasury , 55 M.S.P.R. 84, 86
(1992). Thus, because the appellant prevailed on her affirmative defense of reprisal, the
administrative judge properly analyzed whether any fees or costs not recoverable
pursuant to section 7701(g)(1) were recoverable pursuant to section 7701(g)(2). AID at
14-15.4
the claims were interrelated, nonfrivolous, and raised in good faith. Id. at 436.
In this scenario, the tribunal awarding fees has discretion to make an equitable
judgment as to what reduction is appropriate. Id. at 436-37. It may adjust the
lodestar downward by identifying specific hours that should be eliminated or, in
the alternative, by reducing the overall award to account for the limited degree of
success. Id.; Smit v. Department of the Treasury , 61 M.S.P.R. 612, 619 (1994).
The former method should be used in cases when it is practicable to segregate the
hours devoted to related but unsuccessful claims. See Boese v. Department of the
Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986); Smit, 61 M.S.P.R. at 619-20.
Here, the administrative judge found that the total fees sought by KCNF
were reasonable. AID at 9. Regarding the Pines Law Firm, the administrative
judge found that 26 hours were not reasonable because they were related to the
appellant’s removal appeal, not her WIGI appeals. AID at 8. She acknowledged
that a total of 499.1 attorney hours was an inordinate amount of time for the
appellant’s counsel to spend on two WIGI appeals, but nonetheless she found
such time reasonable in light of what she described as the agency’s “scorched
earth litigation tactics.” AID at 10. In particular, she noted that the appellant’s
counsel had to respond to the agency’s frivolous motions and contend with the
agency’s resistance to responding to basic discovery. AID at 10. Having
determined which hours were reasonable, the administrative judge declined to
adjust the lodestar, again citing the agency’s actions as well as noting that the
appellant prevailed on both WIGI appeals and there was a finding of a prohibited
personnel practice in one WIGI appeal. AID at 14.
We agree with the agency that the administrative judge’s analysis did not
fully acknowledge the appellant’s lack of success on her removal appeal or
appropriately eliminate the fees related to the appellant’s unsuccessful removal
appeal. Rather, her analysis appears to have conflated the issues of whether the
hours spent were reasonable and whether an adjustment to the lodestar was
appropriate in light of the appellant’s level of success. AID at 8-14; see Driscoll,5
116 M.S.P.R. 662, ¶ 10 (stating that a reduction of the lodestar to account for the
party’s success on only some of her claims for relief is distinct from a finding
that hours devoted to unsuccessful claims or issues were not reasonably spent).
Nonetheless, we decline to remand the case to the administrative judge. The
record in this case is fully developed, and in the interest of the efficient use of
judicial resources, we modify the addendum initial decision as set forth below.
We modify the addendum initial decision to disallow 30 hours for time spent by
KCNF on the appellant’s removal appeal.
As stated, the administrative judge determined that all of the fees sought by
KCNF were reasonable and she declined to adjust the lodestar downward. AID
at 9-10. The record reflects that the agency argued that KCNF’s fees prior to
June 1, 2016, should have been disallowed because the appellant’s WIGI denial
appeals were not filed until June 2, 2016. 0329/0470 AFF, Tab 7 at 5-6. Such
fees were for work related to mediation, settlement, discovery, and responding to
an affirmative defenses order in the removal appeal. 0329/0470 AFF, Tab 1
at 14-24. In response, the appellant argued that the discovery was prepared in
connection with all three appeals and the affirmative defenses response was also
being prepared with the WIGI issues in mind. 0329/0470 AFF, Tab 10 at 5. The
appellant also submitted affidavits from a KCNF attorney indicating that,
whenever possible, the bills submitted were adjusted to reflect only the time spent
on work relevant to the 2013 and 2015 WIGI appeals. 0329/0470 AFF, Tab 14
at 13-14, Tab 17 at 9.
In allowing such fees, the administrative judge found that the appellant
presented persuasive evidence that the issue of the WIGI denials was raised
during the mediation process for which KCNF sought fees. AID at 9. However,
she did not address the agency’s argument that the remaining fees prior to June 1,
2016, should be excluded. We find that KCNF’s fees from January 11 to 13,
2016 (excluding .3 hours for attorney RRR on January 13, 2016) related to
discovery should have been disallowed. 0329/0470 AFF, Tab 1 at 17. Discovery6
during this time could have related only to the removal appeal because the WIGI
appeals had not yet been filed. As such, we disallow .3 hours for attorney RRR
(at an hourly rate of $602) and 6.9 hours for attorney AAH (at an hourly rate of
$334) for a total of $2,485.2.
Similarly, we disallow KCNF’s fees from December 28, 2015, to January 5,
2016 (excluding .1 and .5 hours for fees related to settlement by attorney RRR on
January 5, 2016). 0329/0470 AFF, Tab 1 at 15-16. The record reflects that such
fees were related to researching, drafting, and filing a response to the
administrative judge’s December 21, 2015 affirmative defenses order in the
removal appeal and participating in a status conference in the removal appeal. Id.
We are not persuaded by the appellant’s conclusory statement below that such
work was related to the WIGI appeals. 0329/0470 AFF, Tab 10 at 5. The charges
for drafting the response to the affirmative defenses order certainly relate solely
to the removal appeal. Additionally, to the extent the appellant was asserting that
research was done with the WIGI affirmative defenses in mind, the affirmative
defenses raised in the removal appeal were based on different facts than those
raised in the WIGI denials, which had not yet been filed. As such, we disallow
7 hours for attorney RRR (at an hourly rate of $602) and 15.8 hours for attorney
ALK (at an hourly rate of $334) for a total of $9,491.20. Thus, the lodestar for
KCNF is reduced to $66,992.40 ($78,968.80 - $11,976.40). Because the record
reflects that KCNF’s remaining charges were reduced to reflect only the portion
of time spent on the WIGI appeals, we find that no further reduction of these
charges is necessary. Accordingly, the addendum initial decision is modified and
the appellant is awarded $73,148 ($66,992.40 + $6,155.60 in fees related to the
fee petition) in attorney fees, plus $898.72 in costs, for a total award of
$74,046.72 to KCNF. 7
We exercise our equitable discretion and impose a 15 percent reduction in the
lodestar calculation for the Pines Law Firm based on the appellant’s
limited success.
Regarding the Pines Law Firm, the administrative judge disallowed
26 hours that were clearly severable and related solely to the appellant’s
unsuccessful removal appeal. AID at 8. However, the remaining charges were
taken in furtherance of all three actions, which were joined from September 16,
2016, to July 24, 2017. 0329/0470 AFF, Tab 1 at 67-82. Unlike KCNF, whose
work largely occurred prior to the joinder of the cases, the record does not reflect
that the bills submitted by the Pines Law Firm were reduced to reflect only the
portion of time spent on the successful WIGI appeals. We find that it is not
practicable to segregate from the remaining hours those hours related to the
appellant’s unsuccessful removal appeal. As a result, the lodestar figure fails to
account for the appellant’s limited success and a full award of attorney fees
would be unreasonably high. Thus, the Board has discretion to make an equitable
adjustment to the lodestar calculation. See Bywaters v. United States , 670 F.3d
1221, 1229 (Fed. Cir. 2012) (recognizing that the lodestar may be adjusted based
on the results obtained when it is not taken into account in calculating the
lodestar figure in the first instance); see also Guy v. Department of the Army ,
118 M.S.P.R. 45, ¶¶ 3, 21 (2012) (adjusting the lodestar calculation in an
individual right of action appeal when an appellant only successfully challenged
some of the personnel actions).
We find that a 15 percent reduction of the lodestar calculation is
appropriate and that such a reduction sufficiently accounts for the fact that the
appellant’s removal was sustained and she failed to prevail on any of her
affirmative defenses in that appeal. Therefore, we reduce the $103,005 lodestar
for the Pines Law Firm by $15,450.75. Accordingly, the addendum initial
decision is modified and the appellant is awarded $101,414.25 ($87,554.25 +8
$13,860 in fees related to the fee petition) in attorney fees, plus $8,047.68 in
costs, for a total award of $109,461.93 to the Pines Law Firm.
ORDER
We ORDER the agency to pay attorney fees in the amount of $74,046.72 to
Kalijarvi, Chuzi, Newman & Fitch, P.C., and $109,461.93 to the Law Office of
Eric Pines, PLLC. The agency must complete this action no later than 20 days
after the date of this decision. Title 5 of the United States Code, section 1204(a)
(2) (5 U.S.C. § 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorneys 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 and
the attorneys to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorneys, 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 or the attorneys
that it has fully carried out the Board’s Order, the appellant or the attorneys may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorneys believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorneys believes the agency has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with the agency. See 5 C.F.R. § 1201.182(a).
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of12
competent jurisdiction.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. 13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 14 | Duran_Theresa_M_DE-531D-16-0470-A-1_Final_Order_Final_Order.pdf | 2024-03-19 | THERESA M. DURAN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-531D-16-0329-I-, March 19, 2024 | DE-531D-16-0329-I- | NP |
2,030 | https://www.mspb.gov/decisions/nonprecedential/Duran_Theresa_M_DE-531D-16-0329-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA M. DURAN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBERS
DE-531D-16-0329-A-1
DE-531D-16-0470-A-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Jennifer A. Weger , Esquire, 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 addendum initial decision,
which awarded the appellant $201,989.40 in attorney fees and $8,946.40 in costs.
For the reasons discussed below, we GRANT the agency’s petition for review and
AFFIRM the initial decision AS MODIFIED, decreasing the amount of the
attorney fee award. Except as expressly MODIFIED by this Final Order, the
initial decision is the Board’s final 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).
BACKGROUND
On December 15, 2015, the appellant filed an appeal of her removal for
medical inability to perform and raised affirmative defenses of disability
discrimination (failure to accommodate), retaliation for prior equal employment
opportunity (EEO) activity, and whistleblower reprisal. Duran v. Department of
Justice, MSPB Docket No. DE-0752-16-0116-I-1/2. Subsequently, on June 2,
2016, the appellant filed an appeal of the denial of a within grade increase (WIGI)
in 2013 (Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-I-
1/2) and on September 7, 2016, an appeal of a constructive denial of a WIGI in
2015 (Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0470-I-
1/2). In both WIGI appeals, she raised affirmative defenses of EEO and
whistleblower reprisal. All three appeals were initially joined on September 16,
2016, for discovery and hearing, but joinder was terminated on July 24, 2017,
prior to the issuance of the initial decisions in each case.
In MSPB Docket No. DE-531D-16-0329-I-2, the administrative judge
reversed the agency’s reconsideration decision denying the appellant a WIGI in
2013 and found that the agency’s actions constituted reprisal for the appellant’s
protected EEO activity (filing EEO complaints and requesting reasonable
accommodations).2 In MSPB Docket No. DE-531D-16-0470-I-2, the
administrative judge reversed the agency’s constructive denial of the appellant’s
WIGI in 2015 but found that the appellant did not prove her affirmative defenses
of EEO or whistleblower reprisal. The initial decisions became the Board’s final
decisions when neither party filed a petition for review. In MSPB Docket
No. DE-0752-16-0116-I-2, the administrative judge affirmed the agency’s
removal and found that the appellant failed to prove any of her affirmative
defenses. On review, the Board affirmed the initial decision, as modified, still
2 The administrative judge found that the appellant failed to prove her affirmative
defense of whistleblower reprisal. Duran v. Department of Justice , MSPB Docket
No. DE-531D-16-0329-I-2, Appeal File, Tab 75 at 19-21.2
sustaining the removal and finding that the appellant failed to prove her
affirmative defenses.
On December 30, 2017, the appellant filed a motion for attorney fees and
costs in connection with the Board’s final orders reversing the agency’s WIGI
denials. Duran v. Department of Justice , MSPB Docket No. DE-531D-16-0329-
A-1, Attorney Fee File (0329 AFF), Tab 1; Duran v. Department of Justice ,
MSPB Docket No. DE-531D-16-0470-A-1, Attorney Fee File (0470 AFF), Tab 1.
In her motion, she sought $315,353.52 in attorney fees and costs incurred by the
two law firms that had represented her: the Law Offices of Eric L. Pines, PLLC
(Pines Law Firm), and Kalijarvi, Chuzi, Newman, & Fitch, P.C. (KCNF). Id.
The administrative judge issued an addendum initial decision awarding the
appellant attorney fees and costs in the amount of $210,935.80. 0329/0470 AFF,
Tab 21, Addendum Initial Decision (AID). In particular, she awarded $85,124.40
in attorney fees to KCNF and $116,865.00 in attorney fees to the Pines Law Firm.
AID at 16. She further ordered the agency to pay costs in the amount of $898.72
to KCNF and $8,047.68 to the Pines Law Firm. Id.
The agency has filed a petition for review arguing that the fees awarded are
excessive because the administrative judge failed to reduce the total amount to
account for the appellant’s limited success in prevailing in only two of her three
appeals. Petition for Review (PFR) File, Tab 1. The appellant has filed a
response in opposition to the petition for review, and the agency has filed a reply.
PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
To receive an award of attorney fees under 5 U.S.C. § 7701(g)(1), an
appellant must show the following: (1) she was the prevailing party; (2) she
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of attorney fees is warranted in the interest of justice; and (4) the amount3
of attorney fees claimed is reasonable.3 See Caros v. Department of Homeland
Security, 122 M.S.P.R. 231, ¶ 5 (2015). The agency has not challenged the
appellant’s prevailing party status, that she incurred attorney fees pursuant to an
existing attorney-client relationship, or that an award of attorney fees is
warranted. Nor does the agency challenge the costs awarded. Accordingly, we
limit our review of the addendum initial decision to whether the fees awarded are
reasonable.
In Hensley v. Eckerhart , 461 U.S. 424 (1983), the Supreme Court set forth
a scheme for determining a reasonable fee award in a case when, as in this case,
the prevailing party did not obtain all the relief requested. The most useful
starting point, the Court explained, is to take the hours reasonably spent on the
litigation multiplied by a reasonable hourly rate. Id. at 433; see Driscoll v. U.S.
Postal Service, 116 M.S.P.R. 662, ¶ 10 (2011). This is the “lodestar” that the
Board uses in determining the fee award. Lizut v. Department of the Navy ,
42 M.S.P.R. 3, 7-8 (1989). The initial calculation should exclude hours for which
the prevailing party failed to provide adequate documentation and hours that were
not reasonably expended. Hensley, 461 U.S. at 433-34.
In the second phase of the analysis, the lodestar may be adjusted upward or
downward based on other considerations, including the crucial factor of the
“results obtained.” Id. at 434. If the party seeking fees has achieved only
“partial or limited success,” an award based on the hours reasonably spent on the
litigation as a whole times an hourly rate may be an excessive amount, even when
3 Under 5 U.S.C. § 7701(g)(2), when the appellant is a prevailing party and the decision
is based on a finding of discrimination prohibited under 5 U.S.C. § 2302(b)(1), attorney
fees may be awarded in accordance with the standards prescribed under 42 U.S.C.
§ 2000e–5(k). The provision at 42 U.S.C. § 2000e–5(k) states that the court, “in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . as part of
the costs.” The Board has held that 5 U.S.C. § 7701(g)(2) is a broader standard than
5 U.S.C. § 7701(g)(1). See Chin v. Department of the Treasury , 55 M.S.P.R. 84, 86
(1992). Thus, because the appellant prevailed on her affirmative defense of reprisal, the
administrative judge properly analyzed whether any fees or costs not recoverable
pursuant to section 7701(g)(1) were recoverable pursuant to section 7701(g)(2). AID at
14-15.4
the claims were interrelated, nonfrivolous, and raised in good faith. Id. at 436.
In this scenario, the tribunal awarding fees has discretion to make an equitable
judgment as to what reduction is appropriate. Id. at 436-37. It may adjust the
lodestar downward by identifying specific hours that should be eliminated or, in
the alternative, by reducing the overall award to account for the limited degree of
success. Id.; Smit v. Department of the Treasury , 61 M.S.P.R. 612, 619 (1994).
The former method should be used in cases when it is practicable to segregate the
hours devoted to related but unsuccessful claims. See Boese v. Department of the
Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986); Smit, 61 M.S.P.R. at 619-20.
Here, the administrative judge found that the total fees sought by KCNF
were reasonable. AID at 9. Regarding the Pines Law Firm, the administrative
judge found that 26 hours were not reasonable because they were related to the
appellant’s removal appeal, not her WIGI appeals. AID at 8. She acknowledged
that a total of 499.1 attorney hours was an inordinate amount of time for the
appellant’s counsel to spend on two WIGI appeals, but nonetheless she found
such time reasonable in light of what she described as the agency’s “scorched
earth litigation tactics.” AID at 10. In particular, she noted that the appellant’s
counsel had to respond to the agency’s frivolous motions and contend with the
agency’s resistance to responding to basic discovery. AID at 10. Having
determined which hours were reasonable, the administrative judge declined to
adjust the lodestar, again citing the agency’s actions as well as noting that the
appellant prevailed on both WIGI appeals and there was a finding of a prohibited
personnel practice in one WIGI appeal. AID at 14.
We agree with the agency that the administrative judge’s analysis did not
fully acknowledge the appellant’s lack of success on her removal appeal or
appropriately eliminate the fees related to the appellant’s unsuccessful removal
appeal. Rather, her analysis appears to have conflated the issues of whether the
hours spent were reasonable and whether an adjustment to the lodestar was
appropriate in light of the appellant’s level of success. AID at 8-14; see Driscoll,5
116 M.S.P.R. 662, ¶ 10 (stating that a reduction of the lodestar to account for the
party’s success on only some of her claims for relief is distinct from a finding
that hours devoted to unsuccessful claims or issues were not reasonably spent).
Nonetheless, we decline to remand the case to the administrative judge. The
record in this case is fully developed, and in the interest of the efficient use of
judicial resources, we modify the addendum initial decision as set forth below.
We modify the addendum initial decision to disallow 30 hours for time spent by
KCNF on the appellant’s removal appeal.
As stated, the administrative judge determined that all of the fees sought by
KCNF were reasonable and she declined to adjust the lodestar downward. AID
at 9-10. The record reflects that the agency argued that KCNF’s fees prior to
June 1, 2016, should have been disallowed because the appellant’s WIGI denial
appeals were not filed until June 2, 2016. 0329/0470 AFF, Tab 7 at 5-6. Such
fees were for work related to mediation, settlement, discovery, and responding to
an affirmative defenses order in the removal appeal. 0329/0470 AFF, Tab 1
at 14-24. In response, the appellant argued that the discovery was prepared in
connection with all three appeals and the affirmative defenses response was also
being prepared with the WIGI issues in mind. 0329/0470 AFF, Tab 10 at 5. The
appellant also submitted affidavits from a KCNF attorney indicating that,
whenever possible, the bills submitted were adjusted to reflect only the time spent
on work relevant to the 2013 and 2015 WIGI appeals. 0329/0470 AFF, Tab 14
at 13-14, Tab 17 at 9.
In allowing such fees, the administrative judge found that the appellant
presented persuasive evidence that the issue of the WIGI denials was raised
during the mediation process for which KCNF sought fees. AID at 9. However,
she did not address the agency’s argument that the remaining fees prior to June 1,
2016, should be excluded. We find that KCNF’s fees from January 11 to 13,
2016 (excluding .3 hours for attorney RRR on January 13, 2016) related to
discovery should have been disallowed. 0329/0470 AFF, Tab 1 at 17. Discovery6
during this time could have related only to the removal appeal because the WIGI
appeals had not yet been filed. As such, we disallow .3 hours for attorney RRR
(at an hourly rate of $602) and 6.9 hours for attorney AAH (at an hourly rate of
$334) for a total of $2,485.2.
Similarly, we disallow KCNF’s fees from December 28, 2015, to January 5,
2016 (excluding .1 and .5 hours for fees related to settlement by attorney RRR on
January 5, 2016). 0329/0470 AFF, Tab 1 at 15-16. The record reflects that such
fees were related to researching, drafting, and filing a response to the
administrative judge’s December 21, 2015 affirmative defenses order in the
removal appeal and participating in a status conference in the removal appeal. Id.
We are not persuaded by the appellant’s conclusory statement below that such
work was related to the WIGI appeals. 0329/0470 AFF, Tab 10 at 5. The charges
for drafting the response to the affirmative defenses order certainly relate solely
to the removal appeal. Additionally, to the extent the appellant was asserting that
research was done with the WIGI affirmative defenses in mind, the affirmative
defenses raised in the removal appeal were based on different facts than those
raised in the WIGI denials, which had not yet been filed. As such, we disallow
7 hours for attorney RRR (at an hourly rate of $602) and 15.8 hours for attorney
ALK (at an hourly rate of $334) for a total of $9,491.20. Thus, the lodestar for
KCNF is reduced to $66,992.40 ($78,968.80 - $11,976.40). Because the record
reflects that KCNF’s remaining charges were reduced to reflect only the portion
of time spent on the WIGI appeals, we find that no further reduction of these
charges is necessary. Accordingly, the addendum initial decision is modified and
the appellant is awarded $73,148 ($66,992.40 + $6,155.60 in fees related to the
fee petition) in attorney fees, plus $898.72 in costs, for a total award of
$74,046.72 to KCNF. 7
We exercise our equitable discretion and impose a 15 percent reduction in the
lodestar calculation for the Pines Law Firm based on the appellant’s
limited success.
Regarding the Pines Law Firm, the administrative judge disallowed
26 hours that were clearly severable and related solely to the appellant’s
unsuccessful removal appeal. AID at 8. However, the remaining charges were
taken in furtherance of all three actions, which were joined from September 16,
2016, to July 24, 2017. 0329/0470 AFF, Tab 1 at 67-82. Unlike KCNF, whose
work largely occurred prior to the joinder of the cases, the record does not reflect
that the bills submitted by the Pines Law Firm were reduced to reflect only the
portion of time spent on the successful WIGI appeals. We find that it is not
practicable to segregate from the remaining hours those hours related to the
appellant’s unsuccessful removal appeal. As a result, the lodestar figure fails to
account for the appellant’s limited success and a full award of attorney fees
would be unreasonably high. Thus, the Board has discretion to make an equitable
adjustment to the lodestar calculation. See Bywaters v. United States , 670 F.3d
1221, 1229 (Fed. Cir. 2012) (recognizing that the lodestar may be adjusted based
on the results obtained when it is not taken into account in calculating the
lodestar figure in the first instance); see also Guy v. Department of the Army ,
118 M.S.P.R. 45, ¶¶ 3, 21 (2012) (adjusting the lodestar calculation in an
individual right of action appeal when an appellant only successfully challenged
some of the personnel actions).
We find that a 15 percent reduction of the lodestar calculation is
appropriate and that such a reduction sufficiently accounts for the fact that the
appellant’s removal was sustained and she failed to prevail on any of her
affirmative defenses in that appeal. Therefore, we reduce the $103,005 lodestar
for the Pines Law Firm by $15,450.75. Accordingly, the addendum initial
decision is modified and the appellant is awarded $101,414.25 ($87,554.25 +8
$13,860 in fees related to the fee petition) in attorney fees, plus $8,047.68 in
costs, for a total award of $109,461.93 to the Pines Law Firm.
ORDER
We ORDER the agency to pay attorney fees in the amount of $74,046.72 to
Kalijarvi, Chuzi, Newman & Fitch, P.C., and $109,461.93 to the Law Office of
Eric Pines, PLLC. The agency must complete this action no later than 20 days
after the date of this decision. Title 5 of the United States Code, section 1204(a)
(2) (5 U.S.C. § 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorneys 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 and
the attorneys to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorneys, 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 or the attorneys
that it has fully carried out the Board’s Order, the appellant or the attorneys may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorneys believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorneys believes the agency has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with the agency. See 5 C.F.R. § 1201.182(a).
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of12
competent jurisdiction.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. 13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 14 | Duran_Theresa_M_DE-531D-16-0329-A-1__Final_Order.pdf | 2024-03-19 | THERESA M. DURAN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-531D-16-0329-I-, March 19, 2024 | DE-531D-16-0329-I- | NP |
2,031 | https://www.mspb.gov/decisions/nonprecedential/Toro_David_M_DC-0731-18-0824-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. TORO,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0731-18-0824-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David M. Toro , Vienna, Virginia, pro se.
Angela Kreitzer , 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. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant applied for the position of Security Specialist with the
agency’s Federal Bureau of Investigation (FBI). Initial Appeal File (IAF), Tab 4
at 11. After reviewing the appellant’s background information based on the
criteria of 5 C.F.R. § 731.202, the FBI’s Security Division determined that the
appellant was not suitable for FBI employment and recommended that
consideration of his application be discontinued. Id. at 11-14. The agency then
sent the appellant a letter, informing him that it had determined that he did not
meet the suitability standards for FBI employment. IAF, Tab 1 at 7.
The appellant filed a Board appeal and requested a hearing. Id. at 1-3, 5.
The agency moved to dismiss the appeal for lack of jurisdiction because the
position at issue was in the excepted service, the appellant was not an “employee”
for purposes of 5 U.S.C. chapter 75, and, in any event, his nonselection did not
constitute a suitability action even though it was based on suitability criteria.
IAF, Tab 4 at 5-8. The administrative judge issued a jurisdictional order,
notifying the appellant of the standard for establishing jurisdiction over a
suitability appeal and directing him to file evidence and argument on the issue.
IAF, Tab 6. After the parties responded, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction without a hearing. IAF,2
Tab 9, Initial Decision (ID). He found that the appellant failed to show that the
agency subjected him to a suitability action, or to any other action appealable to
the Board. ID at 3-5.
The appellant has filed a petition for review, disputing the agency’s
assessment of his suitability, and arguing that he went all the way through the
selection process and received a contingent offer of employment before the
agency made its suitability determination. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
ANALYSIS
Under 5 C.F.R. § 731.501(a), when an agency takes a suitability action
against a person, that person may appeal the action to the Board. However,
suitability actions consist only of the actions listed under 5 C.F.R. § 731.203(a),
i.e., cancellation of eligibility, removal, cancellation of reinstatement eligibility,
and debarment. See 5 C.F.R. § 731.101 (defining “suitability action”). A denial
of appointment or non-selection for a position is not a suitability action. Sapla v.
Department of the Navy , 118 M.S.P.R. 551, ¶ 12 (2012); 5 C.F.R. § 731.203(b).
In this case, we agree with the administrative judge that the appellant has
not made a nonfrivolous allegation that the agency took any of the four types of
suitability actions against him listed in 5 C.F.R. § 731.203(a). ID at 4-5.
Rather, the agency simply declined to select him for the Security Specialist
position for which he applied. IAF, Tab 1 at 7, Tab 4 at 11-14. This does not
constitute a suitability action even though the nonselection was based on
suitability criteria and the appellant had already received a contingent offer of
employment. 5 C.F.R. § 731.203(b); see Testart v. Department of the Navy ,
42 M.S.P.R. 21, 23 (1989) (finding that the Board lacks jurisdiction over the
withdrawal of an offer of appointment prior to entrance on duty).
Furthermore, even if the appellant’s nonselection could be characterized as
a suitability action, the Board would still lack jurisdiction over this appeal under3
5 C.F.R. § 731.501 because the subject position was in the excepted service.
See Linares-Rosado v. U.S. Postal Service , 112 M.S.P.R. 599, ¶ 14 (2009);
see also 28 U.S.C. § 536 (“All positions in the Federal Bureau of Investigation
are excepted from the competitive service, and the incumbents of such positions
occupy positions in the excepted service.”). Finally, there is no indication that
the Board might have jurisdiction over this appeal under 5 U.S.C. chapter 75. Cf.
Cruz-Packer v. Department of Homeland Security , 102 M.S.P.R. 64, ¶¶ 7-11
(2006).
To the extent that the appellant is challenging the merits of the agency’s
suitability determination, this matter has no bearing on the jurisdictional issue.
PFR File, Tab 1 at 4-5; see Farris v. U.S. Postal Service , 101 M.S.P.R. 316, ¶ 7
(2006). To the extent that the appellant is dissatisfied with the details that the
agency provided him regarding the reasons for its suitability determination,
PFR File, Tab 1 at 4-5, it may be possible for him to obtain additional
information by filing a Freedom of Information Act or Privacy Act request
pursuant to the instructions in the agency’s August 18, 2018 letter, IAF, Tab 1
at 7.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 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.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 | Toro_David_M_DC-0731-18-0824-I-1 Final Order.pdf | 2024-03-19 | DAVID M. TORO v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0731-18-0824-I-1, March 19, 2024 | DC-0731-18-0824-I-1 | NP |
2,032 | https://www.mspb.gov/decisions/nonprecedential/Bello_JonathanDA-0752-22-0264-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN BELLO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-22-0264-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan Bello , Harlingen, Texas, pro se.
David Stewart-Owen , and Mary E. Garza , Edinburg, 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 removal for charges of lack of candor and failure to follow policy.
On petition for review, the appellant generally argues that the administrative
judge erred in sustaining his removal because the agency failed to establish a
nexus between his misconduct and the efficiency of the service. 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 File, Tab 1 at 4-6. He also argues that the agency improperly removed
him because its charges of misconduct were based on the policies of the Federal
Law Enforcement Training Center, an agency with which he was not employed.
Id. at 4. However, because the appellant did not raise this argument below, and it
is not based on previously unavailable evidence, we decline to consider it. See
Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Generally, we
grant petitions such as 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Bello_JonathanDA-0752-22-0264-I-1 Final Order.pdf | 2024-03-19 | JONATHAN BELLO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-22-0264-I-1, March 19, 2024 | DA-0752-22-0264-I-1 | NP |
2,033 | https://www.mspb.gov/decisions/nonprecedential/Masters_DavidDC-1221-17-0646-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID MASTERS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-17-0646-W-1
DATE: March 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Adam A. Carter , Esquire, Washington, D.C., for the appellant.
Aditi Shah , Esquire, Michelle L. Perry , Esquire, and Letitia Yates , 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 in this
individual right of action (IRA), which denied his request for corrective action,
finding that he failed to make a protected disclosure. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision, and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is an Engineering Advisor with the Science and Technology
Directorate (S&T) within the Homeland Security Advance Research Projects
Agency (HSARPA) of the Department of Homeland Security (DHS). Initial
Appeal File (IAF), Tab 12 at 17-18. S&T provides “research, development, test,
and evaluation” services to DHS. Id. at 47. From 2011 to approximately 2013,
the appellant was involved in S&T’s development for DHS’s Customs and Border
Protection (CBP) of a modeling tool to test how well various technologies would
detect underground tunnels. IAF, Tab 7 at 44-45, Tab 23, Hearing Compact Disc
One (HCD1), Track 4 at 5:30 (testimony of the appellant). S&T received
approximately $8 million in Federal funds to develop this modeling tool, which
the appellant testified was successfully completed. HCD1, Track 4 at 6:16
(testimony of the appellant).
Subsequently, in approximately August 2015, DHS “obligated” $1.6
million to conduct the “analysis of alternatives” (AoA) at issue in this appeal.
HCD1, Track 2 at 1:08:38 (testimony of a Border Patrol Supervisory Program
Manager).2 The AoA team consisted of two employees from CBP and two from
S&T, but did not include the appellant. Id. at 1:11:56 (testimony of the Border
Patrol Supervisory Program Manager). An AoA is an analytical comparison of
alternative solutions for specific capability gaps and needs. IAF, Tab 18 at 44.
An AoA explores the alternatives with the goal of identifying the most promising
approach for the user. Id. Here, the AoA was being conducted to outline
alternative proposals for building current and future systems to detect and locate
clandestine tunnels along the southern United States border. IAF, Tab 1 at 42,
Tab 18 at 162. DHS contracted with the Homeland Security Studies and Analysis
2 The U.S. Border Patrol is a component of CBP. HCD1, Track 2 at 1:11:44 (testimony
of the Border Patrol Supervisory Program Manager).2
Institute (HSSAI) to conduct the AoA, ultimately paying HSSAI around
$1 million for its work. HCD1, Track 2 at 1:07:57 (testimony of the Border
Patrol Supervisory Program Manager). As the expert in the field of tunnel
detection technology,3 the appellant was brought on to the project to facilitate
moving things forward, including being invited to a “working group meeting” on
August 22, 2016, between S&T and CBP.4 IAF, Tab 12 at 19-20, 25.
According to the appellant, during the meeting, which became loud and
confrontational, he expressed concerns with the performance of the AoA,
including HSSAI, CBP, and S&T’s mismanagement of the project, excessive cost,
and failure to follow DHS directives pertaining to AoAs. IAF, Tab 1 at 20 -21,
Tab 12 at 25, 29, Tab 17 at 21. Specifically, he alleges that he stated that the
AoA was not using the modeling tool S&T previously developed for testing
tunnel technologies and that HSSAI did not provide an adequate analysis on how
it selected various alternatives. IAF, Tab 1 at 20, Tab 12 at 25 -26. Seemingly
unbeknownst to the appellant, most everyone else in the meeting was already
aware of HSSAI’s failures and that the AoA was not going well, and intended the
meeting to serve as a catalyst to get things back on track. IAF, Tab 24, Hearing
Compact Disc Two (HCD2), Track 1 at 6:59:50 (testimony of a Deputy Director
within HSARPA).
According to a Chief Systems Engineer with S&T, who was present at the
meeting, the appellant continually talked over and interrupted others, became
defensive, and raised his voice. IAF, Tab 12 at 29, Tab 18 at 115-16. The day
after the meeting, the appellant met with the S&T Director and an HSARPA
Deputy Director at the agency to discuss the incident. IAF, Tab 12 at 29.
3 An S&T Chief Systems Engineer testified that it was “obvious” that the appellant was
the technical expert in S&T on the technology at issue. HCD1, Track 1 at 1:00:40
(testimony of a Chief Systems Engineer).
4 The parties dispute the extent of the appellant’s involvement with the AoA in question
prior to the August 22, 2016 meeting. PFR File, Tab 1 at 14-15, Tab 3 at 18; IAF,
Tab 7 at 39, Tab 18 at 104-07. 3
According to the Director, the appellant again became “rude towards [them], also,
arguing and talking over [them].” Id. The appellant claims that he essentially
repeated his disclosures at this meeting. Id. at 26.
On October 12, 2016, the S&T Director proposed to suspend the appellant
for 3 days for “inappropriate behavior” at the August 22 and 23, 2016 meetings.
IAF, Tab 12 at 28-29. On November 1, 2016, the agency sustained the 3-day
suspension. Id. at 18-22. The appellant filed a whistleblower retaliation
complaint with the Office of Special Counsel (OSC). IAF, Tab 7 at 121-34. OSC
subsequently informed the appellant that it was closing his complaint and that he
could file an IRA appeal with the Board. Id. at 119. The appellant filed this
appeal. IAF, Tab 1. In response to a jurisdictional order, he alleged that at the
August 22, 2016 meeting he raised the concern that the AoA was not transparent.
IAF, Tab 7 at 16. He cited Appendix G of the DHS Acquisition
Instruction/Guidebook, which sets forth the agency’s rules and guidance
involving the performance of AoAs. IAF, Tab 7 at 16, 80, 82-84. In relevant
part, the Instruction/Guidebook states that analyses conducted during the AoA
“must be completed at a sufficient level of transparency and traceability to clearly
show the effectiveness, suitability, and financial justification for each alternative
considered.” Id. at 16, 83.
Following the appellant’s and agency’s responses to the jurisdictional
order, the administrative judge found that the appellant had established
jurisdiction by exhausting his administrative remedies before OSC. IAF, Tab 10
at 1. The administrative judge also found that the appellant made a nonfrivolous
allegation of a protected disclosure of “concerns about mismanagement of the
[AoA]” at the August 22 and 23, 2016 meetings. Id. at 1-2. In a summary of the
telephonic prehearing conference, the administrative judge set forth the
appellant’s burden of proof, and, over the agency’s objection, declined to impose
any higher burden on the appellant regardless of whether his disclosures were
made in the normal course of his duties. IAF, Tab 20 at 2 n.1. After holding a4
hearing, he issued an initial decision denying the appellant’s request for
corrective action, finding that he failed to make a protected disclosure. IAF, Tabs
23-24, Tab 25, Initial Decision (ID) at 1, 34-35. In doing so, he identified the
appellant’s disclosures as alleging gross mismanagement when he was not
selected to be a member of the AoA team and a gross waste of funds because the
AoA team was repeating the same activities the appellant had already performed
from 2011 to 2013 to create his modeling tool. ID at 31.
In reaching his conclusion, the administrative judge suggested that the
appellant’s statements at the August 22, 2016 meeting were not protected because
several other persons in attendance at the meeting, as well as members of S&T
management, were already aware of the information the appellant was allegedly
disclosing. Id. The administrative judge additionally discussed the agency’s
rationale in disciplining the appellant, crediting testimony that his behavior was
rude, argumentative, and unprofessional. ID at 32-33. The administrative judge
further concluded that, rather than gross mismanagement or a gross waste of
funds, the actions of HSSAI, S&T, and CBP with which the appellant took
offense were legitimate management decisions. ID at 33. Finally, the
administrative judge found that the appellant did not identify any management
action or inaction that created a substantial risk of significant impact on the
agency’s ability to accomplish its mission. ID at 34. The administrative judge
did not address the appellant’s claim that his disclosure evidenced a violation of a
law, rule, or regulation, other than to note that the test for whether an appellant
has a reasonable belief that a disclosure evidences a violation of an agency rule or
regulation “is an objective one.” ID at 30.
The appellant has filed a petition for review challenging the initial decision
and reasserting that his communications in the August 22 and 23, 2016 meetings
were protected disclosures that were contributing factors in the agency’s decision
to suspend him for 3 days. Petition for Review (PFR) File, Tab 1 at 4. The
appellant predominantly challenges the determination that the disclosure5
identified by the administrative judge did not reveal what the appellant
reasonably believed was gross mismanagement or a gross waste of funds. Id.
at 14-18. In particular, he argues that his disclosure of the failure to use him on
the AoA and repetition of S&T’s prior work were part of a larger disclosure that
the AoA was “irredeemable” and “needed to be redone.” Id. at 14-15. In support
of his claim that he had a reasonable belief of gross mismanagement or a gross
waste of funds, he asserts that the AoA was restarted, re -performed, and, under
his leadership, became the “gold standard” of AoAs. Id. at 17. He disputes that
this was merely a policy disagreement that was debatable, as he was able to
convince the Border Patrol Supervisory Program Manager that “there was no
technical merit in maintaining the current path.” Id. He further claims that, due
to the temporal proximity of his disclosures and the personnel action, his
disclosures were a contributing factor in his 3-day suspension. Id. at 19-20.
Finally, based on the inconsistencies in the notice of proposed suspension with
the testimony in the hearing, which according to him demonstrate that the
justifications were “verifiably false,” he claims that the agency cannot meet its
burden of proving by clear and convincing evidence that it would have
disciplined him absent his disclosures. Id. at 20-21.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the administrative judge’s jurisdictional finding to properly identify
the two disclosures that the appellant exhausted with OSC.
The administrative judge did not properly identify the disclosures
that the appellant exhausted.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8), 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.6
§ 2302(a). 5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).5 The administrative judge addressed two purported
disclosures. ID at 31. We agree that the appellant exhausted one of these
disclosures. We modify the administrative judge’s remaining findings on
exhaustion.
Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board, in
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, recently
clarified the substantive requirements of exhaustion. The requirements are met
when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Id., ¶ 10. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. Id. However, an appellant may give a
more detailed account of his whistleblowing activities before the Board than he
did to OSC. Id. (citing Briley v. National Archives & Records Administration ,
236 F.3d 1373, 1378 (Fed. Cir. 2001)). 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 his written responses
to OSC referencing the amended allegations. Id., ¶ 11; Mason, 116 M.S.P.R.135,
¶ 8. Alternatively, exhaustion may be proven through other sufficiently reliable
evidence, such as an affidavit or declaration attesting that the appellant raised
with OSC the substance of the facts in his appeal. Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11.
The appellant provided his OSC complaint with attachments and OSC’s
letter closing out his complaint. IAF, Tab 1 at 13-96. In these documents, he
specifically alleged that on August 22 and 23, 2016, he identified the following
5 In addition to protected disclosures, certain protected activities may serve as the basis
for an IRA appeal. Salerno, 123 M.S.P.R. 230, ¶ 5. The appellant has not alleged that
he engaged in a protected activity. 7
deficiencies in the AoA: (1) the failure to employ the modeling tool to test tunnel
detection technology that S&T had developed between 2011 and 2013, and
(2) “lapses in technical analysis.” Id. at 20-21. The appellant also identified
these two disclosures in his response to a jurisdictional order requiring that he list
his disclosures and activities. IAF, Tab 4 at 7, Tab 7 at 7-8, 44-45. However, the
administrative judge addressed only the first disclosure in the initial decision, and
not the second. ID at 31; Mastrullo v. Department of Labor , 123 M.S.P.R. 110,
¶ 14 (2015) (remanding an appeal because the administrative judge failed to
identify and analyze each of the appellant’s alleged disclosures from his OSC
complaint and failed to articulate the relevant standard of proof). The appellant
alludes to his second disclosure on review. PFR File, Tab 1 at 8-9. Therefore,
we modify the initial decision to find that the appellant exhausted this disclosure
and we address it further below.
The administrative judge analyzed the merits of a purported third
disclosure: that the agency should have included the appellant on the AoA as the
Technical Advisor. ID at 31. However, this was in error because the appellant
did not identify this disclosure in his OSC complaint or in his response to the
administrative judge’s jurisdictional order. ID at 31; IAF, Tab 1 at 13-96, Tab 4
at 7, Tab 7 at 4-23. Thus, we vacate the administrative judge’s findings as to this
third unexhausted disclosure because the Board lacks jurisdiction to address it.
We do not address the appellant’s arguments on review that this disclosure was
protected. PFR File, Tab 1 at 14.
Finally, the appellant has suggested on review that he more broadly
disclosed that the AoA was “irredeemable” and “needed to be redone.” PFR File,
Tab 1 at 14-15. To the extent the appellant is alleging that he separately
disclosed wrongdoing in connection with this claim, the Board lacks jurisdiction
over it. The appellant has not shown that he raised this claim with OSC. IAF,
Tab 1 at 20-21, Tab 7 at 8.8
The appellant nonfrivolously alleged that his disclosures of the
failure to use prior tunnel detection technology and the lack of
analysis in the AoA were protected and contributing factors in his
3-day suspension.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Skarada,
2022 MSPB 17, ¶ 12. The test to determine whether a putative whistleblower has
a reasonable belief in the disclosure is an objective one: whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions of the agency
evidenced a violation of law, rule, or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.; see 5 U.S.C. § 2302(b)(8). The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Salerno,
123 M.S.P.R. 230, ¶ 6.
First, the appellant claimed that the AoA was grossly mismanaged and a
gross waste of funds because it did not utilize the existing modeling tools
specifically designed to aid in this process. IAF, Tab 1 at 20. The administrative
judge generally found that the Board has jurisdiction over the appellant’s
disclosures, without specifically identifying them. IAF, Tab 10; ID at 2-3.
Nonetheless, the parties do not challenge the Board’s jurisdiction over this
disclosure.
We modify the initial decision to specifically find that the Board has
jurisdiction over this disclosure. See MacDonald v. Department of Justice ,
105 M.S.P.R. 83, ¶ 7 (2007) (finding that before the Board may proceed to the
merits of an IRA appeal, it must first address the matter of jurisdiction). The
reasonable person in the appellant’s position could believe that the agency’s
expenditure of what was likely a large amount of money on a project without9
using relevant existing technology was a gross waste of funds. A gross waste of
funds is a more than debatable expenditure that is significantly out of proportion
with the benefits reasonably expected to accrue to the Government. MaGowan v.
Environment Protection Agency , 119 M.S.P.R. 9, ¶ 7 (2012). In particular, the
appellant alleged that the AoA cost the agency $2 million. IAF, Tab 1 at 20,
Tab 12 at 25-26. This belief was objectively reasonable given that $1.6 million
was, in fact, allocated for the project. HCD1, Track 2 at 1:08:38 (testimony of a
Customs and Border Patrol Supervisory Program Manager).
Further, the individuals who proposed and finalized the appellant’s
suspension were aware of his disclosures at the time that they issued the action,
which was within the 3 months following the disclosures. IAF, Tab 12 at 18-21,
25, 28-29. Thus, the appellant established that the disclosure was a contributing
factor in the suspension under the knowledge/timing test. See Salerno,
123 M.S.P.R. 230, ¶ 14 (explaining that an appellant may establish contributing
factor by showing that individuals with knowledge of his disclosures took a
personnel action within 1 to 2 years of the disclosures).
As to the second disclosure, the appellant alleged that he pointed out the
lack of analysis in the AoA. IAF, Tab 12 at 19-20, 25. According to the
appellant, he specifically disclosed the failure of the AoA to employ methods
such as “physics, numerical methods, modeling performance, laboratory testing,
and field testing.” IAF, Tab 1 at 20. We find that the Board has jurisdiction over
this disclosure, which the administrative judge did not address.
There is no dispute that the AoA lacked analysis. IAF, Tab 18 at 12-13,
47-49, 51, 59-61, 65 -66, 73-85, 87, 99-100. The appellant alleged in conjunction
with the lack of analysis that the AoA team had not followed “the DHS AoA
Directive.” IAF, Tab 12 at 25. This appears to be a reference to Appendix G of
the DHS’s Acquisition Instructions/Guidebook, which provides guidance on how
to conduct an AoA and Alternative Analysis (AA) (Oct. 1, 2011). IAF, Tab 7
at 80. Appendix G provides that: “Analyses conducted during the AoA/AA (e.g.,10
trade studies, modeling, simulation, and experimentation) must be completed at a
sufficient level of transparency and traceability to clearly show the effectiveness,
suitability, and financial justification for each alternative considered.” Id. at 83.
We find that the reasonable person in the appellant’s position could have believed
that the lack of analysis in the AoA constituted a violation of the Appendix G.
Further, given the close proximity in time between when the appellant disclosed
the violation of Appendix G and his 3-day suspension, we conclude that he also
nonfrivolously alleged contributing factor as to this disclosure under the
knowledge/timing test. IAF, Tab 7 at 83, Tab 12 at 18-21, 25, 28-29. Thus, the
appellant met his jurisdictional burden as to this disclosure.
We remand the appeal for a determination of whether the appellant proved that he
reasonably believed that the AoA’s lack of analysis violated Appendix G of the
Acquisition Instructions/Guidebook or evidenced other agency wrongdoing.
After an appellant establishes jurisdiction over an IRA appeal, he must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he (1) made a protected disclosure, and (2) that the
protected disclosure was a contributing factor in a personnel action taken against
him.6 5 U.S.C. § 1221(e)(1); Mattil v. Department of State , 118 M.S.P.R. 662,
¶ 11 (2012). We agree with the administrative judge that the appellant did not
meet his burden to prove that he reasonably believed that the failure to use S&T’s
existing tunnel model disclosed Government wrongdoing. ID at 31-32. We
modify those findings as discussed below. We remand the appellant’s disclosure
that the AoA lacked analysis to the administrative judge for further adjudication.
6 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).11
We agree with the administrative judge that the appellant was not
required to meet the “extra proof” requirement set forth in 5 U.S.C.
§ 2302(f)(2), but we modify the initial decision to clarify the basis
for that finding.
Before addressing the disclosures, we must first address one of the
administrative judge’s findings concerning the nature of the appellant’s burden.
In a telephonic conference summary order that set forth the parties’ respective
burdens, the administrative judge acknowledged the agency’s argument that,
pursuant to 5 U.S.C. § 2302(f)(2), disclosures made during the normal course of
an employee’s duties were subjected to a higher burden, but concluded that
neither the Board’s commentary in Benton-Flores v. Department of Defense ,
121 M.S.P.R. 428, ¶ 15 (2014), nor the language of 5 U.S.C. § 2302(f)(2) created
any burden greater than that which already exists. IAF, Tab 20 at 2 n.1. In the
initial decision, the administrative judge noted that the appellant’s disclosures
appeared to be related to his duties as an Engineer in the S&T, but determined
that the WPEA removed the principle that a disclosure is not protected if made
within the scope of one’s duties. ID at 4.
As the Board recently held in Salazar v. Department of Veterans Affairs ,
2022 MPSB 42, ¶¶ 10-14, 22, the effect of an amendment to 5 U.S.C. § 2302(f)(2)
in the National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA),
signed into law on December 12, 2017, is that disclosures made in the normal
course of duties of an employee whose principal job function is not to regularly
investigate and disclose wrongdoing fall under the generally applicable
provisions in 5 U.S.C. § 2302(b)(8), and are not subject to the requirement of
proving actual reprisal in 5 U.S.C. § 2302(f)(2). In Salazar, 2022 MSPB 42,
¶¶ 15-21, the Board held that the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)
(2) clarified the prior version of that statute enacted in the WPEA, and so the
amendment applied retroactively to appeals pending at the time the statute was
enacted. 12
The administrative judge did not have the benefit of our decision in Salazar
at the time he issued the initial decision. The appellant’s position description
identifies his principal job functions as an Engineering Advisor as including the
following: providing expert advice and counsel on projects within the S&T’s
portfolio; interpreting the impact of scientific and technical advances on broad
DHS requirements; conceiving of, proposing for review, evaluating, and
recommending the integration of others’ proposals for basic and applied research
efforts; serving on panels and committees and providing technical presentations,
briefings, and papers; and advising S&T division leadership on best practices or
approaches for addressing areas of concerns, among other duties. IAF, Tab 12
at 46-49. Because there is no indication that the appellant’s principal job
function at the time of his disclosure was to regularly investigate and disclose
wrongdoing, we conclude that the administrative judge correctly declined to
apply the higher burden of proof set forth in 5 U.S.C. § 2302(f)(2) to determine
whether the appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8).
ID at 4. Because we have found that section 2302(f)(2) is not applicable, we
vacate the administrative judge’s finding that the appellant’s disclosures appeared
to be related to his job duties. ID at 4.
We agree, as modified, with the administrative judge’s finding that
the appellant’s disclosure that the agency failed to use S&T’s
modeling tool was not protected.
For months leading up to the August 22, 2016 meeting, the appellant was
made aware that numerous entities involved in the AoA process were attempting
to use his modeling tool. IAF, Tab 18 at 133-37. During this time, he was
informed that there were problems with the tool and he agreed to conduct training
sessions with various parties to help them better use the tool. Id. As such, the
appellant could not have reasonably believed that the failure to use the tool
evidenced Government wrongdoing. 13
To the extent that the administrative judge suggested that the disclosure
was not protected because it concerned legitimate managerial decisions or
disclosed matters that were already known, we modify those findings to reflect
our reasoning as stated here. ID at 31-32. A disclosure is not excluded from
protection merely because it revealed information that had been previously
disclosed. 5 U.S.C. § 2302(f)(1)(B); Day v. Department of Homeland Security ,
119 M.S.P.R. 589, ¶ 18 (2013). Thus, the administrative judge’s reasoning to the
contrary is mistaken. ID at 32. There is an exclusion, however, for disclosures
that express general philosophical or policy disagreements with agency decisions
or actions, unless the disclosures separately constitute a protected disclosure of
one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8). 5 U.S.C.
§ 2302(a)(2)(D); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8
(2015). It appears that the administrative judge may have attempted to invoke
this exception when discussing the legitimate managerial nature of the agency’s
decisions. ID at 31-32. However, as discussed above, there was an attempt to
use the existing tunnel modeling tool, and the appellant was aware of that
attempt. Therefore, the alleged failure to use the tool, if any, was not a matter of
philosophical or policy debate. Rather it was a practical decision based on the
difficulty of using the tool.
We remand for further consideration of the appellant’s disclosure
that the AoA lacked analysis.
The administrative judge did not address the appellant’s disclosure of a
“lack of analysis in the AoA’s technical approach and the AoA team not
following the DHS AoA directive.” IAF, Tab 12 at 25. According to the
appellant, these errors in the AoA performance occurred due to gross
mismanagement and resulted in a gross waste of funds. IAF, Tab 1 at 15, 20.
However, at the heart of that disclosure is the appellant’s insistence that the AoA
was not performed in accordance with the requisite rules. IAF, Tab 1 at 15, 33,
Tab 7 at 16. 14
There is no de minimis exception for a disclosure involving a violation of a
law, rule, or regulation. Fisher v. Environmental Protection Agency ,
108 M.S.P.R. 296, ¶ 9 (2008). Moreover, although the WPEA does not define a
“rule,” the Board has suggested that it includes established or authoritative
standards for conduct or behavior. Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 25 (2013). The DHS Acquisition Instruction/Guidebook sets
forth the agency-wide rules for the completion of an AoA. IAF, Tab 18 at 40, 42.
It provides a “systematic analytical” and comprehensive approach to the
completion of AoAs. IAF, Tab 7 at 82-84. Appendix G sets forth the steps of the
process, the roles of the various parties involved, and what is required after the
completion of the AoA. Id. at 88-99. The Appendix routinely refers to
procedures that must be done for the proper completion of an AoA, including, as
cited by the appellant, that it “ must be completed at a sufficient level of
transparency and traceability to clearly show the effectiveness, suitability, and
financial justification for each alternative considered.” Id. at 82-84 (emphasis
added). Accordingly, we agree with the appellant that the failure to comply with
the AoA would be a violation of an agency rule.
However, we cannot decide the reasonableness of the appellant’s belief in
the first instance because the credibility of witnesses testifying at hearing,
including the appellant, is at issue. Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 20 (2010). Deciding issues of credibility is normally the
province of the trier of fact. Id. Therefore, we must remand this appeal for the
administrative judge to determine whether the appellant proved the
reasonableness of his belief that the agency committed wrongdoing. On remand,
the administrative judge should also consider whether the appellant’s disclosure
fell within any other category of wrongdoing under 5 U.S.C. § 2302(b)(8); see El
v. Department of Commerce , 123 M.S.P.R. 76, ¶ 11 (2015) (explaining that an
administrative judge properly attempted to read an appellant’s claimed
disclosures in the broadest possible way because an appellant is not required to15
correctly label a category of wrongdoing), aff’d per curiam , 663 F. App’x 921
(Fed. Cir. 2016).
The appellant’s disclosure of a lack of analysis may be protected
regardless of whether it concerned the conduct of HSSAI, a
Government contractor.
Here, the actual lack of analysis was at least partially attributable to the
conduct of HSSAI, with which the agency contracted to complete the AoA. E.g.,
IAF, Tab 17 at 129, Tab 18 at 71-85. The Board has held that allegations against
a Government contractor may constitute protected disclosures when the agency
was in a position to influence or exercise oversight over the organization’s
performance of those functions such that the Government’s interests and good
name are implicated in the alleged wrongdoing at issue. Johnson v. Department
of Health & Human Services , 93 M.S.P.R. 38, ¶ 10 (2002); see Covington v.
Department of the Interior , 2023 MSPB 5, ¶¶ 15-19 (finding that the WPEA did
not change the longstanding principle that a disclosure of wrongdoing committed
by a non-Federal Government entity may be protected only when the Federal
Government’s interests and good name are implicated in the alleged wrongdoing).
Here, the parties agree that DHS contracted with HSSAI to conduct the AoA.
IAF, Tab 17 at 5, Tab 18 at 10. HSSAI was conducting the AoA to assist in the
development of tunnel detection programs, which is a function related to the
overall responsibilities of both S&T and CBP. HSSAI was working directly and
frequently with S&T and CBP, and those DHS components identified problems
with HSSAI’s work on the AoA and actively sought to resolve them. IAF, Tab 17
at 94, 99, 133, Tab 18 at 71. S&T and CBP were ultimately in a position to steer
the work of HSSAI, including the decision to pause its work on the AoA. IAF,
Tab 17 at 94, 99, 133; PFR File, Tab 1 at 17-18. Accordingly, CBP and S&T
were in a position to influence and exercise oversight over HSSAI’s performance
of this function. Thus, the Government’s interest of properly and accurately
detecting tunnels is implicated in the alleged wrongdoing. Additionally, the16
Government’s good name, i.e., the reputation of S&T to provide a quality product
to its clients, is also implicated in the alleged wrongdoing. IAF, Tab 18 at 71.
Accordingly, the appellant’s disclosures may be protected even though they at
least partially concern the conduct of HSSAI.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
The administrative judge should provide the parties with an opportunity to submit
additional evidence and argument on the issues discussed above and, if necessary,
hold a supplemental hearing to further develop the record.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Masters_DavidDC-1221-17-0646-W-1 Remand Order.pdf | 2024-03-19 | DAVID MASTERS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-17-0646-W-1, March 19, 2024 | DC-1221-17-0646-W-1 | NP |
2,034 | https://www.mspb.gov/decisions/nonprecedential/Collins_JefferyDC-0752-18-0015-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY COLLINS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0015-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
upraja Murali , Washington, D.C., for the agency.
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant
BEFORE
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 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
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).
2
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The following facts are undisputed. The appellant was an AD-09
Supervisory Police Officer for the agency’s Pentagon Force Protection Agency
(PFPA). Initial Appeal File (IAF), Tab 3 at 34. On March 21, 2017, the agency
proposed the appellant’s removal based on one charge of conduct unbecoming,
supported by five specifications. Id. at 61-64. The essence of the charge was that
the appellant refused to follow orders from two of his superiors to provide
coverage for another officer during that officer’s break. Id. at 62. The agency
alleged that the appellant responded to the repeated orders with repeated
profanity, and with a final refusal, hung up the telephone on his superiors. Id.
After the appellant responded to the notice, the deciding official issued a
decision sustaining the charge but mitigating the proposed penalty to a reduction
in grade and pay and reassignment to a non-supervisory position. Id. at 35-39,
44-50, 52-53. The appellant filed a Board appeal under 5 U.S.C. § 7513(d),
contesting the merits of the agency’s action, including the charge and the penalty.
IAF, Tab 11, Tab 12 at 2. The appellant waived his right to a hearing. IAF,
Tab 12 at 2. After the close of the record conference, in his closing brief, the
appellant for the first time raised an affirmative defense alleging a violation of
due process. IAF, Tab 16 at 5, 9-13. He argued that the deciding official
3
violated his due process rights by considering two penalty factors not mentioned
in the notice of proposed removal. Id.
After the close of the record, the administrative judge issued an initial
decision affirming the reduction in pay and grade. IAF, Tab 17, Initial Decision
(ID). She found that the agency proved its charge and all of the underlying
specifications and that the chosen penalty was reasonable. ID at 6-9, 11-12.
Regarding the appellant’s due process claim, the administrative judge found that
it was untimely raised and would therefore not be considered. ID at 9-10. She
noted, however, that even if she were to consider the due process claim, she
would find no due process violation. ID at 10 n.3.
The appellant has filed a petition for review, challenging only the
administrative judge’s due process analysis. Petition for Review (PFR) File,
Tab 3. The agency has filed a response. PFR File, Tab 5.
ANALYSIS
Under 5 C.F.R. § 1201.24(b), an appellant may raise a claim or defense at
any time before the end of the conference held to define the issues in the case, but
may not raise a new claim or defense after that time, except for good cause
shown. In this appeal, that conference occurred on August 21, 2018, but the
appellant did not raise his due process claim until September 10, 2018. IAF,
Tabs 12, 16. We therefore agree with the administrative judge that the
appellant’s claim was untimely raised under the regulations. ID at 9-10; see
Nugent v. U.S. Postal Service, 59 M.S.P.R. 444, 447-48 (1993) (declining to
consider an affirmative defense and claimed mitigating penalty factors raised
outside the time limit prescribed in 5 C.F.R. § 1201.24(b)).
On petition for review, the appellant argues that the Board may consider an
untimely due process claim or raise the issue sua sponte. PFR File, Tab 3 at 7.
However, this authority is discretionary, not mandatory, and will normally be
exercised only to prevent a manifest injustice. See Holton v. Department of the
4
Navy, 123 M.S.P.R. 688, ¶ 28 (2016); Powers v. Department of the Treasury ,
86 M.S.P.R. 256, ¶ 10 n.3 (2000). Considering that the appellant’s due process
claim was untimely under the Board’s regulations, the appellant did not raise a
timely objection to the prehearing conference summary, and the appellant was
represented by an attorney throughout these proceedings, we find that the
administrative judge did not abuse her discretion in declining to consider it. ID
at 9-10; IAF, Tab 12 at 1-2; 5 C.F.R. § 1201.24(b); see 5 C.F.R. § 1201.115(c).
We also agree with the administrative judge’s alternative finding that the
appellant has not demonstrated a due process violation. ID at 10 n.3. On petition
for review, the appellant reiterates that the deciding official considered penalty
factors not mentioned in the notice of proposed removal, namely his alleged
dereliction of supervisory authority and his alleged violation of PFPA General
Order 1000.03. PFR File, Tab 3 at 7-8. He argues that this information was new,
he had no chance to respond to it, and it placed undue pressure on the deciding
official, thereby constituting a due process violation under the standard set forth
in Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011) and
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1377 (Fed. Cir.
1999). Id. at 8-11.
However, based on the record evidence, we find that the deciding official
considered these matters merely in assessing the appellant’s arguments in
response to the proposed removal. Specifically, the appellant argued in his
response that the reason he refused to relieve the subordinate officer in question
was that he had an 8:00 a.m. appointment that morning, which he had previously
been ordered not to miss, and that the subordinate officer had declined to take his
break until 7:50 a.m. IAF, Tab 3 at 46, 48. In response to this argument, the
deciding official noted that the appellant could have exercised his supervisory
authority and ordered the subordinate officer to take his break earlier, or he could
have followed the directives in PFPA General Order 1000.03 for dealing with
conflicting orders, but he failed to do either. Id. at 37. We agree with the
5
administrative judge that the deciding official’s statements address information
that the appellant himself presented in his response to the notice of proposed
removal. ID at 10 n.3. A deciding official does not violate an employee’s due
process rights when he considers and rejects the arguments that the employee
raises in response to a proposed adverse action. Grimes v. Department of Justice ,
122 M.S.P.R. 36, ¶ 13 (2014); Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686, ¶¶ 10-11 (2014).
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.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Collins_JefferyDC-0752-18-0015-I-1_Final_Order.pdf | 2024-03-19 | JEFFERY COLLINS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0015-I-1, March 19, 2024 | DC-0752-18-0015-I-1 | NP |
2,035 | https://www.mspb.gov/decisions/nonprecedential/Charles_Chris_E_AT-3443-22-0564-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRIS E. CHARLES,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-3443-22-0564-I-1
DATE: March 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Chris E. Charles , Miramar, Florida, pro se.
Bobbie Garrison , Doral, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review. We AFFIRM
the initial decision’s finding that the Board lacks jurisdiction over this matter as
an employment practices appeal. However, we REMAND the case to the regional
office for further adjudication of the appellant’s claims pursuant to the Uniformed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Services Employment and Reemployment Rights Act of 1994 (USERRA),
codified at 38 U.S.C. §§ 4301-4333, and the Veterans Employment Opportunities
Act of 1998 (VEOA).
DISCUSSION OF ARGUMENTS ON REVIEW
On August 13, 2022, the appellant filed a Board appeal concerning his
nonselection for a Logistics Management Specialist position. Initial Appeal File
(IAF), Tab 1 at 1-5. He requested a hearing. Id. at 2. The appellant alleged that,
after his nonselection, he called the hiring manager, who told him that he was
surprised that the appellant did not get an interview for the position because his
name was on the “short list of qualified candidates.” Id. at 4. The appellant
stated that he was challenging his nonselection as an improper employment
practice pursuant to 5 C.F.R. § 300.104. Id. at 4. He also alleged that he is
entitled to veterans’ preference and attached a letter from the Department of
Veterans Affairs confirming his entitlement as well as other documents related to
his military service and job experience. Id. at 4-18. The administrative judge
issued an acknowledgment order, wherein she informed the appellant that the
Board may lack jurisdiction over his nonselection appeal, explained the
circumstances under which the Board may have jurisdiction over a nonselection
appeal, and afforded him the opportunity to submit argument and evidence in
support thereof. IAF, Tab 2 at 2-5. The appellant submitted an untimely
response, wherein he submitted several documents pertaining to his nonselection,
including a position description, communications with the agency related to the
nonselection, and phone records. IAF, Tab 6. He also reiterated his request for a
hearing. IAF, Tab 5 at 4. The agency also filed a response requesting that the
administrative judge dismiss the appeal for lack of jurisdiction. IAF, Tab 4.
Although the appellant’s response to the acknowledgment order was
untimely, the administrative judge considered it and, without holding a hearing,
she issued an initial decision dismissing the appeal for lack of jurisdiction.2
IAF, Tab 8, Initial Decision (ID) at 2-3. She found that the appellant failed to
nonfrivolously allege that the Board had jurisdiction over his appeal as an
employment practice appeal pursuant to 5 C.F.R. § 300.101, and that he identified
no other law, rule, or regulation that he believed the agency to have violated. Id.
The appellant has filed a petition for review and the agency has filed a response.
Petition for Review (PFR) File, Tabs 1, 3.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks jurisdiction to
consider an appeal regarding a nonselection for a position. Nakshin v.
Department of Justice , 98 M.S.P.R. 524, ¶ 9 (2005). Claims of unlawful conduct
in the selection process ordinarily must be brought before other forums. Prewitt
v. Merit Systems Protection Board , 133 F.3d 885, 886 (Fed. Cir. 1998).
We affirm the administrative judge’s finding that the appellant failed to
nonfrivolously allege that an employment practice applied to him by the Office of
Personnel Management (OPM) violated a basic requirement in 5 C.F.R. § 300.103
for the reasons set forth in the initial decision.2 ID at 2-3. The appellant has not
specifically challenged this finding on review. PFR File, Tab 1 at 22.
However, we must remand this appeal for another reason. Although the
appellant did not specifically invoke USERRA or VEOA by name, he stated in his
initial appeal, which he resubmitted with his petition for review, that he is
entitled to veterans’ preference and he submitted documents concerning
his veterans’ preference and military service. IAF, Tab 1 at 1, 4-18; PFR File,
Tab 1 at 7-22. The administrative judge’s acknowledgment order did not provide
2 In the initial decision, the administrative judge discussed the agency’s evidence and
argument concerning the selection process. ID at 2. Although the Board may not deny
jurisdiction by crediting the agency’s interpretation of the evidence, Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994 ), we find that the administrative judge did
not rely on the agency’s interpretation of the evidence, or otherwise weigh evidence, in
finding that the appellant failed to nonfrivolously allege that this appeal involved an
employment practice administered by OPM.3
explicit notice on how the appellant could establish jurisdiction over a USERRA
or VEOA appeal, and the issue is not addressed in the initial decision.
IAF, Tab 2; ID at 1-3. VEOA claims must be liberally construed. See Loggins v.
U.S. Postal Service , 112 M.S.P.R. 471, ¶ 14 (2009). Similarly, the Board has
adopted, and the U.S. Court of Appeals for the Federal Circuit has endorsed,
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)). Under
the circumstances, we find that remand is appropriate so that the administrative
judge may provide the appellant with notice of the VEOA and USERRA burdens
and methods of proof and an opportunity to respond thereto.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Charles_Chris_E_AT-3443-22-0564-I-1 Remand Order.pdf | 2024-03-19 | CHRIS E. CHARLES v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-3443-22-0564-I-1, March 19, 2024 | AT-3443-22-0564-I-1 | NP |
2,036 | https://www.mspb.gov/decisions/nonprecedential/Hornsby_Revonnia_F_DC-0752-17-0284-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REVONNIA F. HORNSBY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-17-0284-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Revonnia F. Hornsby , Woodbridge, Virginia, pro se.
J. Michael Sawyers , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The appellant filed an appeal alleging that she was subjected to a reduction
in pay while employed with the Defense Threat Reduction Agency (DTRA). She
alleged that she received only half of the annual pay increases that other Federal
employees received from 2014 through 2017, after her management -directed
conversion from a position under the General Schedule (GS) to the National
Security Personnel System (NSPS) and back to the GS system with pay retention.
Initial Appeal File (IAF), Tab 1 at 3, 5.2 The agency filed a motion to dismiss the
appeal for lack of jurisdiction, arguing that the Board has no jurisdiction over an
alleged improper calculation of a pay raise and that the appellant had failed to
allege an appealable reduction in pay even assuming her allegations were true.
IAF, Tab 4 at 5-6. The administrative judge issued a show cause order explaining
what was required to nonfrivolously allege a reduction in pay or grade claim and
directed the appellant to file evidence and argument to prove that her appeal was
within the Board’s jurisdiction. IAF, Tab 5. In response, the appellant restated
her allegation that the agency paid her half of the annual pay raises received by
other Federal employees, which negatively affected her base pay and caused her
financial harm. IAF, Tab 6. In an initial decision dated March 24, 2017, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege an appealable reduction in pay or grade.
IAF, Tab 7, Initial Decision (ID) at 1, 5. The administrative judge informed the
parties that the initial decision would become final if neither party filed a petition
for review by April 28, 2017. ID at 5.
On September 20, 2018, more than 1 year and 4 months after the finality
date of the initial decision, the appellant filed a petition for review reasserting her
claim that DTRA gave her incorrect pay raises. Petition for Review (PFR) File,
Tab 1 at 3, 5. She asserts that she is now employed by the Marine Corps
2 The appellant stated on the appeal form that her grade or pay band was “GS and
GG-13” at the time of the action she was appealing. IAF, Tab 1 at 1.
3
Intelligence Activity (MCIA), and, in discussing her personnel records with a
human resources representative there, she became aware of new information
demonstrating that the respondent agency provided her and the administrative
judge with incorrect information about her pay system that led to the erroneous
dismissal of her appeal.3 Id. at 8. She also indicates that she received back pay in
August 2018 purportedly to correct an error in her 2017 pay, but she claims that
the amount of the back pay she received was incorrect. Id. at 9.
The appellant has filed a motion asking the Board to waive the time limit
for filing her petition because the agency “provided and applied the wrong
information from the beginning, and when [they] did realize and agree that they
shorted/reduced [her] pay, [they] took five months to provide [her] back pay.”
PFR File, Tab 3 at 5. The appellant submits copies of several documents that
were already part of the record in this matter. Id. at 6-29. She submits email
chains dated December 2015 and March 2018, id. at 30-35, as well as
documentation regarding her pay correction in August 2018, id. at 36-37; PFR
File, Tab 1 at 7, 10. The agency has filed a response arguing, as relevant here,
that the Board should dismiss the petition for review as untimely filed because the
appellant has failed to show good cause for her delayed filing. PFR File, Tab 4
at 5. For the reasons stated below, we dismiss her petition for review as untimely
filed without good cause shown for the filing delay.
3 The appellant alleges that, months after she left DTRA, she learned from MCIA that
the Office of the Secretary of Defense of Intelligence provides an annual “pay guidance
for [General Grade] employees to [Defense Civilian Intelligence Personnel System]
Human Resource offices.” PFR File, Tab 1 at 8. She alleges that she became aware
that the agency representative provided the Board with information on appeal that
applied to GS employees; however, she was a General Grade employee, not a GS
employee. Id. She also alleges that the agency wrongfully applied the GS pay guidance
to her, “which reduced [her] pay to 50% of the general pay increase for January 2017.”
Id.
4
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, a petition for review must be filed within 35 days after the
issuance of an initial decision, or, if the petitioner shows that she received the
initial decision more than 5 days after the date of the issuance, within 30 days
after the date she received the initial decision. 5 C.F.R. § 1201.114(e). Here,
there is no dispute that the appellant timely received the initial decision, and she
filed her petition for review more than 16 months after the time limit. The Board
will waive the time limit for filing a petition for review only upon a showing of
good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good
cause for an untimely filing, the appellant must show that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
See Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). In
determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether 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 file a petition in a timely manner. See
Wyeroski v. Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d,
253 F. App’x 950 (Fed. Cir. 2007).
We find that the appellant has failed to establish good cause for her
untimely petition for review. First, the appellant knew or should have known that
her position fell under the General Grade (GG) salary table, and not the GS salary
table. Indeed, she included the GG designation on her initial appeal form and in
her response on the jurisdictional issue. IAF, Tab 1 at 1, Tab 6. Thus, we find
that exercise of due diligence would have enabled her to have informed the
administrative judge or filed a timely petition for review on the issue that the
agency had provided the wrong salary table.
5
Second, the appellant offers no explanation for her delay in filing her
petition for review more than 6 months after she allegedly discovered the new
information. PFR File, Tab 3 at 4. Although the appellant’s pro se status is a
factor weighing in her favor, it is insufficient to excuse her untimely filing. See
Allen v. Office of Personnel Management , 97 M.S.P.R. 665, ¶ 8 (2004). We find
that the more than 6-month delay between the appellant’s apparent discovery of
the new evidence in March 2018 and the filing of the petition for review in
September 2018 demonstrated a lack of diligence. See Dow v. Department of
Homeland Security , 109 M.S.P.R. 633, ¶ 8 (2008) (finding a more than 1-month
delay in filing a petition for review significant); cf. Armstrong v. Department of
the Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (ordering the Board to waive
the time limit for filing a petition for review if the delay between the appellant’s
discovery of the alleged new evidence of fraud and his filing of his petition did
not indicate a lack of diligence). The appellant submits no evidence or argument
showing the existence of circumstances beyond her control or of unavoidable
casualty or misfortune that might have caused an inability to file a petition
promptly after her apparent discovery of new evidence. See Wyeroski,
106 M.S.P.R. 7, ¶ 7. We therefore find that the appellant has failed to
demonstrate good cause to justify waiving the filing deadline in this case.
When a petitioner delays before filing a petition for review, justice may
require waiving the timeliness requirement when the new evidence is likely to
change the result originally reached. See Armstrong, 591 F.3d at 1362-63; De Le
Gal v. Department of Justice, 79 M.S.P.R. 396, 399 (1998) (holding that the
discovery of new evidence may establish good cause for the untimely filing of a
petition for review if the appellant shows that it was not readily available before
the record closed below and that it is of sufficient weight to warrant an outcome
different from that of the initial decision), aff’d, 194 F.3d 1336 (Fed. Cir. 1999)
(Table). Here, we find that the appellant’s new evidence is not likely to change
the administrative judge’s dismissal of the case for lack of jurisdiction.
6
The right to appeal reductions in pay has been narrowly construed and
requires the appellant to show a demonstrable loss, such as an actual reduction in
pay, in order to establish jurisdiction. See Chaney v. Veterans Administration ,
906 F.2d 697, 698 (Fed. Cir. 1990) (stating that an appealable reduction in pay
occurs only when there is an ascertainable lowering of an employee’s pay at the
time of the action). Pay-setting errors generally are not appealable to the Board,
absent a reduction in grade or pay. See Simmons v. Department of Housing &
Urban Development , 120 M.S.P.R. 489, ¶ 5 (2004); Goettmann v. Department of
the Air Force, 10 M.S.P.R. 95, 96-97 (1982) (finding no jurisdiction over the
appellants’ claims that they were promoted without required pay increases
because there was no reduction from the amount they were paid prior to the
promotions). The appellant has acknowledged that her pay regularly increased
and she does not allege that she was entitled to a higher grade upon her
conversion from NSPS to a GS or a GG position with pay retention. IAF, Tab 1
at 5; PFR File, Tab 3 at 4; ID at 3-4. see Chaney, 906 F.2d at 698 (finding that an
appellant with grade and pay retention, whose pay had regularly increased, had
failed to nonfrivolously allege an appealable reduction in pay based on her
allegations that her pay raises were calculated incorrectly).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the Board’s lack of jurisdiction over this 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).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Hornsby_Revonnia_F_DC-0752-17-0284-I-1 Final Order.pdf | 2024-03-19 | REVONNIA F. HORNSBY v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-17-0284-I-1, March 19, 2024 | DC-0752-17-0284-I-1 | NP |
2,037 | https://www.mspb.gov/decisions/nonprecedential/Messal_PamelaDE-0752-20-0137-I-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-I-1
DATE: March 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.
Stephanie Rapp-Tully , Esquire, Washington, D.C., for the appellant.
Julie Nelson , Esquire, Golden, Colorado, for the agency.
Rayann Brunner , Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
incorporate the proper standards for the appellant’s claims of discrimination and
reprisal for equal employment opportunity (EEO) activity, and to supplement the
whistleblower reprisal analysis, we AFFIRM the initial decision.
The appellant most recently held the position of Supervisory Forestry
Technician. Initial Appeal File (IAF), Tab 10 at 19. In this fire management
position, she supervised approximately 20 individuals that made up a “Hotshot
Crew.” IAF, Tab 11 at 22.
In November 2019, the agency proposed the appellant’s removal based
upon five charges, i.e., Charges A-E. IAF, Tab 11 at 4-17. The appellant
presented a written response, IAF, Tab 17 at 5-15, and an oral response, IAF, Tab
10 at 30-45. In December 2019, the deciding official sustained all the charges
and the proposed penalty. Id. at 20-29.
The appellant timely filed the instant appeal to challenge her removal.
IAF, Tab 1. The administrative judge developed the record and held a 4-day
hearing. E.g., IAF, Tabs 46, 51, 56, 59. She then issued an initial decision in
March 2022, affirming the appellant’s removal. IAF, Tab 70, Initial Decision
(ID).
For Charge A, absence without leave (AWOL), the administrative judge
found that the agency proved all its specifications. This included specifications
1-10, which concerned absences between March 4-15, 2019, ID at 7-13, as well as
specifications 11-12, which concerned absences on October 23-24, 2019, ID at
13-19. Regarding these latter specifications, the administrative judge further
found that this portion of the agency’s AWOL charge merged with the entirety of
Charge D, failure to follow leave procedures, which concerned the same dates.
ID at 13-14.
For Charge B, conduct unbecoming a supervisor, the administrative judge
found that the agency proved each of its three specifications. ID at 19-23.
Broadly speaking, each alleged a particular instance of the appellant changing the
working conditions of the same subordinate for the worse without a legitimate
reason for doing so. IAF, Tab 11 at 5. After the agency selected the subordinate
for promotion over the appellant’s objection, she is alleged to have needlessly
taken the subordinate’s second monitor, removed his gear from a cabinet he had
long used, and instructed him to move his workspace out of an office and into a
hall. Id. at 5, 14.
For Charge C, failure to follow supervisory instructions, the administrative
judge found that the agency proved specifications 1-9 and 11-13, ID at 23-32, but
not specification 10, ID at 30. Of those sustained, specification 9 concerned an
instruction to attend a meeting, while all others concerned separate instructions
about submitting or correcting the appellant’s time and attendance reports.
IAF, Tab 11 at 5-7.
For Charge E, failure to follow agency policy, the administrative judge
found that the agency failed to meet its burden. ID at 32-33. This charge
concerned an allegation that the appellant recorded conversations with coworkers
without permission to do so. IAF, Tab 11 at 7.
The administrative judge next considered but rejected the appellant’s
various affirmative defenses. This included claims of a due process violation or
harmful error, ID at 33-35, disability discrimination based on a failure to
accommodate, ID at 35-38, disability discrimination based on disparate treatment,
ID at 38-39, sex discrimination, ID at 40-41, reprisal for filing EEO complaints
and Occupational Safety & Health Administration (OSHA) complaints,
ID at 41-42, and reprisal for whistleblowing, ID at 42-46. Finally, the
administrative judge found that the agency met its burden of proving the requisite
nexus and reasonableness of its penalty. ID at 46-50.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. First, she argues that the administrative judge erred by not
sanctioning the agency for disclosing certain information to witnesses before the
hearing. Id. at 4, 12-14. Next, the appellant disputes the charges. Id. at 14-22.
She then reasserts claims of a due process violation or harmful error, id. at 22-24,
disability discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for
filing EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing
disclosures or activities, id. at 29-30. Lastly, the appellant challenges the
reasonableness of her removal as the penalty. Id. at 30-33. The agency has filed a
response to the agency’s petition. PFR File, Tab 4.
The administrative judge did not abuse her discretion in denying the appellant’s
motion for sanctions or err in analyzing the testimony giving rise to the motion
for sanctions.
It is undisputed that the agency provided several witnesses with access to
various pleadings before they appeared to testify at the hearing that was to occur
over video conference. IAF, Tab 68 at 1; Hearing Transcript, Day 1 (HT1)
at 8-28. This fact was revealed at the start of the hearing. E.g., HT1 at 8-12.
The administrative judge acknowledged that this could have prejudiced the
witnesses, and she indicated that she would take the matter into account as she
weighed the probative value of their testimony. HT1 at 12-15.
The appellant moved to sanction the agency and exclude the testimony of
these witnesses based on the agency’s disclosure of such documents to the
agency’s witnesses. HT1 at 29-30; IAF, Tab 61. The administrative judge denied
the motion. IAF, Tab 68 at 1-2. She described conducting an exhaustive review
of the record and testimony of the witnesses at issue and found no credible
evidence that the witnesses were influenced by their improper access to portions
of the record. Id.
On review, the appellant argues that the administrative judge erred in
denying her motion for sanctions. PFR File, Tab 1 at 4, 12-13. Alternatively, the
appellant argues that the administrative judge failed to properly account for the
witnesses’ access to pleadings when analyzing the credibility of their testimony.
Id. at 13-14. We are not persuaded.
Absent an abuse of discretion, the Board will not reverse an administrative
judge’s determination regarding sanctions. Lee v. Department of Veterans
Affairs, 2022 MSPB 11, ¶ 9. In this instance, the administrative judge recognized
the agency’s actions, acknowledged that providing the pleadings to the witnesses
might bias their testimony, allowed both parties to develop the issue, and
considered the matter to determine the degree of prejudice. The administrative
judge acted appropriately in recognizing that the agency’s actions were
potentially problematic, and permitted the appellant’s counsel to explore the issue
through cross-examination of each witness. HT1 at 17. We find no abuse of
discretion in her resulting denial of the appellant’s motion for sanctions. E.g.,
HT1 at 8-9, 14.
Turning to the administrative judge’s credibility findings, we also find no
error. The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has sufficiently sound reasons for doing so.
Karnes v. Department of Justice , 2023 MSPB 12, ¶ 13. The appellant suggests
that we should overturn the administrative judge’s credibility findings because
they did not explicitly discuss the fact that certain witnesses had access to the
agency’s pleadings. PFR File, Tab 1 at 13-14. While the administrative judge
may not have explicitly discussed that fact in her credibility findings, she did
discuss it in her post-hearing Motion for Sanctions and Motion to Strike
Testimony ruling. As mentioned above, she found that the access by four of the
witnesses to some of the pleadings and the appellant’s deposition did not
influence witness testimony. IAF, Tab 68 at 1-2. Moreover, the administrative
judge made credibility determinations that were at least partially based upon
witness demeanor. E.g., ID at 6, 48. Broadly speaking, she found that the
agency’s witnesses provided direct testimony that was consistent with evidence of
record while the appellant provided “extremely evasive” testimony that was
inconsistent with the record and not believable. Id. We discern no basis to
conclude otherwise.
The appellant has not shown that the administrative judge erred in her analysis of
the charges.
On review, the appellant continues to dispute at least some of the charges
and specifications that the administrative judge sustained. PFR File, Tab 1 at
14-22. We will address each in turn.
Charge A, AWOL, and Charge D, Failure to Follow Leave
Procedures2
As further detailed in the initial decision, the period leading up to the
appellant’s first period of AWOL, from March 4-15, 2019, was one in which a
subordinate filed a harassment claim against the appellant and the appellant
complained that she had been subject to a hostile work environment, resulting in a
supervisor filing a claim on the appellant’s behalf. ID at 7. Citing the complaint
against the appellant, the agency temporarily reassigned her as it investigated.
ID at 8. In the period that followed, the appellant requested administrative leave,
2 As previously noted, the administrative judge merged Charge D with
specifications 11-12 of Charge A, and we agree with her having done so.
which the agency denied. Id. Rather than appearing and working in her
temporary assignment, the appellant used other leave for many months. Id.
In February 2019, the appellant submitted another request for annual leave
for March 4-16, 2019, which her supervisor denied, noting that the appellant had
been absent since October 2018, and indicating that there was work that needed to
be done. IAF, Tab 11 at 36. The appellant then submitted a request for accrued
or advanced sick leave for March 4-26, 2019. Id. at 42. Within the
accompanying comments section, the appellant remarked as follows: “Personal
[r]easons. Request related to workplace sexual harassment & continued
harassment & relation relating to such.” Id. She attached a note from a nurse
practitioner that simply stated that the appellant would be absent throughout the
period “due to illness.” Id. at 43. The agency denied this leave request, noting
that the appellant did not have any sick leave remaining, and warning that she
would be AWOL if she did not return to work. Id. at 46. Nevertheless, the
appellant did not return to work. On March 11, 2019, the appellant emailed the
agency, suggesting that the denial of her leave requests amounted to harassment
or reprisal, stating that she had an otherwise unidentified “family emergency,”
and stating that she was also “ill.” Id. at 48. Then, on March 17, 2019, she
emailed the agency, stating that she was still “ill,” and that she was “looking into
FMLA.” Id. at 51.
For specifications 1-10 of the AWOL charge, concerning March 4-15,
2019, the administrative judge found that the agency met its burden. ID at 7-13.
Among other things, she noted that the record contained a request for FMLA
leave and associated documentation for some subsequent periods, but not the
March 4-15 AWOL days. ID at 11-13.
On review, the appellant references that FMLA documentation, dated
April 29, 2019, and suggests that it should cover the March 4-15 AWOL period.
PFR File, Tab 1 at 16-17 (referencing IAF, Tab 11 at 113-16). The appellant is
effectively arguing that the agency should have retroactively granted her FMLA
leave even though she never requested FMLA leave for the relevant period.
We disagree and find that the agency was under no such obligation. The Office
of Personnel Management’s implementing regulations provide that an employee
may not retroactively invoke FMLA leave, absent an exception pertaining to
medical inability that does not apply here. 5 C.F.R. § 630.1203(b).
Turning to specifications 11-12 of the AWOL charge, which concerned
October 23-24, 2019, the administrative judge also found that the agency met its
burden. ID at 13-19. As further detailed in the initial decision, these were dates
the appellant failed to appear for work after her supervisor had denied her request
to telework so that she could work on her EEO matters from home and had
scheduled an in-person meeting with the appellant. ID at 15-18. The appellant
submitted a doctor’s note at some point after the fact, indicating that she should
be excused from work. IAF, Tab 37 at 12-13.
On review, the appellant argues that she was entitled to FMLA leave or
leave without pay (LWOP) for the October 23-24 dates in question. PFR File,
Tab 1 at 21-22. The administrative judge found that the appellant did not request
leave at the time, ID at 17, and the appellant has not directed us to any evidence
to the contrary. The appellant suggests that the agency should have nevertheless
assumed that her absence on October 23-24 was related to approved FMLA leave
from months earlier. Id. at 21. Alternatively, the appellant argues that the
agency was required to grant her LWOP. Id. at 21-22. We disagree.
Leading up to the dates in question, the appellant made no mention of a
medical need for leave. She instead asked to work on her EEO matters from
home, and then accused her supervisor of abuse when the supervisor indicated
that the appellant needed to come to the office. E.g., IAF, Tab 12 at 204-06.
On the morning of October 23, the appellant sent her supervisor three emails in
which she again requested telework to pursue her EEO matters, and again accused
her supervisor of harassment when the supervisor once again indicated that she
expected the appellant in the office. Id. at 213, 215, 218, 221, 223. In an
afternoon email, her fourth of the day to her supervisor, the appellant stated that
she was ill and going to the doctor due to the supervisor’s abuse. Id. at 223.
The appellant separately sent an email to other officials indicating that she was at
her local police station to file a report of threats or abuse by her supervisor.
Id. at 221, 229. She did not request leave in any of these emails, at which point
she was already AWOL. We found nothing showing that the appellant indicated
that she was entitled to FMLA leave later that day or the next when she was also
AWOL. In fact, it is not even apparent that the appellant had FMLA leave
remaining by the time of these absences. Compare IAF, Tab 11 at 119 (approving
the appellant’s request for FMLA leave for the period between March 18 and
June 16, 2019), with 5 C.F.R. § 630.1203 (describing an employee’s entitlement
to 12 weeks of FMLA leave during any 12-month period). Accordingly, we do
not find that the agency was obligated to retroactively place her in an FMLA
leave status, without any associated request by the appellant.
Regarding the appellant’s alternative argument, about LWOP, the Board
will consider whether an agency’s denial of LWOP, a category of leave which is
discretionary, was reasonable in some circumstances involving medical excuses.
Sambrano v. Department of Defense , 116 M.S.P.R. 449, ¶ 4 (2011).
Here, though, the appellant did not request LWOP for October 23-24, 2019.
Even if she had, we would find the agency’s denial of LWOP reasonable, given
the appellant’s many months of prior absences and the well-documented
circumstances surrounding her October 23-24 absence.
Charge B, conduct unbecoming a supervisor
To recall, each specification of the conduct unbecoming a supervisor
charge alleged a particular instance of the appellant changing the working
conditions of the same subordinate for the worse, without a legitimate reason for
doing so. IAF, Tab 11 at 5. The agency alleged that she removed a second
monitor the subordinate had been using, which was the private property of
another employee, only to place it in her own office unused, she instructed the
subordinate to remove his gear from a cabinet he had personally recovered from a
dumpster and used for years, and she directed the subordinate to vacate a shared
office and move his workspace into a hallway. Id.
On review, the appellant argues that these allegations were false or that her
conduct was not unbecoming. PFR File, Tab 1 at 17-19. To do so, she presents
several brief arguments. For example, the appellant reasserts her own testimony
and she challenges written statements by other witnesses because they signed
their statements without also initialing each page. Id. at 18-19. The appellant
also speculates that one witness may have been motivated to provide false
allegations so that he could take over the appellant’s position after her removal.
Id. at 19. Additionally, the appellant describes the acts as minor discretionary
decision making. Id.
We are not persuaded. Although the appellant testified that she removed
the subordinate’s monitor and access to the cabinet for the sake of fairness to
other employees, the administrative judge did not find that explanation credible,
especially when compared to the appellant’s prior explanations about the matters
and other witness testimony or statements about the surrounding circumstances.
ID at 19-21. For similar reasons, the administrative judge did not find the
appellant’s testimony about moving the subordinate’s work location for the
purpose of better communication among employees to be credible. ID at 22 -23.
The appellant’s brief arguments, such as her reassertion of her own testimony and
speculations about the motivations of others, do not provide a basis for disturbing
the administrative judge’s findings, which are grounded in credibility
determinations. See Karnes, 2023 MSPB 12, ¶ 13.
Charge C, failure to follow supervisory instructions
We next turn to the failure to follow supervisory instructions charge, of
which the administrative judge sustained specifications 1-9 and 11-13.
ID at 23-32. Broadly speaking, specifications 1-9 and 12-13 concerned different
dates and instructions that the appellant failed to follow pertaining to her time
and attendance reports. IAF, Tab 11 at 5-7. Specification 11 concerned the
appellant failing to appear after being instructed to attend a meeting. Id. at 6.
On review, the appellant challenges specifications 1-6, which are specific
to instructions between March 27 and June 10, 2019, asserting that she was
entitled to FMLA leave throughout that period so any instructions relating to her
submission of time and attendance reports were improper. PFR File, Tab 1 at 20.
We disagree. Throughout this time, the appellant was active in terms of her time
and attendance reports, so we discern no basis for concluding that it was improper
for the agency to give her instructions about the same.
For example, in specification 1, the agency instructed the appellant to
update her time and attendance report to reflect her new first-level supervisor.
IAF, Tab 11 at 53. Within hours, the appellant defied that instruction, choosing
her fourth-level supervisor as the individual listed as her supervisor for time and
attendance reporting. Id. at 55. It is therefore apparent that the appellant was not
incapacitated or otherwise unable to receive and respond to the instruction,
despite the appellant’s insinuation to the contrary.
In specification 2, the appellant and her supervisor exchanged numerous
emails about her time and attendance report covering the March 2019 AWOL
period. IAF, Tab 11 at 65-70. Her supervisor explained that the appellant’s
reporting of LWOP for the days at issue was not approved and needed to be
changed to reflect her AWOL status, whereas the appellant disagreed. Id. Again,
there is nothing in the record suggesting that the appellant was incapacitated and
unable to follow the instructions, or that it was otherwise improper for the agency
to instruct the appellant to correct her erroneous time and attendance reporting.
The appellant also challenges specifications 12-13, stating that she was not
AWOL, so the instructions to amend her timesheet to include AWOL hours were
not proper. PFR File, Tab 1 at 21. But as the administrative judge correctly
determined that the appellant was AWOL for those hours, we find the appellant’s
reliance on a contrary conclusion to be unavailing.3
The appellant did not prove her affirmative defenses.
As previously stated, the appellant’s petition for review reasserts claims of
a due process violation or harmful error, PFR File, Tab 1 at 22-24, disability
discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for filing
EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing,
id. at 29-30. We will address each in turn.
Due process or harmful error
On review, the crux of the appellant’s due process and harmful error
argument is that the response period for her proposed removal was too short.
PFR File, Tab 1 at 22-24. The agency proposed her removal on November 13,
2019. IAF, Tab 11 at 4-8. The proposal indicated that the appellant could submit
a response within 7 calendars days, while also scheduling a meeting November
21, 2019, for purposes of any oral response. Id. at 8. Although the appellant
sought an extension of at least a week, the agency denied that request. IAF, Tab
33 at 4-8.4
To the extent that the appellant is suggesting that the agency committed a
harmful error, she has not carried her burden. A harmful error is an error by the
agency in the application of its procedures that is likely to have caused the
agency to reach a different conclusion from the one it would have reached in the
absence or cure of the error. Semenov v. Department of Veterans Affairs , 2023
3 The appellant has not presented any argument about specifications 7-9 and 11, and we
discern no error in the administrative judge’s conclusion that the agency met its burden.
PFR File, Tab 1 at 20-21. The appellant does present arguments on review about
specification 10, PFR File, Tab 1 at 20-21, but that is the specification the
administrative judge did not sustain, ID at 30, so we need not further consider the
matter.
4 The record suggests that the agency denied the request for extension because of the
deciding official’s limited availability and the agency’s belief that an unidentified
Executive Order required that it issue a decision within 14 days of the proposed
removal. IAF, Tab 33 at 5.
MSPB 16, ¶ 23. Here, the appellant has not identified any agency procedure that
it erred in applying or that any such error was harmful.
To the extent that the appellant is suggesting that the agency committed a
due process violation, we are not persuaded. The essential requirements of
constitutional due process for a tenured public employee are notice of the charges
against her, an explanation of the evidence, and an opportunity for her to present
her account of events. Cleveland Board of Education v. Loudermill , 470 U.S.
532, 546 (1985). The Board has further stated that due process requires, at a
minimum, that an employee being deprived of her property interest be given the
opportunity to be heard at a meaningful time and in a meaningful manner.
Palafox v. Department of the Navy , 124 M.S.P.R. 54, ¶ 9 (2016).5
Here, the agency provided 7 days for the appellant to respond to her
proposed removal, and she responded within that period. IAF, Tab 10 at 30-45,
Tab 17 at 5-15. The appellant nevertheless suggests that she was unable to
provide a meaningful response in that amount of time because the documentation
attached to her proposed removal was extensive and she needed to gather
documentation of her own. PFR File, Tab 1 at 23. However, the appellant has
not provided any further explanation. She has merely speculated that additional
time would have led to a better-prepared response. We find that the appellant’s
limited argument does not establish that the agency denied her due process.
See, e.g., Henderson v. Department of Veterans Affairs , 123 M.S.P.R. 536, ¶¶
1-13 (2016) (finding that an appellant who was given 7 days to respond to their
proposed adverse action was not denied due process), aff’d 878 F.3d 1044 (Fed.
Cir. 2017); Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 13 (2015)
(same); Ray v. Department of the Army , 97 M.S.P.R. 101, ¶ 22 (2004) (finding
that an appellant may have preferred a longer response period, the agency’s
5 Though not invoked by the appellant, there is a statutory requirement that an
individual such as the appellant be given “a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits and other documentary evidence
in support of” her response to the proposed removal. 5 U.S.C. § 7513(b)(2).
denial of an extension did not violate his due process rights), aff’d, 176 F. App’x
110 (Fed. Cir. 2006).
Disability discrimination
Turning to her claim of disability discrimination, the appellant also
presents limited argument. She asserts that agency officials “failed to fully
engage in the requisite interactive process” and that they “generally ignored her
medical conditions and requests for leave by continuously changing her [leave] to
AWOL.” PFR File, Tab 1 at 24-25. The appellant further asserts that the
administrative judge considered the motivations of the deciding official, without
considering whether any others who played a role in her removal may have been
motivated by her disability. Id. at 25.
Following the issuance of the initial decision, the Board clarified that an
appellant may prove disability discrimination by demonstrating that it was a
motivating factor in the contested personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 22, 40, 42. The administrative
judge found that the appellant did not present any credible evidence that her
disability motivated the agency’s removal action. ID at 38-39. In her petition,
the appellant is correct that the administrative judge’s discussion focused on the
deciding official, without mentioning any other agency official. PFR File, Tab 1
at 25; ID at 39. But the appellant has not elaborated by presenting argument or
evidence about the motivations of others, despite it being her burden to prove this
claim. PFR File, Tab 1 at 25. Accordingly, we find no reason to find that the
appellant proved that her disability was a motivating factor in the removal action
before us.6
The administrative judge found that the appellant did not prove her failure
to accommodate claim because, inter alia, the appellant declined the agency’s
6 Because we find that the appellant failed to prove that disability discrimination was a
motivating factor in the agency’s action, we need not reach the question of whether the
appellant proved that it was a but-for cause of the agency’s action. Pridgen, 2022
MSPB 31.
offer to engage in the reasonable accommodation process. ID at 37-38.
The appellant’s petition for review does not identify any evidence to the contrary,
nor does it present substantive argument to the contrary. Her bare assertion that
the agency failed to fully engage in the interactive process is therefore
unavailing. See 5 C.F.R. § 1201.115(a) (providing that a petition for review must
identify specific evidence in the record demonstrating any alleged erroneous
findings of material fact and explain why the challenged factual determinations
are incorrect).
Sex discrimination
Like her disability discrimination claim, the motivating factor standard
applies to the appellant’s claim of sex discrimination, so we modify the initial
decision to incorporate this standard. Pridgen, 2022 MSPB 31, ¶¶ 20-22.
The administrative judge found that the appellant submitted a bare allegation but
no credible evidence that the agency’s actions were motivated by sex.
ID at 40-41. The appellant reasserts her sex discrimination claim on review, but
still presents little more than speculation that sex was a motivating factor in her
removal. PFR File, Tab 1 at 25-26. Without more, the appellant has not shown
that the administrative judge erred in denying this affirmative defense.7
See 5 C.F.R. § 1201.115(a).
Reprisal for EEO complaints
Claims of retaliation for opposing sex discrimination in violation of Title
VII are analyzed under the same framework as a sex discrimination claim.
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31,
¶ 30. However, a but-for causation standard is applicable to retaliation claims
based on activity protected under the Rehabilitation Act. .The but-for standard is
7 The only portion of the record the appellant cites is her written declaration from
below. PFR File, Tab 1 at 26 (referencing IAF, Tab 14 at 26-31). By itself, that
declaration is not persuasive, especially when accounting for the administrative judge’s
conclusion that the appellant regularly sought to manipulate information to create an
inaccurate narrative and was not credible. ID at 6.
more stringent than the motivating factor standard. Desjardin, 2023 MSPB 6,
¶ 31; Pridgen, 2022 MSPB 31, ¶ 47.
On review, the appellant correctly notes that the administrative judge’s
analysis for this claim also focused on the deciding official, without explicitly
discussing whether others may have been motivated to retaliate for her EEO
activity. PFR File, Tab 1 at 27; ID at 42. But she once again fails to provide any
substantive or persuasive argument to support her claim. Aside from summarily
asserting that some relevant officials were implicated by some of her EEO
activities, the appellant’s petition includes no substantive argument or reference
to evidence that would prove by preponderant evidence that her EEO activity was
even a motivating factor in her removal.8 Id. at 28-29. We therefore find that the
appellant has not met her burden.
Reprisal for OSHA complaints
To the extent that the appellant alleged that her removal was reprisal for
filing OSHA complaints, the administrative judge considered the matter under
both 5 U.S.C. § 2302(b)(8), a provision prohibiting whistleblower reprisal, and
(b)(9)(A)(ii), a provision prohibiting reprisal for the filing of a complaint that
does not regard remedying whistleblower reprisal, but she found the claim
unavailing. ID at 41-42, 45. The administrative judge explained that while it was
undisputed that the appellant filed OSHA complaints, the appellant failed to
prove that her removal could have been retaliation for OSHA complaints, that
there was a genuine nexus between her removal and OSHA complaints, or that her
OSHA complaints contained protected whistleblowing disclosures. ID at 42, 45.
For an appellant to prevail on an affirmative defense of retaliation for
activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if she does not allege
reprisal for EEO activity protected under Title VII, she must show that: (1) she
8 The appellant once again cited her written declaration from below, but no other
evidence of record. PFR File, Tab 1 at 28-29 (referencing IAF, Tab 14 at 26-31).
For the reasons already discussed in this decision and the initial decision, that
declaration is not particularly persuasive. Supra, n.7.
engaged in protected activity; (2) the accused official knew of the activity; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8
(2016). On the other hand, under 5 U.S.C. § 2302(b)(8), it is a prohibited
personnel practice to take a personnel action because of any disclosure of
information by an employee that the employee reasonably believes evidences any
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 5.
In her petition for review, the appellant has not presented any substantive
arguments about her OSHA complaints or the administrative judge’s findings
about the same. She does not, for example, identify any associated evidence of
record, describe the nature of her OSHA complaints, or explain why she believes
they played a role in her removal action.
Based upon our own review of the record, we located some indications that
the appellant filed an OSHA complaint about rodents in the office where she
worked.9 The complaint alleged that the agency had denied her resulting request
to telework full-time, despite rodent feces throughout the office causing her
months of flu-like symptoms and multiple trips to an urgent or emergency care
center. IAF, Tab 34 at 144-50. The agency provided a thorough response to
OSHA officials that, inter alia, described a physical inspection, the absence of
any physical sign of rodents in the building, and the absence of any other
individuals reporting that they had seen rodents or signs of their presence.
Id. at 142-43. Based upon this limited evidence and the absence of further
9 The administrative judge seemed to indicate that she did not consider the OSHA
complaint because it was not admitted into the record, and the record was therefore
devoid of any OSHA complaint. ID at 45 n.6 (referencing IAF, Tab 34 at 145, Tab 65).
Because we were able to locate this information in the record and are unable to find any
explanation for why the administrative judge did not admit this evidence into the
record, we are considering the evidence.
argument from the appellant, we agree with the administrative judge’s conclusion
that the appellant failed to meet her burden for her claim of reprisal relating
to this or any other OSHA complaint under 5 U.S.C. § 2302(b)(8) or 5 U.S.C.
§ (b)(9)(A)(ii). See 5 C.F.R. § 1201.115(a).
Reprisal for whistleblowing activities
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
prevail on a prohibited personnel practice affirmative defense in a chapter 75
appeal that independently could form the basis of an individual right of action
appeal, once the agency proves its adverse action case by a preponderance of the
evidence, the appellant must demonstrate by preponderant evidence that she made
a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the adverse action.
Fisher, 2023 MSPB 11, ¶ 5. If the appellant meets this burden, then the burden
of persuasion shifts to the agency to prove by clear and convincing evidence that
it would have taken the same action in the absence of the appellant’s protected
disclosure or activity. Id. In determining whether the agency has met this
burden, the Board will consider all the relevant factors, including the following:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials involved
in the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999).
The administrative judge applied these standards and found that the
appellant did not prove that her OSHA complaints contained the type of
disclosure protected by section 2302(b)(8), and we agree. ID at 42-45.
Conversely, the administrative judge found that the appellant’s OIG complaint
was protected under section 2302(b)(9)(C), regardless of its contents.
Id.; see Fisher, 2023 MSPB 11, ¶ 8. She further found that the appellant satisfied
her burden regarding the contributing factor element because the deciding official
testified that he did not remember the appellant’s OIG complaint, but “probably
was briefed” on it at some point. ID at 45-46; Hearing Transcript, Day 3 (HT3)
at 112 (testimony of deciding official).
Because the administrative judge found that the appellant presented this
prima facie case of reprisal under section 2302(b)(9)(C), she shifted the burden of
persuasion to the agency. The administrative judge found that there was
overwhelming evidence in support of the agency’s removal action, there was no
evidence that the deciding official had any motive to retaliate, and there was no
evidence of similarly situated employees who were not whistleblowers. ID at 46.
On review, the appellant correctly notes that the administrative judge’s
analysis discusses the potential motive of the deciding official but no other
individual. PFR File, Tab 1 at 29-30. However, the appellant presents no other
substantive argument regarding her whistleblower reprisal claim.
Nonetheless, we modify the initial decision to supplement
the administrative judge’s Carr factor analysis while reaching the same
conclusion—that the appellant’s whistleblower reprisal claim fails. Like the
administrative judge, we find that the evidence in support of the agency’s
removal action is strong. There is abundant documentary evidence showing how
the appellant was absent from work for many months, culminating with her
AWOL on several dates spanning many more months, despite warnings.
ID at 7-19; supra, ¶¶ 17-24. There is also ample evidence, including numerous
emails and other documentation, showing how the appellant repeatedly defied
simple and unambiguous instructions, mostly as she sought to avoid work and
take more leave than allowed. ID at 23-32; supra, ¶¶ 28-32. Lastly, there is solid
evidence of the appellant engaging in unbecoming conduct towards her
subordinate, including some admissions by the appellant. ID at 19-23;
supra, ¶¶ 25-27. The limited argument or evidence the appellant presented to
defend against these charges was not persuasive. To recall, the administrative
judge did not find the appellant to be credible. ID at 6. Among other things, she
explained how the appellant had an ever-changing story and regularly tried to
manipulate information to create an inaccurate narrative. Id.
We recognize that the administrative judge did not sustain one of the
agency’s charges, about failing to follow policy by recording a meeting without
permission, and one specification of the failure to follow supervisory instructions.
However, these were not particularly consequential in the grand scheme of the
removal action, which spanned many acts over more than a year. IAF, Tab 11
at 4-7.
Turning to the motive to retaliate, we note that although the appellant has
repeatedly referenced OIG complaints, she provided limited details about the
same. Within her petition for review, the appellant’s only mentions of OIG
complaints are cursory ones in which she recounts the wide variety of complaints
she has lodged against the agency. PFR File, Tab 1 at 27-28. While doing so, the
appellant references just one piece of evidence—a declaration by the appellant, in
which she makes no mention of an OIG complaint. PFR File, Tab 1 at 28
(referencing IAF, Tab 14 at 26-31). Elsewhere, in the appellant’s “affirmative
defense brief,” she described her OIG complaint as occurring in February 2018.
Id. at 13. But she did not describe the contents or subject of the complaint, nor
did she point to evidence of the same. Id. Separately, the same pleading includes
a November 2019 email from the appellant to OIG, in which she complains of
years-long harassment that had culminated with her impending removal and the
appellant fearing for her life. Id. at 113-14.
Within her testimony, the appellant described what seems to have been
other OIG complaints about agency officials engaging in sexual harassment.
HT3 at 151-52, 155-58 (testimony of the appellant). There is also testimony from
another witness suggesting that the appellant filed a different OIG complaint at
some point, which alleged that one of her subordinates sexually harassed her—the
subordinate who was subject to the appellant’s unbecoming conduct. HT1 at 168
(testimony of appellant’s subordinate). Finally, the appellant’s closing brief once
again mentions that she filed an OIG complaint, but this time the complaint is
merely identified as occurring in October 2019. IAF, Tab 64 at 18. This closing
brief does not elaborate on the alleged complaint, and it only points to a portion
of the record pertaining to her OSHA complaint about rodents. Id. (referencing
IAF, Tab 34 at 145).
This is just some of the history of complaints described in the record, most
of which we were unable to corroborate with further documentation. The lone
exception we came across is a February 2019 OIG report, in which OIG
concluded that it could not substantiate the appellant’s claim of harassment by a
former supervisor.10 IAF, Tab 36 at 5-11. Specific to the appellant’s theory of
reprisal, we also came across testimony in which appellant’s counsel asked why
she believed the agency would retaliate for “an OIG complaint,” and the appellant
simply responded that “basically, [it] just turned the heat up on the harassment.”
HT3 at 251-52 (testimony of the appellant).
We acknowledge that relevant officials may have had some motive to
retaliate for any OIG complaint of which they were aware.11 Broadly, the
appellant was routinely filing complaints about the agency both internally and
with external parties such as the OIG and local police. This was surely
frustrating to at least some agency officials. However, the lone OIG report we
10 Following her initial complaints about this supervisor, in March 2018, the appellant
was reassigned to a different supervisor in May 2018. ID at 7; IAF, Tab 38 at 10.
For context, the appellant’s conduct unbecoming a supervisor occurred prior to this
change in her chain of command, but all other conduct underlying her removal occurred
nearly a year or more after. IAF, Tab 11 at 4-7. The former supervisor was not the
proposing or deciding official, and he did not testify at the hearing below.
11 The Federal Circuit has cautioned the Board against taking an “unduly dismissive and
restrictive view” of retaliatory motive, holding that, “[t]hose responsible for the
agency’s performance overall may well be motivated to retaliate even if they are not
directly implicated . . . , and even if they do not know the whistleblower personally, as
the criticism reflects on them in their capacities as managers and employees.”
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012)
found in the record indicated that the appellant’s allegations could not be
substantiated, and those allegations were directed at an individual who played
little if any role in the appellant’s removal. IAF, Tab 36 at 5-11.
Weighing the Carr factors together, we find that the agency would have
taken the same removal action in the absence of the appellant’s protected
whistleblowing activity.12 Although agency officials may have harbored some
motive to retaliate for the appellant’s protected whistleblowing activity, this is far
outweighed by the strength of the evidence in support of the agency’s removal
action. The appellant’s whistleblower reprisal claim is, therefore, unsuccessful.
Removal was a reasonable penalty.
When, as here, the Board does not sustain all the charges, it will carefully
consider whether the sustained charges merit the penalty imposed by the agency.
Moncada v. Executive Office of the President , 2022 MSPB 25, ¶ 39. The Board
may mitigate the penalty imposed by the agency to the maximum penalty that is
reasonable in light of the sustained charges as 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 for fewer charges. Id.
The administrative judge applied this standard and found that removal was
reasonable. ID at 47-50. The appellant disagrees. PFR File, Tab 1 at 30-33.
In particular, she characterizes hers as an unblemished and highly successful
career of 23 years. Id. at 32. The deciding official and administrative judge
accounted for the same, recognizing that this was a mitigating factor, but
concluded that the appellant failed to take responsibility for her misconduct or
show remorse for her actions and was a poor candidate for rehabilitation.
ID at 49; IAF, Tab 10 at 26-27.
12 As already mentioned, the administrative judge found that there was no evidence
pertaining to the third Carr factor, about similarly situated non-whistleblowers, which
effectively removes the factor from the analysis. See Whitmore, 680 F.3d at 1374.
The appellant separately argues that the deciding official and
administrative judge erred by characterizing her lack of remorse as an
aggravating factor, because this essentially penalized her for mounting a defense.
PFR File, Tab 1 at 33 (citing Raco v. Social Security Administration ,
117 M.S.P.R. 1 (2011)). In fact, what the deciding official and administrative
judge found was that the appellant lacked rehabilitation potential because she
failed to take responsibility for her actions or show remorse. ID at 49-50; IAF,
Tab 10 at 29. We agree with that assessment. See, e.g., IAF, Tab 10 at 30-45,
Tab 17 at 5-10. The appellant has not pointed us to anything reflecting otherwise.
This contrasts with the case cited by the appellant, where an employee confessed
to her inappropriate conduct and apologized for it before mounting a defense to
her proposed removal by way of explaining her behavior and identifying
mitigating factors. Racco, 117 M.S.P.R. 1, ¶ 16.
In her petition for review, the appellant has not presented any other
substantive arguments about the reasonableness of her removal, and we find no
basis for reaching a conclusion different than that of the administrative judge.
Among other things, some of the sustained charges are quite serious. See Thomas
v. Department of the Army , 2022 MSPB 35, ¶ 20 (recognizing that the nature and
seriousness of the offense is the most important factor in assessing the penalty).
This includes her conduct unbecoming, which the proposing and deciding
officials described as negative and unequal treatment of a subordinate she
disfavored for a promotion after he was nevertheless selected for that promotion.
E.g., IAF, Tab 10 at 25, Tab 11 at 14. Plus, the appellant holds a supervisory
position, and she repeated some of the conduct underlying this action in the face
of warnings that it would lead to discipline. Id. at 25-26; see, e.g.,
Thomas, 2022 MSPB 35, ¶ 21 (recognizing that supervisors may be held to a
higher standard of conduct). Weighing these and other relevant Douglas factors,
we agree with the administrative judge’s conclusion that removal is a reasonable
penalty for the sustained charges and specifications. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors that might be relevant when assessing the reasonableness of the penalty).
NOTICE OF APPEAL RIGHTS13
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.14 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
14 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | Messal_PamelaDE-0752-20-0137-I-1 Final Order.pdf | 2024-03-19 | PAMELA MESSAL v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-0752-20-0137-I-1, March 19, 2024 | DE-0752-20-0137-I-1 | NP |
2,038 | https://www.mspb.gov/decisions/nonprecedential/Shelton_Jeff_S_SF-0752-22-0114-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFF S. SHELTON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-22-0114-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ay Shore , Lubbock, Texas, for the appellant.
John Yap , Esquire, Chula Vista, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the removal based on a sustained charge of willful and intentional
refusal to obey an order. On petition for review, the appellant argues that the
administrative judge improperly analyzed his disability discrimination and
retaliation claims. Petition for Review (PFR) File, Tab 1. 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. Except as
expressly MODIFIED to clarify the proper framework for analyzing the
appellant’s disability discrimination and retaliation claims, to reevaluate the
agency’s undue hardship burden related to the religious discrimination failure to
accommodate claim in light of recent case law, and to independently analyze the
penalty factors, we AFFIRM the initial decision.
The appellant does not challenge the following findings made by the
administrative judge: (1) the agency proved the charge of willful and intentional
refusal to obey an order; (2) the appellant did not prove his disparate treatment
religious discrimination claim; and (3) there was a nexus between the sustained
misconduct and the efficiency of the service. PFR File, Tab 1; Initial Appeal
File, Tab 32, Initial Decision (ID). We affirm the administrative judge’s findings
in this regard.
The appellant makes two primary arguments on review related to his
disability discrimination claim. He asserts that he was improperly regarded as
disabled, and the agency was required to conduct an economic assessment under
29 C.F.R. § 1630.2(p)(2) to support its claim of undue hardship, and it failed to
do so. PFR File, Tab 1. Neither argument is persuasive. 2
The first argument appears to relate to his disparate treatment claim. We
agree with the administrative judge that there is no evidence that the agency
regarded the appellant as having a disability or a contagious condition, ID at 43,
and thus, this argument is without merit.2 In his analysis of this claim, the
administrative judge identified the motivating factor standard, and he briefly
discussed the Board’s decision in Southerland v. Department of Defense ,
119 M.S.P.R. 566 (2013), and the mixed-motive analysis. ID at 42. After the
administrative judge issued the initial decision, the Board issued Pridgen v.
Office of Management and Budget , 2022 MSPB 31, which clarified the proper
analytical framework for a disparate treatment disability discrimination claim.
Nevertheless, under both Southerland and Pridgen, the appellant bears the burden
of proving by preponderant evidence that his disability was a motivating factor in
the removal action. Pridgen, 2022 MSPB 31, ¶ 40; Southerland, 119 M.S.P.R.
566, ¶¶ 18, 23. We discern no error with the administrative judge’s implicit
conclusion that the appellant did not prove motivating factor. Any arguments on
review relating to the administrative judge’s analysis of this disparate treatment
claim do not persuade us that a different outcome is warranted.
The second argument relates to the appellant’s failure to accommodate
claim. A Federal agency may not discriminate against a qualified individual on
the basis of disability and is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that reasonable accommodation would
cause an undue hardship. 29 C.F.R. § 1630.2(o), (p). Even if we assumed for the
purposes of our analysis that the appellant was a qualified individual with a
disability, the burden shifts to the agency to show that the requested
2 It is unclear if the appellant’s argument on review in this regard is also related to his
failure to accommodate claim. Even if we somehow found, for the purposes of our
analysis, that the agency regarded him as having an impairment pursuant to 42 U.S.C.
§ 12102(1)(C) and 29 C.F.R. § 1630.2(g)(1)(iii), an employee who is disabled solely
under the “regarded as” prong is not entitled to a reasonable accommodation. Alford v.
Department of Defense , 118 M.S.P.R. 556, ¶ 10 n.6 (2012). 3
accommodation imposes an undue hardship, i.e., an action requiring “significant
difficulty or expense.” 42 U.S.C. § 12111(10)(A); 29 C.F.R. § 1630.2(p)(1). The
regulation at 29 C.F.R. § 1630.2(p)(2) sets forth several factors to consider in
evaluating undue hardship. It is true that several of these factors involve an
assessment of the agency’s financial resources and/or the financial cost of the
accommodation. However, the last factor is not explicitly financial or economic
in nature. Rather, it requires consideration of the “impact of the accommodation
upon the operation of the facility, including the impact on the ability of other
employees to perform their duties and the impact on the facility’s ability to
conduct business.” 29 C.F.R. § 1630.2(p)(2)(v). This factor is critical to the
outcome of this matter. Indeed, the agency persuasively explained that, if it
granted the appellant’s reasonable accommodation request, it would face a
significant difficulty in terms of the potentially catastrophic risk to other agency
employees, detainees, and other members of the public of contracting—and
possibly dying from—COVID-19. Accordingly, we agree with the administrative
judge that the agency satisfied its burden to show undue hardship, and the
appellant cannot prevail on this claim.
Although not explicitly raised by the appellant, we further modify the
initial decision to discuss his retaliation claim related to his disability. In
Pridgen, 2022 MSPB 31, ¶¶ 44, 46-47, the Board clarified that a “but-for”
causation standard applies to retaliation claims involving requesting a reasonable
accommodation and opposing disability discrimination because they are activities
protected by the Rehabilitation Act. Because we agree with the administrative
judge that the appellant failed to meet the lesser burden of proving that his
protected activity was a motivating factor in his removal, ID at 46, he necessarily
failed to meet the more stringent “but-for” standard. Accordingly, a different
outcome is not warranted.
Similarly, although not raised by the appellant on review, we modify the
initial decision to reevaluate the agency’s burden to prove undue hardship as part4
of the failure to accommodate religious discrimination claim. The U.S. Supreme
Court recently clarified that the agency’s burden to prove undue hardship in the
context of a failure to accommodate religious discrimination claim was not met
by a showing of a “more than de minimis” cost, which was the standard
articulated by the administrative judge in the initial decision. Groff v. DeJoy,
600 U.S. __, 143 S.Ct. 2279, 2294 (2023); ID at 36-38. Instead, the Court
clarified that the undue hardship standard was satisfied “when a burden is
substantial in the overall context of an employer’s business.” Groff, 600 U.S.
at __, 143 S.Ct. at 2294. Even under this clarified standard, a different outcome
is not warranted. We find that the agency’s reasons for denying the appellant’s
religious accommodation request in March 2021, as set forth in the initial
decision, satisfies the Groff substantial burden test. Thus, the agency has proven
that granting the appellant’s requested accommodation constitutes an undue
burden.
Having found that the appellant did not prove any of his affirmative
defenses, we now turn to the penalty. In his penalty analysis, the administrative
judge noted that when some, but not all, of an agency’s charges and specifications
are sustained, the Board will accord proper deference to the agency’s penalty
selection and modify the agency-imposed penalty only when it finds that it clearly
exceeded the bounds of reasonableness. ID at 48. The administrative judge then
briefly discussed the relevant penalty factors and concluded that removal was a
reasonable penalty for the sustained misconduct. ID at 49. The U.S. Court of
Appeals for the Federal Circuit recently held that, in a situation in which fewer
than all charges are sustained, the penalty factors should be independently
analyzed. Williams v. Bureau of Prisons , 72 F.4th 1281, 1284 (Fed. Cir. 2023).
Because the administrative judge only sustained the willful and intentional refusal
to obey charge, and not the other charges, ID at 25-33, a decision which we have
affirmed herein, we modify the initial decision to emphasize that we are not
deferring to the agency’s penalty selection. Instead, we have independently5
evaluated the penalty factors based on evidence relating to the single sustained
charge and specifications, and we find that removal is a reasonable penalty for the
sustained misconduct .3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
3 We have considered the appellant’s remaining arguments on review, but none warrant
a different outcome. For example, the appellant argues that the administrative judge
has a conflict of interest because he was “guilty of the same discriminatory imaginings
as the agency.” PFR File, Tab 1 at 10. In making a claim of bias or prejudice against
an administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during
the course of a Board proceeding warrants a new adjudication only if the administrative
judge’s comments or actions evidence “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555
(1994)). The appellant has not proven that there was any such favoritism or
antagonism.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Shelton_Jeff_S_SF-0752-22-0114-I-1_Final_Order.pdf | 2024-03-18 | JEFF S. SHELTON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-22-0114-I-1, March 18, 2024 | SF-0752-22-0114-I-1 | NP |
2,039 | https://www.mspb.gov/decisions/nonprecedential/Adamson_ChelsieghAT-315H-22-0223-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHELSIEGH ADAMSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-315H-22-0223-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
helsiegh Adamson , Lithonia, Georgia, pro se.
Jeanelle L. Graham , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction . On
petition for review, the appellant challenges the merits of the agency termination
decision and argues that she failed to respond to the order on jurisdiction because
she believed that she had more time to prepare her response. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to conclude that the appellant failed to nonfrivolously
allege that she has a regulatory right to Board review of her termination under
5 C.F.R. § 315.806(c), we AFFIRM the initial decision.
In the initial decision, the administrative judge determined that the
appellant failed to nonfrivolously allege that she had a regulatory right to Board
review of her probationary termination because she had not alleged that she was
terminated based on partisan political reasons or because of her marital status.
Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 3; see 5 C.F.R.
§ 315.805(b). However, the administrative judge did not make a finding
concerning whether the appellant had a regulatory right to appeal her
probationary termination to the Board because it was based on pre-appointment
reasons under 5 C.F.R. § 315.806(c).
As set forth in 5 C.F.R. § 315.806(c), a probationary employee whose
termination was based in whole or in part on conditions arising before her
appointment may appeal her termination to the Board on the ground that it was
not effected in accordance with the procedural requirements set forth in 5 C.F.R.
§ 315.805. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7
(2016). Those procedural requirements include advance notice of the termination,2
an opportunity to respond, and consideration of the response. Id., ¶ 13; 5 C.F.R.
§ 315.805(a)-(c). In a probationary termination appeal arising under section
315.806(c), the only issue before the Board is whether the agency’s failure to
follow the procedures set forth in section 315.805 was harmful error and the
Board does not address the merits of the agency’s termination. LeMaster,
123 M.S.P.R. 453, ¶ 7.
The appellant failed to respond to the administrative judge’s jurisdictional
order and so she did not present any argument regarding any potential regulatory
right to Board review under 5 C.F.R. § 315.806(c). ID at 3. However, with her
initial appeal the appellant provided a copy of a proposed removal letter dated
February 14, 2022, based on a charge of providing inaccurate information during
the pre-employment process with three specifications. IAF, Tab 1 at 8-10. The
first specification of the charge related to the appellant’s failure to disclose a
prior termination on her pre-employment background investigation questionnaire,
on or about February 19, 2021. Id. at 8. The second specification concerned her
failure to disclose a prior termination on her Declaration for Federal Employment
form, which she certified as being true and correct on February 5, 2021. Id. The
third specification alleged the appellant failed to disclose that she had been
terminated by a prior employer in May 2017, and that in response to
interrogatories provided to her on January 20, 2022, she answered “No” when
asked if she had been written up or terminated by the prior employer. Id. at 8-9.
The appellant also provided a copy of a r emoval decision letter dated
February 28, 2022, which sustained the charge and the three underlying
specifications and considered the relevant Douglas2 factors. Id. at 11-15.
Additionally, with her petition for review the appellant has also provided a
copy of the supplemental background investigation questions she received from
the agency along with her responses, and reasserted that she was terminated based
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981 ), the Board articulated a
nonexhaustive list of twelve relevant factors to be considered in determining the
appropriateness of an imposed penalty.3
on answers she provided on her background investigation questionnaire. Petition
for Review (PFR) File, Tab 1 at 6-7, 11-25. Further, with its response to the
petition for review, the agency provided a summary of the appellant’s oral reply
to the proposed termination, which discusses the charge and each of the three
specifications. PFR File, Tab 4 at 14-16.
The Board ordinarily will not consider evidence submitted for the first time
on review absent a showing that it is both new and material.
5 C.F.R. § 1201.115(d); see Okello v. Office of Personnel Management ,
112 M.S.P.R. 563, ¶ 10 (2009). However, the issue of jurisdiction is always
before the Board and may be raised sua sponte by the Board at any time during
Board proceedings, and so we have considered the additional evidence provided
by the parties on review. Coradeschi v. Department of Homeland Security ,
109 M.S.P.R. 591, ¶ 7 (2008), aff’d, 326 F. App’x 566 (Fed. Cir. 2009).
Based on the foregoing, it appears that the appellant’s probationary
termination was based, at least in part, on pre-appointment reasons, and so the
appellant may have been entitled to the procedures set forth in 5 C.F.R.
§ 315.805. We nevertheless conclude that she failed to nonfrivolously allege that
she had a regulatory right to Board review of her termination under 5 C.F.R.
§ 315.806(c) because the record demonstrates that the agency followed the
procedural requirements set forth in 5 C.F.R. § 315.805.
Based on the removal proposal and decision letters and the summary of the
oral response, it is clear that the appellant was provided with all of the procedural
requirements set forth in 5 C.F.R. § 315.805(a)-(c), including advance notice of
her termination, an opportunity to respond, and consideration of her response.
See LeMaster, 123 M.S.P.R. 453, ¶¶ 7, 13. Specifically, the appellant received
the proposed termination letter on February 14, 2022, she was provided with
5 days to respond to the proposal, and a union representative provided an oral
response on her behalf on February 16, 2022. PFR File, Tab 4 at 14.4
The appellant also provided a written response to the proposal on
February 14, 2022, and a second written response after the oral reply on
February 16, 2022. PFR File, Tab 1 at 8-10. Additionally, the record clearly
reflects that the deciding official took the appellant’s responses into consideration
before issuing his termination decision on February 28, 2022. PFR File, Tab 4
at 16 (oral response summary noting that the deciding official would consider the
appellant’s oral response, the union’s written response, the information in the
disciplinary file, and the Douglas factors before making a final decision);
IAF, Tab 1 at 11 (termination decision letter reflecting that the deciding official
fully considered the evidence before issuing the decision).
Accordingly, after considering the evidence in the record and the additional
evidence provided on review, we conclude that the appellant failed to
nonfrivolously allege that the agency failed to comply with the procedural
requirements of 5 C.F.R. § 315.805 and so she has not established a basis for
Board jurisdiction over her appeal under 5 C.F.R. § 315.806(c). Consequently,
we deny the petition for review and affirm the initial decision dismissing the
appellant’s probationary termination appeal for lack of jurisdiction, as
supplemented by the above analysis.3
3 Regarding the appellant’s argument on review that she believed the stay of the
deadlines in the Acknowledgement Order also applied to her and so she had “more time
to prepare,” the Order Granting Stay clearly identified that the deadlines set forth in the
Acknowledgement Order were stayed and said nothing about the deadlines in the
jurisdiction order, which instructed the appellant to file a jurisdictional response within
15 days of March 4, 2022, on threat of dismissal for lack of jurisdiction. IAF, Tab 3
at 4-5, Tab 6. An appellant’s failure to follow explicit filing instructions does not
constitute good cause for any ensuing delay. Sanford v. Department of Defense ,
61 M.S.P.R. 207, 209 (1994 ); see Colon v. U.S. Postal Service , 71 M.S.P.R. 514, 517
(1996) (explaining that a party’s hastiness in reading a Board notice containing filing
instructions does not evidence the due diligence necessary to excuse an untimely
filing); Mata v. Office of Personnel Management , 53 M.S.P.R. 552, 554-55 (noting that
a lack of familiarity with the Board’s administrative practices does not constitute good
cause for waiver of the Board’s timeliness requirements ), aff’d, 983 F.2d 1088
(Fed. Cir. 1992) (Table).5
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.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Adamson_ChelsieghAT-315H-22-0223-I-1_Final_Order.pdf | 2024-03-18 | CHELSIEGH ADAMSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-315H-22-0223-I-1, March 18, 2024 | AT-315H-22-0223-I-1 | NP |
2,040 | https://www.mspb.gov/decisions/nonprecedential/Margolin_Daren_K_SF-4324-22-0298-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAREN K. MARGOLIN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-4324-22-0298-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
obert P. Erbe , Esquire, Tucson, Arizona, for the appellant.
Patrick D. Gregory, Sr. , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied him corrective action in his Uniformed Services Employment and
Reemployment Rights Act (USERRA) appeal. On petition for review, the
appellant argues primarily that the administrative judge erred in finding that the
agency did not have a policy or practice of setting pay for Immigration Judges
with military service based on their military ranks and years of service.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant was not denied a benefit of employment under 38 U.S.C.
§ 4311(a), we AFFIRM the initial decision.
Generally, an employee making a USERRA claim under 38 U.S.C. § 4311
must show that (1) he was denied a benefit of employment, and (2) his military
service was a substantial or motivating factor in the denial of such a benefit.
Adams v. Department of Homeland Security , 3 F.4th 1375, 1377 (Fed. Cir. 2021),
cert. denied, 142 S.Ct. 2835 (2022). In relevant part, a “benefit of employment”
for USERRA purposes “ means the terms, conditions, or privileges of
employment, including any advantage, profit, privilege, gain, status, account, or
interest (including wages or salary for work performed) that accrues by reason
of . . . an employer policy, plan, or practice . . . .” 38 U.S.C. § 4303(2). In other
words, a benefit of employment under 38 U.S.C. § 4311 is one that flows as a
result of the person’s employment. Thomsen v. Department of the Treasury ,
169 F.3d 1378, 1381 (Fed. Cir. 1999). As provided in the statute, the benefit of
employment must be the result of an employer’s policy, plan, or practice.
38 U.S.C. § 4303(2).2
The administrative judge stated that it was undisputed that the agency
denied the appellant a benefit of employment by appointing him at pay rate IJ-1
rather than at rate IJ-3. Initial Appeal File (IAF), Tab 21, Initial Decision (ID)
at 5. We find that this statement constituted a semantic error because the
administrative judge commenced to find that the purported policy, which the
appellant claimed entitled him to the IJ-3 rate—referred to as the “matrix of
considerations”—did not in fact constitute agency policy. ID at 5 n.3, 9-11. We
thus interpret the administrative judge’s statement to merely assert that the
appellant was denied a benefit to which he claimed entitlement, not that the
claimed benefit was one to which he was actually entitled. Because the appellant
was not denied a benefit of employment that flowed as a result of his employment
with the agency, the agency did not violate USERRA, and the administrative
judge properly denied the appellant corrective action. See Adams, 3 F.4th
at 1377-81 (denying a petitioner’s USERRA claim because he was not entitled to
differential pay as a benefit of employment under the applicable statute).2
2 At the hearing, the appellant made a hearsay objection to the testimony of the Human
Resources Officer, who only began working for the agency in 2021 and testified, in
part, based on information he obtained from his staff . IAF, Tab 18, Hearing Recording
(HR) (testimony of the Human Resources Officer). The administrative judge overruled
the objection, explaining that hearsay was allowed in Board proceedings and that other
witness testimony and evidence—including the memorandum of the Chief Immigration
Judge (CIJ) which referenced the matrix of considerations—was also based on hearsay.
Id. On review, the appellant claims that the administrative judge failed to apply the
factors listed in Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981 ), to
weigh the probative value of the Human Resources Officer’s testimony in finding that
the matrix of considerations did not represent agency policy. Petition for Review File,
Tab 3 at 23-24. He argues that the administrative judge should not have relied on the
Human Resources Officer’s testimony nor that of the Director, whom the appellant
claims also did not testify based on personal knowledge. Id. We find the appellant’s
claim to be misplaced for at least two reasons. First, in his prehearing submission, he
noted that he intended to call both the Human Resources Officer and the Director as
witnesses, and proffered that they would testify on the exact subjects—the agency’s pay
policy and any past practices of setting pay based on military service—to which he
objects on review. IAF, Tab 12 at 21. The appellant thus essentially faults the
administrative judge for relying on the testimony of witnesses he requested. Second,
applying the Borninkhof factors, we find that the probative value of the hearsay
evidence the Human Resources Officer and Director relied upon in their testimony was3
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
high, and that the administrative judge gave due credit to their testimony. The issue
here is that both the Human Resources Officer and Director testified that the matrix of
considerations did not represent agency policy based, at least in part, on information
provided by other agency employees who did not testify at the hearing. HR (testimony
of the Human Resources Officer, testimony of the Director). Although some of the
Borninkhof factors weigh in favor of the opposite conclusion, we find that the
dispositive factors here are factors (5) through (7)—i.e., the consistency of declarants’
accounts with other information in the case, internal consistency, and their consistency
with each other, whether corroboration for statements can otherwise be found in the
record, and the absence of contradictory evidence, Borninkhof, 5 M.S.P.R. at 87—and
that the probative value of any hearsay relied upon by the Human Resources Officer and
Director in testifying that the matrix of considerations did not represent agency policy
was strong. The Human Resources Officer provided non-hearsay testimony,
corroborated by the Director and even the CIJ, who otherwise testified in support of the
appellant’s claim, that the human resources department had authority to set pay for
Immigration Judges while the CIJ did not. HR (testimony of the Human Resources
Officer, testimony of the Director, testimony of the CIJ). Further, as the administrative
judge correctly found, it was implausible that, if the matrix of considerations
represented agency policy, such a policy would be unknown to the Human Resources
Officer or the Director or that it would not be reduced to a formal policy document. ID
at 9. On the other hand, the testimony in favor of the appellant’s claim that the matrix
represented agency policy was ambiguous, and the Principal Deputy CIJ’s 2018 email—
the only place where the witnesses who supported the appellant’s claim ever saw the
matrix documented—did not purport to denote official policy. IAF, Tab 14 at 31; HR
(testimony of the CIJ, testimony of the Western Region Deputy CIJ). Considering all
the record evidence, we agree with the administrative judge’s conclusion that the matrix
of considerations did not represent agency policy, even if the conclusion was based in
part on hearsay.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Margolin_Daren_K_SF-4324-22-0298-I-1_Final_Order.pdf | 2024-03-18 | DAREN K. MARGOLIN v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-4324-22-0298-I-1, March 18, 2024 | SF-4324-22-0298-I-1 | NP |
2,041 | https://www.mspb.gov/decisions/nonprecedential/Grapperhaus_Duane_J_CH-0752-18-0413-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUANE J. GRAPPERHAUS,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
CH-0752-18-0413-I-1
DATE: March 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
D
uane J. Grapperhaus , Breese, Illinois, pro se.
Travis W. Gosselin , Esquire, and Willard Lowe , Chicago, Illinois, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, AFFIRM the initial decision to the
extent it dismissed for lack of jurisdiction the appellant’s claims that the agency
failed to promote him, VACATE the initial decision to the extent it dismissed for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
lack of jurisdiction his claim that his retirement was involuntary, and REMAND
his involuntary retirement claim to the Central Regional Office for further
adjudication in accordance with this Remand Order.
Background
The appellant retired under Civil Service Retirement System (CSRS) Offset
in 2004. Initial Appeal File (IAF), Tab 1 at 4. In 2011, he took a position at the
agency as a reemployed annuitant, apparently waiving his annuity to do so.
In 2017, he retired again, also under CSRS Offset. IAF, Tab 13 at 52. He
thereafter filed an appeal in which he contended that his retirement was
involuntary because the agency failed to inform him that his annuity would be
offset by the amount of his social security benefits and that he detrimentally
relied on the annuity estimate the agency provided him. IAF, Tab 1. He also
asserted that the agency failed to promote him, id., which the administrative judge
construed as an employment practices claim. The administrative judge afforded
the appellant proper Burgess2 notice, IAF, Tabs 2, 7, and, after considering the
parties’ responses, she dismissed the appeal for lack of jurisdiction without a
hearing, finding that the appellant failed to make a nonfrivolous allegation of
jurisdiction. IAF, Tab 21, Initial Decision, at 1-2, 4-5, 7-8.
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency has not responded to the petition for
review.
The administrative judge correctly dismissed the appellant’s non-promotion claim
for lack of jurisdiction.
The appellant contends that the selection process for a Deputy Regional
Director position, for which he applied but was not selected, was unfairly
manipulated to the advantage of the eventual selectee because the agency gave
her a noncompetitive temporary assignment to the Acting Deputy Regional
Director position that was not available to the other candidates for the permanent
2 Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 (Fed. Cir. 1985).
3
position and then credited her with experience as the Acting Deputy Regional
Director that the other candidates lacked and were unable to obtain. PFR File,
Tab 1 at 23-27; IAF, Tab 4 at 6-7. He asserts that this process violated merit
system principles. PFR File, Tab 1 at 25; IAF, Tab 4 at 6.
It is well-settled that the Board lacks jurisdiction over non-selections.
Alvarez v. Department of Homeland Security , 112 M.S.P.R. 434, ¶ 6 (2009); Tines
v. Department of the Air Force , 56 M.S.P.R. 90, 93 (1992). However, a n
applicant for employment who believes that an employment practice applied to
him by the Office of Personnel Management (OPM) violates a basic requirement
in 5 C.F.R.§ 300.103 is entitled to appeal to the Board. Sauser v. Department of
Veterans Affairs , 113 M.S.P.R. 403, ¶ 6 (2010); 5 C.F.R. § 300.104(a). The
Board has jurisdiction under 5 C.F.R. § 300.104(a) when two conditions are met:
first, the appeal must concern an employment practice that OPM is involved in
administering; and second, the appellant must make a nonfrivolous allegation that
the employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. Sauser, 113 M.S.P.R. 403, ¶ 6.
“Employment practices,” as defined in OPM’s regulations, “affect the
recruitment, measurement, ranking, and selection” of applicants for positions in
the competitive service. 5 C.F.R. § 300.101. Although the appellant alleges that
the agency violated merit systems principles in the manner in which it filled the
Deputy Regional Director position, he does not claim that an employment
practice was applied to him by OPM, as required by 5 C.F.R. § 300.104(a), that a
valid employment practice administered by OPM was misapplied to him by the
agency, or that an employment practice applied to him violates one of the basic
requirements contained in 5 C.F.R. § 300.103. Sauser, 113 M.S.P.R. 403, ¶ 7.
On review, the appellant reiterates his argument below that the agency
granted the eventual selectee preferential treatment that had the effect of
enhancing her experience and qualifications and that this preferential treatment
rendered the other candidates “unsuitable” and violated merit system principles.
4
PFR File, Tab 1 at 21-27; IAF, Tab 4 at 6, Tab 14 at 4-6, Tab 18 at 4-10. Even if
true, these allegations would not establish an appealable employment practice
under 5 C.F.R. subpart 300. Furthermore, the merit system principles are not an
independent source of jurisdiction. D’Leo v. Department of the Navy ,
53 M.S.P.R. 44, 48 (1992).
The appellant contends that the applicants who were not selected were
deemed “unsuitable.” PFR File, Tab 1 at 24-25; IAF, Tab 18 at 4-5. The Board
has jurisdiction over suitability actions, 5 C.F.R. § 731.501, but a “suitability
action” is defined as a cancellation of eligibility, a removal, a cancellation of
reinstatement eligibility, and a debarment. Alvarez, 112 M.S.P.R. 434, ¶ 7. A
nonselection for a specific position is not a suitability action, even if it based on
reasons similar to the criteria for making suitability determinations set forth at
5 C.F.R. § 731.202. Alvarez, 112 M.S.P.R. 434, ¶ 7. In this case, it seems that
the selectee was preferred based on her qualifications and, although the appellant
alleges that that the manner in which she was able to obtain her qualifications was
unfair, that does not mean that the appellant’s nonselection was an appealable
suitability action under 5 C.F.R. part 731.
The appellant made a nonfrivolous allegation that his retirement was involuntary
due to agency misinformation.
A retirement is involuntary if an agency made misleading statements upon
which the appellant reasonably relied to his detriment. Petric v. Office of
Personnel Management , 108 M.S.P.R. 342, ¶ 9 (2008). The appellant need not
show that the agency intentionally misled him. Baldwin v. Department of
Veterans Affairs , 109 M.S.P.R. 392, ¶ 26 (2008). The agency could have
provided the misleading information negligently or even innocently; if the
appellant materially relied on the misinformation to his detriment, his retirement
is considered involuntary. Covington v. Department of Health and Human
Services, 750 F.2d 937, 942 (Fed. Cir. 1984). An objective test applies in such
situations; the subjective perceptions of the employee and the subjective
5
intentions of the agency are not particularly relevant. Id.; Scharf v. Department
of the Air Force , 710 F.2d 1572, 1575 (Fed. Cir. 1983). The appellant is entitled
to a hearing on the issue of Board jurisdiction over an appeal of an alleged
involuntary retirement if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness. Petric, 108 M.S.P.R. 342, ¶ 9.
The agency here provided the appellant with a preretirement annuity
estimate that indicated he was in the CSRS Offset retirement plan and set forth
deductions for life insurance and for providing a survivor annuity, but did not set
forth any reductions in his annuity to account for the offset when he became
eligible to receive social security benefits. IAF, Tab 4 at 13-16. The agency
conceded that it mistakenly failed to provide this information. IAF, Tab 19 at 6.
The appellant alleges that he relied upon the mistaken information to his
detriment and that he would not have retired had he known that his monthly
annuity would be reduced by some $910 per month. IAF, Tab 4 at 6.
We find that the agency’s failure to provide any information about the
amount of the social security offset was misleading and that the appellant has
raised a nonfrivolous allegation that he relied on this information to his
detriment. Accordingly, he is entitled to a jurisdictional hearing and an
opportunity to prove by preponderant evidence that his retirement was
involuntary.
6
ORDER
For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Grapperhaus_Duane_J_CH-0752-18-0413-I-1_Remand_Order.pdf | 2024-03-18 | DUANE J. GRAPPERHAUS v. DEPARTMENT OF LABOR, MSPB Docket No. CH-0752-18-0413-I-1, March 18, 2024 | CH-0752-18-0413-I-1 | NP |
2,042 | https://www.mspb.gov/decisions/nonprecedential/Martinez_Rudolph Jr_DE-0752-22-0095-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUDOLPH MARTINEZ, JR.,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-22-0095-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
ance O. Taylor , Pueblo, Colorado, for the appellant.
Stephen Coutant , Honolulu, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal action. On petition for review, the appellant essentially
reiterates his arguments from 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
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).
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 | Martinez_Rudolph Jr_DE-0752-22-0095-I-1_Final_Order.pdf | 2024-03-18 | null | DE-0752-22-0095-I-1 | NP |
2,043 | https://www.mspb.gov/decisions/nonprecedential/Whitlock_JamesAT-3443-22-0531-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES WHITLOCK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-3443-22-0531-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ames Whitlock , Phenix City, Alabama, pro se.
Nic Roberts , Fort Benning, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal concerning the agency’s purported failure to grant him relief
pursuant to a grievance decision for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on
an erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On review, the appellant asserts, as he did before the administrative judge,
that he was “denied the proper pay and benefits of a GS-13 while being detailed”
from his GS-12 position and that he was “denied by the agency [his] right of
appeal.” Petition for Review File, Tab 1 at 1. Specifically, the appellant has
asserted that he was detailed to a GS-13 position for 19 months but was paid for
only 120 days of that time, during which he was temporarily promoted. Id. To
the extent the appellant seeks to challenge the termination of his temporary
promotion, it is well-settled that the termination of a temporary promotion is not
an adverse action that is appealable to the Board. See Winn v. Department of the
Treasury, 7 M.S.P.R. 157, 159 (1981). To the extent the appellant is asserting
that his position was improperly classified as GS-12 during the relevant time
period and he was required to perform higher-graded duties, the Board lacks
jurisdiction to hear such a claim. See Beaudette v. Department of the Treasury ,
100 M.S.P.R. 353, ¶ 12 (2005); see also Parker v. Department of the Interior ,
7 M.S.P.R. 662, 663 (1981) (finding that the Board lacked jurisdiction to hear
an employee’s claim that he served for 2 years in an acting position and was not
properly compensated). Finally, to the extent the appellant seeks to appeal a
grievance decision to the Board, he has not cited to any authority allowing the2
Board to review such a decision at issue, and we are aware of none. We,
therefore, affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 | Whitlock_JamesAT-3443-22-0531-I-1_Final_Order.pdf | 2024-03-18 | JAMES WHITLOCK v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-3443-22-0531-I-1, March 18, 2024 | AT-3443-22-0531-I-1 | NP |
2,044 | https://www.mspb.gov/decisions/nonprecedential/Gonzalez_RosaleeDE-0731-22-0176-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSALEE GONZALEZ,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-0731-22-0176-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
yan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.
Garrett T. Lyons , Esquire, Vestal, New York, for the appellant.
Maria Iliadis , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed her nonselection appeal for lack of jurisdiction. On review,
she reargues that the agency’s decision not to proceed with her appointment
constituted a suitability action because she reasonably believed it was 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).
cancellation of eligibility for any position in the Federal Government. Petition
For Review (PFR) File, Tab 1 at 9-10. Generally, we grant petitions such as 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 also argues that the administrative judge erred
in finding that she did not raise an employment practices claim. PFR File,
Tab 1 at 10. We disagree. The appellant is represented by legal counsel and her
response to the acknowledgment order clearly sets forth her argument for the
alleged suitability action. Initial Appeal File, Tab 5 at 5-10. For the first time on
review, the appellant attempts to raise an employment practices claim. PFR File,
Tab 1 at 10. She argues that the manner in which the agency applied the criminal
and financial background check to her candidacy “had no rational basis to the
position which she was denied employment.” Id. In making this argument, she
references the requirement that “[t]here shall be a rational relationship between
performance in the position filled . . . and the employment practice used.” Id.
at 9; 5 C.F.R. § 300.103(b)(1).
Even considering this late raised argument, the appellant has not made a
nonfrivolous allegation of Board jurisdiction over an employment practices2
appeal under 5 C.F.R. § 300.104(a). The Board has jurisdiction under 5 C.F.R.
§ 300.104(a) when two conditions are met: first, the appeal must concern
an employment practice that the Office of Personnel Management (OPM) is
involved in administering; and second, the employment practice must be alleged
to have violated one of the “basic requirements” for employment practices set
forth in 5 C.F.R. § 300.103. Mapstone v. Department of the Interior ,
110 M.S.P.R. 122, ¶ 7 (2008).
The Board has found that an agency’s “misapplication” of a valid OPM
requirement may constitute an employment practice for purposes of Board
jurisdiction under 5 C.F.R. § 300.104(a). See Sauser v. Department of Veterans
Affairs, 113 M.S.P.R. 403, ¶ 7 (2010). However, “misapplication” in this context
does not mean that the agency or OPM inaccurately evaluated a candidate using a
valid OPM requirement. See Banks v. Department of Agriculture , 59 M.S.P.R.
157, 160 (1993) (declining to find that an agency’s alleged irregularities in
determining the appellant did not meet the qualifications for a vacancy was
an employment practice appealable to the Board), aff’d, 26 F.3d 140 (Fed. Cir.
1994) (Table). Rather, it means that the very application of the requirement to
the candidate violated one of the basic requisites of 5 C.F.R. § 300.103. See
Dowd v. United States , 713 F.2d 720, 721-24 (Fed. Cir. 1983) (finding
jurisdiction over an employment practices appeal on the basis of a misapplication
of a valid OPM standard when the appellant asserted that the employment
practice at issue should not have applied to him at all); Sauser, 113 M.S.P.R. 403,
¶¶ 8-10 (finding that an appellant established jurisdiction over an employment
practices appeal based on an allegation that an agency improperly applied OPM
qualification standards that were not rationally related to performance in the
position to be filled). Here, because the appellant does not challenge the
applicability of the background check at issue, just the result, she has not alleged
that the agency “misapplied” that requirement. PFR File, Tab 1 at 10-11.
Therefore, the appellant failed to establish jurisdiction on this basis. 3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Gonzalez_RosaleeDE-0731-22-0176-I-1_Final_Order.pdf | 2024-03-18 | ROSALEE GONZALEZ v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-0731-22-0176-I-1, March 18, 2024 | DE-0731-22-0176-I-1 | NP |
2,045 | https://www.mspb.gov/decisions/nonprecedential/Alvarado_Andrea_L_SF-3443-22-0429-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREA L. ALVARADO,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-3443-22-0429-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndrea L. Alvarado , Yigo, Guam, pro se.
Joseph P. Duenas , FPO, APO/FPO Pacific, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the agency’s alleged denial of a
“post differential.” On petition for review, the appellant argues that the agency
informed her that she could appeal its decision to the Board. Petition for Review
(PFR) 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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).
2 Regarding the appellant’s argument on review that the agency informed her that she
could file an appeal with the Board of its decision denying her a post differential,
PFR File, Tab 1 at 4, it is well settled that an agency cannot confer appeal rights where
none otherwise exist. See Barrand v. Department of Veterans Affairs , 112 M.S.P.R.
210, ¶ 13 (2009) (explaining that the Board’s jurisdiction cannot be expanded by an
agency’s erroneous notice of appeal rights); Special Counsel v. Perkins , 104 M.S.P.R.
148, ¶ 22 n.5 (2006 ) (stating that an agency cannot confer jurisdiction on the Board
where it does not otherwise exist); Bielomaz v. Department of the Navy , 86 M.S.P.R.
276, ¶ 10 (2000); Metz v. U.S. Postal Service , 1 M.S.P.R. 693, 695 (1980 ) (stating that
an agency’s advice to an appellant regarding a right of appeal cannot confer a right of
appeal to the Board). Thus, the agency’s prior communications to the appellant
regarding a right to appeal to the Board do not establish Board jurisdiction, and her
argument on review is without merit.
3 Because the appellant has failed to nonfrivolously allege Board jurisdiction over her
appeal, we have not considered her arguments regarding the timeliness of her appeal,
see Rosell v. Department of Defense , 100 M.S.P.R. 594, ¶ 5 (2005 ) (explaining that the
existence of Board jurisdiction is the threshold issue in adjudicating an appeal and
ordinarily should be determined before reaching the issue of timeliness), aff’d, 191 F.
App’x 954 (Fed. Cir. 2006), nor have we considered her arguments on review regarding
the merits of the agency’s alleged decision to deny her a post differential, see Sapla v.
Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012) (declining to consider an
argument that is not relevant to the question of jurisdiction when the issue before the
Board is whether it has jurisdiction to consider the appellant’s appeal).2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Alvarado_Andrea_L_SF-3443-22-0429-I-1_Final_Order.pdf | 2024-03-18 | ANDREA L. ALVARADO v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-3443-22-0429-I-1, March 18, 2024 | SF-3443-22-0429-I-1 | NP |
2,046 | https://www.mspb.gov/decisions/nonprecedential/Gallisdorfer_Kaylee_C_SF-0752-22-0018-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAYLEE C. GALLISDORFER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-22-0018-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
halmers C. Johnson , Esquire, Port Orchard, Washington, for the appellant.
Meredith McBride , Esquire, Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal based on the charge of unauthorized absence. On petition
for review, the appellant argues that the administrative judge erred in finding that
the agency properly denied her request for leave without pay, that there was a
nexus between the charge and the efficiency of the service, and that she failed to
establish her affirmative defense of reprisal for protected Equal Employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Opportunity (EEO) activity. Generally, we grant petitions such as 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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Because we find that the appellant failed to prove that her prior EEO activity was a
motivating factor in her removal, we do not reach the question of whether that activity
was a “but-for” cause of the removal. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Gallisdorfer_Kaylee_C_SF-0752-22-0018-I-1_Final_Order.pdf | 2024-03-18 | KAYLEE C. GALLISDORFER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-22-0018-I-1, March 18, 2024 | SF-0752-22-0018-I-1 | NP |
2,047 | https://www.mspb.gov/decisions/nonprecedential/Ang_Abrigo_MarcSF-315H-22-0325-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARC ANG ABRIGO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-22-0325-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
oel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Victoria Eatherton , and Yvette Banker , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On petition
for review, the appellant argues that he qualifies as an employee with appeal
rights under 5 U.S.C. § 7511(a)(1)(B).2 Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Section 7511(a)(1)(B) applies to preference eligible individuals in the excepted
service. While the appellant is preference eligible, it is undisputed that his position
with the agency was in the competitive service. We have considered the appellant’s
remaining arguments and find that they do not warrant further 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 | Ang_Abrigo_MarcSF-315H-22-0325-I-1_Final_Order.pdf | 2024-03-18 | MARC ANG ABRIGO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-22-0325-I-1, March 18, 2024 | SF-315H-22-0325-I-1 | NP |
2,048 | https://www.mspb.gov/decisions/nonprecedential/Chapman_Terry_R_PH-0841-17-0440-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY R. CHAPMAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-17-0440-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
erry R. Chapman , Baltimore, Maryland, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as withdrawn his appeal of a final decision by the Office of Personnel
Management (OPM) denying his application for retirement under the Federal
Employees’ Retirement System (FERS). For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
cause shown, 5 C.F.R. § 1201.114(e), (g), and his request to reopen his appeal is
DENIED, 5 C.F.R. § 1201.118.
BACKGROUND
From 1992 to until his resignation in 2005, the appellant was employed by
the Social Security Administration. Initial Appeal File (IAF), Tab 10 at 16-18.
On May 8, 2005, he requested a refund of his retirement deductions, agreeing that
he understood that “payment of a refund will result in permanent forfeiture of any
retirement rights that are based on the period(s) of [FERS] service which the
refund covers.” Id. at 20. OPM authorized the refund on September 13, 2005.
Id. at 12. In 2017, he applied for retirement under FERS. Id. at 8-10. OPM
issued a final decision dated September 1, 2017, finding that the appellant was
not eligible for retirement annuity benefits under FERS because he had received a
refund of his retirement deductions. Id. at 6-7.
On September 11, 2017, the appellant timely appealed OPM’s final
decision to the Board. IAF, Tabs 1, 3. He subsequently requested to withdraw
his appeal, affirming in a recording that he wished to withdraw his appeal against
OPM and that he understood the administrative judge would dismiss the appeal.
IAF, Tab 12. In a December 8, 2017 initial decision, the administrative judge
found that the appellant’s request to withdraw the appeal was clear, decisive, and
unequivocal, and granted his request. IAF, Tab 13, Initial Decision (ID).
In May 2018, the appellant submitted a new pleading to the regional office,
stating, in part, that he did not wish to withdraw his claim and that he agreed to
withdraw it because the administrative judge suggested that his “dispute was with
or is with SSA.” Petition for Review (PFR) File, Tab 1 at 6. The regional office
forwarded the pleading to the Board for docketing as a petition for review of the
initial decision. Id. at 1. The Clerk of the Board notified the appellant that his
petition for review appeared to be untimely filed and directed him to file a motion
to accept the filing as timely or to waive the time limit for good cause. PFR2
File, Tab 2. The appellant responded and moved that the Board accept his filing
as timely or to waive the time limit for good cause shown. PFR File, Tab 4. The
agency has responded to the appellant’s petition for review. PFR File, Tab 3.
The appellant has filed an untimely reply to the agency’s response. PFR File,
Tab 5.
ANALYSIS
The appellant’s petition for review is untimely filed without good cause shown.
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
he received the initial decision more than 5 days after it was issued, within
30 days after he 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). Because the
administrative judge issued the initial decision in this case on December 8, 2017,
any petition for review of the initial decision must have been filed by January 12,
2018. ID at 1, 9; 5 C.F.R. § 1201.114(e). The appellant, however, did not submit
his petition for review until May 16, 2018—more than 4 months after the
deadline. PFR File, Tab 1. As noted above, the appellant asserts that he has been
having problems receiving mail at his home. PFR File, Tab 4 at 3-6. However,
he has not alleged that he received the initial decision more than 5 days after its
issuance or that he timely filed his petition for review within 30 days of his
delayed receipt of the initial decision. Id. Thus, we find that the appellant’s
petition for review was untimely filed.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an
untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Id. To determine whether a party3
has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and the party’s showing of due diligence, whether he
is proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Id. Here, the appellant’s
4-month delay in filing his petition for review is significant, notwithstanding his
pro se status. E.g., Dow v. Department of Homeland Security , 109 M.S.P.R. 633,
¶¶ 3, 8 (2008) (finding a delay of more than 1 month to be significant,
notwithstanding the appellant’s pro se status). Although, as noted above, the
appellant alleges that he has been seeking acupuncture treatment, he has not
shown, or alleged, that such treatment precluded him from timely filing a petition
for review or that any other circumstances affected his ability to comply with the
time limit. Therefore, we conclude that the appellant has failed to demonstrate
good cause for the untimeliness of his petition for review.
We deny the appellant’s request to reopen his appeal of OPM’s final decision.
We also consider the appellant’s petition for review as a request to reopen
his withdrawn appeal. Little v. Government Printing Office , 99 M.S.P.R. 292,
¶ 10 (2005). Generally, an appellant’s withdrawal of an appeal is an act of
finality that removes the appeal from the Board’s jurisdiction. Cason v.
Department of the Army , 118 M.S.P.R. 58, ¶ 5 (2012). Absent unusual
circumstances, such as misinformation or new and material evidence, the Board
will not reopen an appeal once it has been withdrawn merely because the
appellant wishes to proceed before the Board or to cure an untimely petition for
review. Id. A case may be reopened in the interests of justice when the evidence
is of such weight as to warrant a different outcome, but the Board will reopen a
case only if the appellant has exercised due diligence in seeking reopening.
Bilbrew v. U.S. Postal Service , 111 M.S.P.R. 34, ¶ 14 (2009). 4
Here, the appellant has not alleged that the withdrawal was against his
directions or without his knowledge. Rather, as noted above, he alleges that he
withdrew his appeal on the basis of the administrative judge’s advice that his
“dispute was with or is with SSA.” PFR File, Tab 1 at 6. He further alleges that
he contacted SSA and that a representative informed him that he has “no recourse
with their agency.” PFR File, Tab 4 at 8-10, 15. Although misinformation may
be a basis to reopen a withdrawn appeal, the appellant has not alleged that the
administrative judge informed him that he had to withdraw his appeal against
OPM in order to pursue an action against SSA or that any such action against
SSA would be favorable. PFR File, Tabs 1, 4. Thus, he has not shown that he
received misinformation sufficient to warrant reopening the appeal. In addition,
he has not provided any evidence that would warrant a different outcome.
Finally, we find that he did not exercise due diligence in seeking reopening, as he
waited 5 months after the initial decision was issued to do so. See Bilbrew,
111 M.S.P.R. 34, ¶ 14 (finding that the appellant did not exercise due diligence
when he waited 2 months after the initial decision was issued file a request to
reopen). Accordingly, we deny the appellant’s request to reopen this appeal.
ORDER
In light of the foregoing, 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 withdrawal of his appeal of
OPM’s September 1, 2017 final decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 10 | Chapman_Terry_R_PH-0841-17-0440-I-1_Final_Order.pdf | 2024-03-18 | TERRY R. CHAPMAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-17-0440-I-1, March 18, 2024 | PH-0841-17-0440-I-1 | NP |
2,049 | https://www.mspb.gov/decisions/nonprecedential/Cable_MarisolNY-0831-22-0117-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARISOL CABLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-22-0117-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
arisol Cable , Pomona, New York, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her request for a lump-sum death benefit under the Civil Service
Retirement System (CSRS) based on the death of her grandfather. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
On petition for review, the appellant does not dispute, and we discern no
reason to disturb, the administrative judge’s finding that she failed to prove her
entitlement to the lump-sum death benefit by preponderant evidence. Instead, she
appears to argue that the Board should order OPM to pay her the lump-sum death
benefit because her mother, the designated beneficiary, is unable to be reached.
Petition for Review File, Tab 1 at 3. She further argues that she submitted a
notarized document “stating that all benefits should be delegated to [her]” and
that it makes no sense to have money that she is owed sit in an account for 30
years. Id.
We find the appellant’s arguments provide no reason to disturb the initial
decision because, although they raise equitable concerns, they fail to establish
that she is entitled to a lump-sum death benefit pursuant to the order of
precedence set forth at 5 U.S.C. § 8342(c). Initial Appeal File, Tab 9, Initial
Decision (ID) at 3; see Murphy v. Office of Personnel Management , 103 M.S.P.R.
431, ¶ 17 (2006) (observing that the Board cannot order OPM to pay lump-sum
death benefits based on equitable principles when the statutory conditions for2
payment have not been met); see also Landsberger v. Office of Personnel
Management, 50 M.S.P.R. 13, 16-17 (1991) (finding that 5 U.S.C. § 8342(c) does
not afford OPM or the Board any discretion to award benefits to someone other
than the properly designated beneficiary), aff’d, 956 F.2d 1174 (Fed. Cir. 1992)
(Table).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cable_MarisolNY-0831-22-0117-I-1_Final_Order.pdf | 2024-03-18 | MARISOL CABLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-22-0117-I-1, March 18, 2024 | NY-0831-22-0117-I-1 | NP |
2,050 | https://www.mspb.gov/decisions/nonprecedential/Bourland_Pamela_M_DA-0831-19-0049-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA M. BOURLAND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-19-0049-I-1
DATE: March 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
P
amela M. Bourland , Heber Springs, Arkansas, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her retirement annuity appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
On October 26, 2018, the appellant filed an appeal with the Board
contesting her ineligibility for a retirement annuity. Initial Appeal File (IAF),
Tab 1 at 3. The appellant explained that she received a letter from the Office of
Personnel Management (OPM) informing her that she was not entitled to an
annuity because she had received a refund of her retirement contributions;
however, the appellant did not provide a copy of this letter. Id. at 4. The
appellant did not request a hearing on the matter. Id. at 2.
The administrative judge issued an order explaining that the Board’s
jurisdiction over retirement matters under the Civil Service Retirement System
(CSRS) does not vest until OPM has issued a final decision. IAF, Tab 2 at 2.
The administrative judge advised that her appeal would be dismissed unless she
amended her appeal to show a final decision had been issued. Id. He ordered the
appellant to file evidence and argument as to why the Board has jurisdiction over
the matter. Id. The appellant did not respond to this order.
Thereafter, on December 6, 2018, OPM filed a motion requesting that the
appeal be dismissed. IAF, Tab 6 at 4-5, Tab 7 at 4-5. OPM contended that the
Board lacked jurisdiction over the matter because it had not issued either an
initial or final decision pertaining to the appellant’s retirement benefits. IAF,
Tab 6 at 4, Tab 7 at 4.
Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID). He specifically found that, because the appellant had failed to
adduce evidence of a final decision from OPM, she had failed to establish Board
jurisdiction over her appeal by preponderant evidence. ID at 2-3.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response. In her petition for review, the
appellant contends that she is entitled to retirement benefits and explains that she
was unable to view any Board filings due to technical issues. Id. at 2-4. The
3
appellant also provides new documentation, to include a final decision letter from
OPM dated October 22, 2018.2 Id. at 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board generally has jurisdiction over the agency’s
determinations affecting an appellant’s rights or interests under the retirement
system only after OPM has issued a final decision on the matter. See McNeese v.
Office of Personnel Management , 61 M.S.P.R. 70, 73 -74, aff’d, 40 F.3d 1250
(Fed. Cir. 1994). Board regulations require that any such appeal therefrom be
filed no later than 30 days after the effective date, if any, of the action being
appealed, or 30 days after the date of receipt of the agency’s decision, whichever
is later. 5 C.F.R. § 1201.22(b).
For the first time on review, the appellant provides an October 22, 2018
final decision letter from OPM. PFR File, Tab 1 at 5-6. The decision informs the
appellant that she is ineligible for CSRS annuity benefits because she received a
refund of her retirement deductions in 1991. Id. at 5. The appellant implies that
she did not submit this letter prior to the close of the record due to technical
difficulties with e -Appeal Online. Id. at 2. Specifically, she avers that she was
unable to view any case filings through the e-Appeal Online system. Id.
The Board generally will not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the record closed
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980); 5 C.F.R. § 1201.115(d). We find the appellant’s assertions
regarding her technical difficulties with the e-Appeal Online system unavailing.
2 The appellant also provides a new appeal form wherein she requests a hearing on the
matter “[i]f needed.” PFR File, Tab 1 at 7.
4
As a registered e-filer, the appellant consented to accept electronic service of
pleadings filed by other registered e-filers and documents issued by the Board.
IAF, Tab 1 at 2; see 5 C.F.R. § 1201.14(e)(1) (2018). Despite her apparent
technical issues, she did not withdraw her registration as an e-filer prior to
issuance of the initial decision. See 5 C.F.R. § 1201.14(e)(4) (2018). Moreover,
there is no indication that she requested technical assistance or informed the
Board of her issues prior to the close of the record. See 5 C.F.R. § 1201.14(j)(2)
(2018) (explaining that, if the Board is advised of the non-delivery of electronic
pleadings, it will attempt to redeliver and, if that is unsuccessful, will deliver by
postal mail or other means).
Nevertheless, in retirement annuity cases, the paramount concern is
whether the appellant is entitled to the benefit she seeks. Moore-Meares v. Office
of Personnel Management , 105 M.S.P.R. 613, ¶ 8 (2007); Edney v. Office of
Personnel Management , 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the
competing interests of agency management and employee rights involved in a
disciplinary appeal, there is only one primary interest involved in a retirement
appeal, that of the applicant’s entitlement under law to a benefit). Here, the
documents submitted on review suggest that the appellant timely appealed OPM’s
final decision pertaining to her eligibility for CSRS annuity benefits to the Board.
IAF, Tab 1; PFR File, Tab 1 at 5; see 5 C.F.R. § 1201.22(b) . The documents
further suggest that OPM issued the subject final decision approximately
2 months prior to December 6, 2018, when the agency indicated via motion that
neither an initial nor a final decision had been issued. IAF, Tab 6 at 4, Tab 7
at 4; PFR File, Tab 1 at 5. As noted, OPM did not respond to the appellant’s
petition for review. In these circumstances, we find it appropriate to remand this
appeal for further adjudication based on the evidence provided with the
appellant’s petition for review. See 5 C.F.R. § 1201.115(e).
5
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. | Bourland_Pamela_M_DA-0831-19-0049-I-1_Remand_Order.pdf | 2024-03-18 | PAMELA M. BOURLAND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-19-0049-I-1, March 18, 2024 | DA-0831-19-0049-I-1 | NP |
2,051 | https://www.mspb.gov/decisions/nonprecedential/Lewis_John_M_DE-0845-18-0373-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN M. LEWIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-18-0373-I-1
DATE: March 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
John M. Lewis , El Mirage, Arizona, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the Office of Personnel Management (OPM)’s
overpayment decision as withdrawn. 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 Denver Field Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
On July 30, 2018, the appellant filed a Board appeal challenging OPM’s
decision to offset a portion of his annuity under the Federal Employees’
Retirement System (FERS) in order to collect an overpayment. Initial Appeal
File (IAF), Tab 1. On his appeal form, the appellant stated that he received a
preliminary decision from OPM on April 2, 2018, that he filed a request for
reconsideration on May 2, 2018, and that as of the date of the appeal, he had not
received a reply to his reconsideration request. Id. at 4. The appellant
subsequently sent an email to a Board email account stating that he had received a
letter from the agency informing him that it no longer intended to offset his
annuity to collect the overpayment, and as a result, he saw “no point in going
forward with the appeal, unless they decide to reopen this matter at some later
time.” IAF, Tab 2 at 1.
On August 1, 2018, the administrative judge issued an acknowledgment
order in which he summarized the above events, and concluded that it appeared
that the appellant desired to withdraw his appeal. Id. In the order, the
administrative judge informed the appellant that the withdrawal of an appeal is an
act of finality, and that once the appeal was dismissed as withdrawn, the appellant
would relinquish his right to refile his appeal. Id. at 1-2. The order stated that, if
the appellant intended to withdraw his appeal, he would not need to take any
further action and the appeal would be dismissed as withdrawn 14 days later, on
August 15, 2018. Id. at 2. If he wished to proceed with his appeal, the
administrative judge ordered the appellant to file a statement indicating so prior
to August 15, 2018. Id. After the appellant failed to respond, the administrative
judge issued an initial decision dismissing the appeal as withdrawn. IAF, Tab 4,
Initial Decision (ID) at 1-2.
3
The appellant timely filed a petition for review in which he expresses
concern that OPM may continue to pursue the overpayment offset, and requests
that his “appeal rights be reinstated.” Petition for Review (PFR) File, Tab 1. The
agency has filed a response in opposition to the petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
When an appellant directly petitions the full Board for review of an initial
decision dismissing an appeal as withdrawn, the Board will treat the petition as a
request to reopen his appeal. Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486,
¶¶ 9-13 (2010). Ordinarily, an appellant’s withdrawal of an appeal is an act of
finality that removes the appeal from the Board’s jurisdiction. Id., ¶ 7. A
voluntary withdrawal must be clear, decisive, and unequivocal. Id. Absent
unusual circumstances, such as if the appellant received misinformation or was
under mental distress at the time of withdrawal, or presents new and material
evidence on review, the Board will not reinstate an appeal once it has been
withdrawn. Id., ¶ 9; Auyong v. Department of the Navy , 97 M.S.P.R. 267, ¶ 4
(2004).
In dismissing the appeal as withdrawn, the administrative judge determined
that, while the email itself was not part of the Board record, based on the
appellant’s statements in the email expressing an interest in withdrawing, as well
as the appellant’s failure to respond to the order, the appellant’s inaction
manifested a knowing and voluntary intention to withdraw his appeal. See ID
at 2. We disagree. In expressing an interest in withdrawing his appeal, the
appellant used conditional language, stating that he did not see any point in
moving forward with his appeal, “unless [OPM] decide[s] to reopen this matter at
some later time.” IAF, Tab 2 at 1. Such an expression is predicated on the belief
that he could refile his appeal, suggesting that the appellant did not understand
that withdrawal is an act of finality. Id.; see Rose v. U.S. Postal Service ,
4
106 M.S.P.R. 611, ¶ 12 (2007) (finding that the appellant’s request to withdraw
was not unequivocal when he based his withdrawal on certain conditions).
Additionally, the administrative judge dismissed the appeal as withdrawn based
solely on the appellant’s inaction and his failure to timely respond to the order,
rather than in response to an affirmative statement unequivocally confirming that
it was his intent to withdraw his appeal.
Based on the existing record, and considering the appellant’s pro se status,
we cannot conclude that the appellant’s failure to respond to the administrative
judge’s order is the kind of clear, unequivocal, and decisive action necessary to
effectuate the withdrawal of an appeal . See Ramos v. Office of Personnel
Management, 82 M.S.P.R. 65, ¶ 7 (1999) (finding that the appellant’s mere
acquiescence to statements made by the administrative judge were not the kind of
clear and unequivocal statement necessary to effect a withdrawal).
A question remains whether the Board has jurisdiction over this appeal.
As the administrative judge observed, and as the appellant appears to have
conceded, at the time the appellant filed his Board appeal, he had not yet received
a response from OPM regarding his reconsideration request, and thus, it appears
that OPM had not yet issued a final decision on his reconsideration request. See
IAF, Tab 1 at 4; ID at 1 n.1. The Board generally has jurisdiction over OPM
determinations affecting an appellant’s rights or interests under FERS only after
OPM has issued a final decision. McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). However,
because the administrative judge did not apprise the appellant of his jurisdictional
burden, the appellant never received notice of what he was required to show in
order to prove Board jurisdiction over his appeal. On remand, the administrative
judge should permit the parties the opportunity to address the jurisdictional issue
5
and, if appropriate, issue an initial decision dismissing the appeal for lack of
jurisdiction.2
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.
2 If, on remand, the administrative judge dismisses the appeal for lack of jurisdiction
because OPM has not issued a final decision, the appellant is advised that he would be
entitled to file a new Board appeal of any subsequent final decision issued by OPM on
this overpayment matter. See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. Any future
appeal must be filed within the time limits set forth in the Board’s regulations. See
5 C.F.R. § 1201.22(b)(1). | Lewis_John_M_DE-0845-18-0373-I-1_Remand_Order.pdf | 2024-03-18 | JOHN M. LEWIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-18-0373-I-1, March 18, 2024 | DE-0845-18-0373-I-1 | NP |
2,052 | https://www.mspb.gov/decisions/nonprecedential/Smith_JanetNY-0831-18-0042-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET SMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-18-0042-I-1
DATE: March 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
J
anet Smith , Brooklyn, New York, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision denying the
appellant’s application for a deferred Civil Service Retirement Systems (CSRS)
annuity. For the reasons discussed below, we GRANT OPM’s petition for
review. We AFFIRM the initial decision in part, as MODIFIED, still
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REVERSING OPM’s reconsideration decision and finding that the appellant
proved her nonreceipt of a refund for $1,028.12 in retirement deductions. We
VACATE the initial decision, in part, as to its determination that the appellant is
entitled to a CSRS annuity and REMAND this case to OPM for a reconsideration
decision on the issue of the appellant’s annuity entitlement.
BACKGROUND
The appellant worked for the Department of the Navy in a career position
from July 20, 1986, to June 30, 1994. Initial Appeal File (IAF), Tab 1 at 2,
11-12, Tab 7 at 22-25, 29.2 In November 1994, she applied for a refund of her
CSRS retirement deductions. IAF, Tab 7 at 35-36. One month later, OPM
authorized a payment of $1,028.12, to reimburse the appellant for her deductions
from October 12, 1986, to June 30, 1994. Id. at 8, 21-23.
In February 1996, the appellant wrote to the Defense Financing and
Accounting Service (DFAS) to obtain information regarding her payment. IAF,
Tab 1 at 14, Tab 12, Hearing Compact Disc (HCD) at 11:50-12:00 (testimony of
the appellant). In March 1996, OPM wrote to the appellant that it could not
“authorize a refund of [her] retirement deductions” because her application was
more than a year old. IAF, Tab 7 at 34. The appellant submitted a second
application in April 1996. Id. at 29-33. Later that month, OPM paid the
appellant $9.49, representing her deduction for the earlier service period of
July 20 to October 11, 1986. Id. at 20, 24-25.
In 2003, the appellant asked OPM for information as to the 1994 refund.
Id. at 18. OPM provided her with a copy of her application and individual
retirement record (IRR), but because the payment was “older than 6 years and 7
2 The appellant’s employing agency is referred to in various records as the Department
of the Navy and the Department of Defense. E.g., IAF, Tab 1 at 12-13, Tab 7 at 22,
24-25, 29. For purposes of this decision, we will refer to her employing agency as the
Navy. The appellant also had an initial period of employment with this agency in a
temporary position, which is not at issue in this appeal. IAF, Tab 7 at 24. Also not at
issue in this appeal is her employment with the U.S. Postal Service, for which she also
applied for a refund of her retirement deductions. Id. at 37-40. 2
months,” referred her to the Department of Treasury for information as to her
payment. Id. The appellant wrote to the Department of the Treasury in August
2003, but did not receive a response. Id. at 17; HCD at 10:13-10:21 (testimony of
the appellant).
In late 2017, the appellant submitted an application for a deferred
retirement annuity, seeking a CSRS annuity for her employment with the Navy.
IAF, Tab 7 at 10-16. OPM issued a reconsideration decision on November 29,
2017, denying her request because of the prior refund of $1,028.12. Id. at 8-9. It
did not mention the subsequent refund of $9.49. Id. The appellant filed the
instant appeal, asserting that she was entitled to both a severance from the Navy
and an annuity from OPM. IAF, Tab 1 at 3. She denied receiving the payment of
$1,028.12. Id. at 5. She also disputed that the payment would have been
sufficient to refund her deductions. Id.
After holding a telephonic hearing, the administrative judge issued an
initial decision reversing OPM’s reconsideration decision. IAF, Tab 13, Initial
Decision (ID) at 1-2, 6. She explained that the Board does not have jurisdiction
over the alleged nonpayment of a severance. ID at 1 n.1. As to the appellant’s
refund of her deductions, the administrative judge determined that the appellant
received the payment of $9.49. ID at 2 n.2. However, she concluded that the
appellant met her burden to prove that she did not receive the payment of
$1,028.12. ID at 3-6. Therefore, she found that the appellant was entitled to an
annuity. ID at 6.
On review, OPM continues to argue that the appellant received the
$1,028.12 payment. IAF, Tab 7 at 5-6; Petition for Review (PFR) File, Tab 1
at 14-17. It further asserts that, even if she did not receive this refund payment,
she is only entitled to the refund, and not an annuity. PFR File, Tab 1 at 17-19.
The appellant has not responded to the agency’s petition for review.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant met her burden to
show nonreceipt of the payment.
The parties do not dispute that the appellant received a payment of $9.49.3
HCD at 15:17-15:20 (testimony of the appellant). However, the agency disagrees
with the administrative judge’s determination that the appellant did not receive
the payment of $1,028.12. PFR File, Tab 1 at 14-17. We agree with the
administrative judge that the appellant proved nonreceipt. ID at 3-5.
The appellant bears the burden to prove her entitlement to a retirement
annuity by preponderant evidence. Rint v. Office of Personnel Management ,
48 M.S.P.R. 69, 71, aff’d per curiam , 950 F.2d 731 (Fed. Cir. 1991) (Table). An
individual’s receipt of retirement deductions for a period of service generally
voids her right to a retirement annuity for that period absent a redeposit of those
deductions. 5 U.S.C. §§ 8334(d)(1), 8342(a); Rint, 48 M.S.P.R. at 72; 5 C.F.R.
§§ 831.112(a), 831.303(b). Thus, at a minimum, the appellant must prove by
preponderant evidence that she did not receive the payment in question. Rint,
48 M.S.P.R. at 71.
The Board has held that normal office records, compiled in the ordinary
course of business, are admissible and are entitled to substantial weight. Id.
at 72. Further, OPM is not required to produce definitive proof of an appellant’s
actual receipt of payment, such as a cancelled Treasury check, when its ability to
produce such evidence is impaired by an appellant’s lengthy delay in raising her
claim of nonpayment. Sosa v. Office of Personnel Management , 76 M.S.P.R. 683,
686 (1997); DeLeon v. Office of Personnel Management , 49 M.S.P.R. 369, 373
(1991). In such circumstances, the Board has found that OPM’s record of an
appellant’s application for a refund, combined with records reflecting that it
authorized payment, is sufficient to establish that the appellant received the
3 In addition, they do not assert that the Board has jurisdiction over the alleged
nonpayment of a severance. We decline to disturb the administrative judge’s finding
that it does not.4
refund. DeLeon, 49 M.S.P.R. at 372 -73; Rint, 48 M.S.P.R. at 72. Such records
give rise to an inference that a refund was made accordingly. See Danganan v.
Office of Personnel Management , 55 M.S.P.R. 265, 269 (1992) (finding an IRR
reflecting the amount of the refund payment was persuasive evidence that the
payment was made), aff’d per curiam , 19 F.3d 40 (1994) (Table). However, the
Board will not infer receipt if an appellant placed OPM on notice that there was a
question as to her receipt of the refund within a period of time such that OPM
could have ascertained whether any mailed check had been negotiated, or
cancelled any issued check and issued a new check order. See Manoharan v.
Office of Personnel Management , 103 M.S.P.R. 159, ¶¶ 16-18 (2006)
(distinguishing from DeLeon, Rint, and Sosa because the appellants in those
appeals waited between 22 and 32 years before bringing their alleged nonreceipt
of funds to OPM’s attention, while the appellant in Manoharan waited less than
4 months).
The administrative judge credited the appellant’s testimony that she never
received the refund of $1,028.12. ID at 4. Although she concluded that OPM’s
business records created an inference of receipt of the payment, she found that the
appellant’s testimony outweighed this evidence. We agree that OPM’s business
records, compiled in the ordinary course of business, are entitled to substantial
weight. DeLeon, 49 M.S.P.R. at 372. However, we decline to infer that the
appellant received the refund payment based on OPM’s submission of the IRR
and voucher request. As discussed above, this inference arises when OPM would
be unduly prejudiced were we to require it to provide more definitive proof of the
appellant’s actual receipt of the check due to the passage of time. DeLeon,
49 M.S.P.R. at 373; see Manoharan, 103 M.S.P.R. 159, ¶ 18. Although OPM
argues that the appellant “affirmatively” raised her claim of nonpayment for the
first time in her Board appeal, it admits that she made an inquiry about it in
April 2003. PFR File, Tab 1 at 9 -10, 14-15. We conclude that her April 2003
inquiry, made less than 10 years after OPM allegedly paid the appellant, should5
have provided OPM with sufficient notice to ascertain whether the check was
negotiated or cancel and issue a new check. PFR File, Tab 1 at 14-15; see
Manoharan, 103 M.S.P.R. 159, ¶ 16 (observing that, per OPM, Treasury retains
copies of cancelled checks for up to 10 years). Instead of doing so, OPM referred
the appellant to Treasury. IAF, Tab 7 at 18. Although the appellant inquired
with Treasury, she testified that she received no response. IAF, Tab 7 at 17,
Tab 12, HCD at 10:13-10:21 (testimony of the appellant).
OPM also disputes the administrative judge’s finding that the appellant’s
letter to DFAS in February 1996 and OPM’s March 1996 request that she submit
a new refund application support a finding that OPM did not make the earlier
payment of $1,208.12. PFR File, Tab 1 at 16 -17; ID at 4-5. We agree and
modify the initial decision to the extent that the administrative judge relied on
this correspondence. ID at 5. In making this finding, the administrative judge
mistakenly found that the $9.49 payment was for retirement deductions associated
with service in a different agency. ID at 2 & n.2. However, as discussed above,
the $1,028.12 and $9.49 payments covered two portions of the appellant’s
continuous employment with the Navy. IAF, Tab 7 at 20-25. Assuming that
OPM received the appellant’s February 1996 inquiry from DFAS, it appears
likely that it believed the matter was resolved after it requested and received a
new application from the appellant and paid her $9.49 in April 1996, to cover
deductions during the remainder of her employment with the Navy. Id. at 29-34.
Thus, we agree with the administrative judge’s finding that the appellant
proved nonreceipt of her refund payment, but modify her reasoning as discussed
above. We affirm the administrative judge’s reversal of OPM’s reconsideration
decision.6
We vacate the administrative judge’s finding that the appellant is entitled to
annuity benefits and remand this issue to OPM for issuance of a new
reconsideration decision.
OPM argues that, if the appellant did not receive her refund payment, the
most she is entitled to is a new payment. PFR File, Tab 1 at 17-18. It also asserts
that she should have been placed in the CSRS “interim plan” effective July 20,
1986, and the CSRS Offset plan effective January 1, 1987. Id. at 7 n.1. We find
that these issues are not properly before us, and vacate the administrative judge’s
finding that the appellant is entitled to an annuity. ID at 6. We remand this
matter to OPM for issuance of a new reconsideration decision that addresses the
appellant’s rights and benefits in light her nonreceipt of the $1,028.12 payment.
The Board generally has jurisdiction over an OPM determination on the
merits of a matter affecting the rights or interests of an individual under CSRS
only after OPM has issued a reconsideration decision. 5 U.S.C. § 8347(d)(1);
Hasanadka v. Office of Personnel Management , 116 M.S.P.R. 636, ¶ 19 (2011);
5 C.F.R. § 831.110. Because OPM has not yet considered the impact of the
appellant’s nonreceipt of the $1,028.12 payment on her entitlement to a
retirement annuity or issued a reconsideration decision in light of this finding, the
Board currently lacks jurisdiction to consider this issue. See Cooper v. Office of
Personnel Management , 43 M.S.P.R. 458, 460-61 (1990) (finding that OPM erred
in determining that an appellant was barred by statute from receiving survivor
annuity for her ex-husband’s service, and remanding for OPM to address whether
a subsequent spouse had a superior right to the annuity).
For the reasons discussed above, we REMAND this appeal to OPM for
further adjudication in accordance with this Remand Order.
ORDER
We ORDER the agency to issue a new reconsideration decision addressing
whether the appellant’s nonreceipt of the $1,028.12 payment entitles her to an
annuity or a reimbursement payment. In doing so, OPM shall calculate the7
amount of any monthly annuity or lump-sum payment. OPM shall issue the new
reconsideration decision within 60 calendar days from the date of this Remand
Order and shall advise the appellant of her right to file an appeal with the New
York Field Office if she disagrees with that new decision. Ott v. Office of
Personnel Management , 120 M.S.P.R. 453, ¶ 9 (2013).
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. The appellant shall provide all necessary
information OPM requests to help it carry out this Remand 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
New York Field Office if she believes that OPM did not fully carry out the
Board’s Order. The petition should contain specific reasons why the appellant
believes that the agency has not fully carried out the Board ’s Order, and should
include the dates and results of any communications with the agency. 5 C.F.R.
§ 1201.182(a).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Smith_JanetNY-0831-18-0042-I-1_Remand_Order.pdf | 2024-03-18 | JANET SMITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-18-0042-I-1, March 18, 2024 | NY-0831-18-0042-I-1 | NP |
2,053 | https://www.mspb.gov/decisions/nonprecedential/Merkwan_Johnathan_DE-0752-23-0009-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHNATHAN E. MERKWAN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
DE-0752-23-0009-I-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ohnathan E. Merkwan , Harrisburg, South Dakota, pro se.
Chad M. Troop , 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
dismissed his appeal for lack of jurisdiction because the appellant failed to
nonfrivolously allege that he was ever employed by the agency named in the
appeal or that the agency took an appealable action against him. On petition for
review, the appellant again has failed to make any such nonfrivolous allegations.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
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 | Merkwan_Johnathan_DE-0752-23-0009-I-1_Final_Order.pdf | 2024-03-18 | JOHNATHAN E. MERKWAN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. DE-0752-23-0009-I-1, March 18, 2024 | DE-0752-23-0009-I-1 | NP |
2,054 | https://www.mspb.gov/decisions/nonprecedential/Coates_Terri_D_DC-0752-16-0369-C-1_DC-0752-16-0369-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRI DEVON COATES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-16-0369-C-1
DC-0752-16-0369-X-1
DATE: March 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Hugh Bonk , Silver Spring, Maryland, for the appellant.
Jasmin A. Dabney , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In an August 28, 2023 Order, the Board affirmed, with modifications, the
administrative judge’s compliance initial decision finding the agency in
noncompliance with the February 23, 2017 initial decision in the underlying
appeal, which accepted the parties’ settlement agreement into the record for
enforcement. Coates v. U.S. Postal Service , MSPB Docket No. DC-0752-16-
0369-C-1, Order (C-1 Order) (Aug. 28, 2023); Compliance 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 (CPFR), Tab 10; Coates v. U.S. Postal Service , MSPB Docket No. DC-0752-
16-0369-I-1, Initial Decision (ID) (Feb. 23, 2017); Initial Appeal File, Tab 27.
We JOIN MSPB Docket Nos. DC -0752-16-0369-C-1 and DC-0752-16-0369-X-1
for processing, and for the reasons discussed below, we now find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On February 23, 2017, the administrative judge issued an initial decision
accepting the parties’ settlement agreement into the record for enforcement and
dismissing the appeal as settled. ID at 1-2. On June 7, 2018, the appellant filed a
petition for enforcement, contending that the agency had failed to pay her in the
manner specified in the settlement agreement. Coates v. U.S. Postal Service ,
MSPB Docket No. DC-0752-16-0369-C-1, Compliance File (CF), Tab 1 at 5. On
July 16, 2018, the administrative judge issued a compliance initial decision
finding that the agency had breached the settlement agreement and ordering it to
pay the appellant the full amount it owed her. CF, Tab 5, Compliance Initial
Decision.
The agency filed a petition for review of the compliance initial decision,
which the Board denied on August 28, 2023. CPFR File, Tab 1; C-1 Order, ¶ 1.
The Board held that the agency was required to pay the appellant the outstanding
amount in the manner specified in the settlement agreement (unmodified by the
subsequent addendum to that agreement, which the Board found invalid).
C-1 Order, ¶¶ 18-21. The Board docketed a separate compliance referral
proceeding, MSPB Docket No. DC-0752-16-0369-X-1, and instructed the agency
to file evidence of compliance under that docket number. Id.
The agency has not filed any evidence of compliance. However, on
January 26, 2024, the appellant filed a submission stating that the agency had
paid her “as ordered in the Board’s August 28, 2023 Order.” Coates v. U.S.2
Postal Service, MSPB Docket No. DC-0752-16-0369-X-1, Compliance Referral
File (CRF), Tab 2 at 2.
ANALYSIS
A settlement agreement is a contract, and the appellant, as the
non-breaching party, bears the burden to prove “material non -compliance” with a
term of the contract. Lutz v. U.S. Postal Services , 485 F.3d 1377, 1381 (Fed. Cir.
2007). The agency must produce relevant and material evidence of its
compliance with the agreement. Haefele v. Department of the Air Force ,
108 M.S.P.R. 630, ¶ 7 (2008). Upon proving a material breach of the contract,
the appellant may choose between specific performance or rescission of the
settlement agreement. Sanchez v. Department of Homeland Security ,
110 M.S.P.R. 573, ¶ 7 (2009); Powell v. Department of Commerce , 98 M.S.P.R.
398, ¶ 14 (2005).
Here, although the agency did not file evidence of compliance as the Board
ordered it to do, the appellant stated that she received the outstanding amount.
CRF, Tab 2 at 2. Specifically, we interpret her statement that the agency paid her
“as ordered in the Board’s August 28, 2023 Order” as agreeing that the agency
has complied with the order and, thus, with its obligations under the settlement
agreement as set forth in that order.
Accordingly, we find the agency in compliance, dismiss the petition for
enforcement, and close the related petition for review of the compliance initial
decision. This is the final decision of the Merit Systems Protection Board in
these compliance proceedings. Title 5 of the Code of Federal Regulations,
section 1201.183(c)(1) (5 C.F.R. § 201.183(c)(1)).3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with 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.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. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Coates_Terri_D_DC-0752-16-0369-C-1_DC-0752-16-0369-X-1_Final_Order.pdf | 2024-03-18 | TERRI DEVON COATES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-16-0369-C-1, March 18, 2024 | DC-0752-16-0369-C-1 | NP |
2,055 | https://www.mspb.gov/decisions/nonprecedential/Rodgers_Crystal_N_SF-0752-22-0229-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL N. RODGERS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-22-0229-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Keith Reid , Esquire, Virginia Beach, Virginia, for the appellant.
Alexander R. Rivera , Esquire, 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
affirmed her 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to discuss both the appellant’s affirmative defense of retaliation for
engaging in equal employment opportunity (EEO) activity and the agency’s
consideration of the appellant’s length of service in its penalty determination, we
AFFIRM the initial decision.
The appellant has not challenged the administrative judge’s finding that the
agency met its burden of proof as to its charges.2 Petition for Review (PFR) File,
Tab 1. On review, she has reasserted her argument that the agency improperly
subjected her to double punishment by placing her on an emergency suspension
and later removing her. Id. at 10-15. Although an agency cannot punish
an employee twice for the same conduct, Adamek v. U.S. Postal Service ,
2 The appellant argues that “the safety talks from July 2021 to September 2021 should
[not] have been part of [the] discipline” because she was on leave during that time.
Petition for Review File, Tab 1 at 9. To the extent the agency relied on those safety
talks to sustain its charges against the appellant, this was erroneous because they
occurred after the misconduct. Initial Appeal File (IAF), Tab 5 at 23-24. However, any
error was harmless because, as discussed by the administrative judge, the appellant was
on notice of the agency’s policy at the time of the misconduct. IAF, Tab 30, Initial
Decision at 2-4, 17-19 (summarizing the agency’s safety briefings between April and
December 2020, noting the letter of reprimand issued to the appellant, which explicitly
put her on notice of the agency’s policy at issue in this appeal, and recognizing the
multiple instructions given to the appellant regarding the agency’s policy before the
misconduct occurred); 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).
3
13 M.S.P.R. 224 (1982), we agree with the administrative judge, for the reasons
stated in the initial decision, that the appellant was not punished twice for the
same offense and, therefore, she cannot prevail in her double punishment
argument, Initial Appeal File (IAF), Tab 30, Initial Decision (ID) at 33-39. In
this case, the agency did not consider the emergency suspension to be in lieu of
the contemplated discipline. IAF, Tab 22 at 5. The emergency suspension had a
different basis than the removal, ID at 35-39, and because the Board lacks
jurisdiction over suspensions of 14 days or less, 5 U.S.C. § 7512, we are
precluded from deciding if the emergency suspension was improper. See Bradley
v. U.S. Postal Service , 96 M.S.P.R. 539, ¶ 12 (2004) (holding that whether an
emergency placement in off-duty status and a subsequent adverse action
constitute double punishment turns on the question of whether the reason for the
two actions was the same); see also Harrison v. U.S. Postal Service , 26 M.S.P.R.
37, 38-39 (1985).
Although not explicitly raised by the appellant on review, we address two
other matters in this order. First, in analyzing the appellant’s retaliation
affirmative defense, the administrative judge identified the legal standard set
forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled
in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-25, she discussed the various methods of direct and circumstantial
evidence, and she implicitly found that the appellant did not prove that retaliation
was a motivating factor in the removal decision. ID at 30-32. The Board has
since overruled Savage to the extent it held that the McDonnell Douglas
framework is not applicable to Board proceedings. Pridgen, 2022 MSPB 31,
¶ 25. Nonetheless, the outcome of this appeal under Pridgen would be the same
as that arrived at by the administrative judge. Notably, under Pridgen, the
appellant must still show that the prohibited consideration of the appellant’s EEO
activity was at least a motivating factor in the agency’s decision to remove her,
4
id., ¶¶ 20-22, 30, and we agree with the administrative judge’s implicit finding
that the appellant failed to make this showing, ID at 30-32.
Second, the agency, in its consideration of the penalty factors enumerated
in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981), appears to have
used the appellant’s 21 years of service as an aggravating factor, reasoning that
the misconduct should not have occurred based on the appellant’s considerable
experience with the agency. IAF, Tab 1 at 16. The Board has not endorsed this
approach. See Shelly v. Department of the Treasury , 75 M.S.P.R. 677, 684 (1997)
(disagreeing with the agency’s position that the appellant’s length of service was
an aggravating factor because a longtime employee “should have known better”
and, instead, considering the appellant’s 23 years of service as a mitigating
factor). However, we find that this error is harmless because, as set forth in the
initial decision, on the whole, the Douglas factors support a finding that removal
was a reasonable penalty. ID at 42-45; 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).
We have considered the appellant’s remaining arguments on review but
conclude that they provide no 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 references, and made reasoned conclusions on issues of
credibility).3 We therefore deny the petition for review and affirm the initial
decision as modified.
3 We have not considered the appellant’s argument, raised for the first time on review,
that the agency violated her due process rights by failing to conduct an adequate
investigation into her misconduct because she has not established that it is based on new
evidence that was unavailable prior to the close of the record despite her due diligence.
PFR File, Tab 1 at 9, 14; see Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980).
5
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.
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.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.
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. | Rodgers_Crystal_N_SF-0752-22-0229-I-1 Final Order.pdf | 2024-03-15 | CRYSTAL N. RODGERS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-22-0229-I-1, March 15, 2024 | SF-0752-22-0229-I-1 | NP |
2,056 | https://www.mspb.gov/decisions/nonprecedential/Hargus_Carl_E_CH-0752-18-0211-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL E. HARGUS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0211-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
arl E. Hargus , Florissant, Missouri, pro se.
Hannah C. Brothers and Heather L. McDermott , Chicago, Illinois, 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 appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the agency 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
We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective February 2, 2018 . See Kerr v. National Endowment for
the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
3
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE 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.
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 | Hargus_Carl_E_CH-0752-18-0211-I-1_Final_Order.pdf | 2024-03-15 | CARL E. HARGUS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0211-I-1, March 15, 2024 | CH-0752-18-0211-I-1 | NP |
2,057 | https://www.mspb.gov/decisions/nonprecedential/Ervin_Michael_W_SF-0752-17-0722-X-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL W. ERVIN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-17-0722-X-1
DATE: March 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Mary DiGioia , Bellflower, California, for the appellant.
Catherine V Meek , Long Beach, California, for the agency.
Roderick D Eves , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER TO SHOW CAUSE
¶1On September 25, 2017, the appellant appealed his removal from the
position of Manager, Customer Service, to the Board. Ervin v. U.S. Postal
Service, MSPB Docket No. SF-0752-17-0722-I-1, Initial Appeal File (IAF),
Tab 1. On December 3, 2018, the administrative judge issued an initial decision
mitigating the appellant’s removal to a demotion to the position of Supervisor,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Customer Service. IAF, Tab 30, Initial Decision (ID) at 14. The administrative
judge ordered the agency to cancel the appellant’s removal and substitute in its
place a demotion to the position of Supervisor, Customer Service; and to pay the
appellant the appropriate amount of back pay, with interest, as well as to adjust
the appellant’s benefits with appropriate credits and deductions. ID at 14-15.
That initial decision became the final decision of the Board on January 7, 2019,
after neither party petitioned the full Board for review. ID at 16-17.
¶2On March 18, 2019, the appellant filed a petition for enforcement of the
Board’s Order, alleging that the agency had not yet returned him to work. Ervin
v. U.S. Postal Service , MSPB Docket No. SF-0752-17-0722-C-1, Compliance File
(CF), Tab 1 at 3. On May 10, 2019, the administrative judge issued a compliance
initial decision granting the petition for enforcement because the agency failed to
demonstrate that it cancelled the appellant’s removal; placed him in a Supervisor
position; or paid him back pay, interest, and benefits. CF, Tab 5, Compliance
Initial Decision at 4. The administrative judge again ordered the agency to:
(1) cancel the removal and substitute in its place a demotion to the position of
Supervisor, Customer Service; (2) pay the appellant the correct amount of back
pay, interest, and benefits; and (3) inform the Board in writing of all actions taken
to comply with the Board’s Order and the date on which it believes it has fully
complied.
¶3On July 9, 2019, the agency filed a statement of compliance pursuant to
5 C.F.R. §§ 1201.183(a) and 1201.183(a)(6)(ii). Ervin v. U.S. Postal Service ,
MSPB Docket No. SF-0752-17-0722-X-1, Compliance Referral File (CRF),
Tab 3. The agency stated in its response that it believed there was no need to
cancel the appellant’s removal because the removal was never actually
effectuated due to the appellant’s resignation. CRF, Tab 3 at 4. The agency
further stated that it reactivated the appellant’s employment and placed him into a
position as Supervisor, Customer Service, at the Pico Rivera Post Office, where
he reported for the first time on June 24, 2019. Id. The agency finally stated2
that, for the agency to be able to complete the back pay requirement, the appellant
needed to complete the agency’s back pay forms addressing outside employment
and other sources of income. Id. at 5.
¶4On July 22, 2019, the appellant responded to the agency’s proof of
compliance. CRF, Tab 4. The appellant asserted that his new assignment was
farther from his home than his original position, despite similar vacant positions
existing in his original facility. Id. at 11. The appellant further stated that he
submitted the requisite back pay forms to the agency on July 1, 2019. Id.
¶5On June 19, 2020, the Clerk of the Board issued an Order stating that
further evidence from the agency was required before the Board could make a
determination on compliance. CRF, Tab 5 at 2-3. The Clerk of the Board noted
that, as of the date of the Order, the agency had not yet submitted any evidence
demonstrating that all back pay funds have been paid to the appellant, provided
any explanation as to how it chose the appellant’s new position, or stated whether
it cancelled the Standard Form (SF) 50 reflecting the appellant’s retirement. Id.
The Clerk of the Board directed the agency to inform the Board whether all back
pay funds had been paid to the appellant, and if the agency claimed that the back
pay funds had been paid, the agency’s submission was required to include full
details of the back pay calculations and a narrative summary of the payments. Id.
The Clerk of the Board further directed the agency to state whether it had
cancelled the petitioner’s retirement SF-50 and also inform the Board regarding
how it chose the appellant’s new position, including the location, and explain why
the appellant was not returned to his original work location. Id.
¶6On April 23, 2021, the Clerk of the Board issued another Order due to the
agency’s failure to respond to the June 19, 2020 Order. CRF, Tab 6. The
April 23, 2021 Order repeated the June 19, 2020 directive to the agency and also
warned the agency that failure to submit the required information may lead to the
issuance of sanctions against the responsible agency official pursuant to 5 U.S.C.3
§ 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c). Id. at 2. The agency provided no
response to the April 23, 2021 Order.
¶7On September 28, 2022, the Board issued an Order to Show Cause due to
the agency’s failure to respond to the April 23, 2021 Order. CRF, Tab 9. The
Board ordered the agency to submit evidence of compliance and further ordered
Cynthia Garcia, the agency management official identified as responsible for
ensuring the agency’s compliance, to show cause why the Board should not
impose sanctions for the agency’s noncompliance. Id. at 4.
¶8On December 13, 2023, after multiple contact attempts by the Board’s
Office of General Counsel, the agency submitted what it deemed its “Notice of
Compliance.” CRF, Tab 12. In its submission, the agency asserted that it
believed it was in compliance with the Board’s December 3, 2018 Order with
respect to the appellant’s return to employment but also stated that it was still
researching whether appellant had been paid all back pay. Id. at 4-6. The agency
did not, however, respond to the Clerk’s Order that the agency show cause why
Cynthia Garcia should not be sanctioned for the agency’s failure to respond to
previous orders. Id.
¶9Since the agency’s submission of the December 13, 2023 “Notice of
Compliance,” the Board’s Office of General Counsel has made multiple attempts
to contact agency counsel regarding the agency’s efforts at further compliance but
has not received any substantive response from agency counsel of record,
although agency counsel occasionally responded by email to indicate she was in
receipt of these communications and fully aware of the Board’s orders and the
agency’s unfulfilled obligations.
¶10Pursuant to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c), the Board
has authority to impose sanctions against the agency official responsible for
noncompliance with a Board order. Such sanctions may include a ruling adverse
to the agency and certification to the Comptroller General of the United States
that no payment is to be made to certain agency employees found to be in4
noncompliance with the Board’s order. 5 C.F.R. § 1201.183(e). The agency
identified Cynthia Garcia as the agency official charged with complying with the
Board’s Order.2 CRF, Tab 3 at 5.
¶11It has been nearly 5 years since the administrative judge first found the
agency not in compliance, and the agency has put forward minimal effort
demonstrating it has reached full compliance with respect to the appellant’s back
pay. Accordingly, pursuant to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R.
§ 1201.183(c), the agency, Ms. Garcia, and agency counsel, Ms. Catherine Meek,
are hereby DIRECTED TO SHOW CAUSE why sanctions should not be imposed
for the agency’s failure to comply with the Board’s December 3, 2018 Order.
The agency, Ms. Garcia, and Ms. Meek shall submit their written responses
within 21 days of the date of this Order. If no response is filed within this time
frame, the Board will issue an order requiring the agency, Ms. Garcia, and
Ms. Meek to appear in person before the Board at MSPB Headquarters,
Washington, D.C. See 5 C.F.R. § 1201.183(c).
2 In the September 28, 2022 Order, the Board ordered the agency to inform the Board if
Ms. Garcia was no longer the agency official responsible for ensuring compliance.
CRF, Tab 9 at 4. The agency’s December 13, 2023 “Notice of Compliance” did not
respond to the Board’s Order in this regard, and the Board thus presumes Ms. Garcia is
still the correct official. The agency is therefore ORDERED to serve a copy of this
Order upon Ms. Garcia. The agency is further ORDERED to submit proof with its
response that it served a copy of this Order upon Ms. Garcia. Finally, because the
agency’s current representative has repeatedly failed to respond to Board orders and
inquiries from the Board’s Office of General Counsel, this Order is concurrently being
served upon Roderick Eves, MSPB Unit Lead for the agency, in order to ensure that the
agency is fully aware of and responsive to its obligations under this Order.5
¶12The appellant shall file any response to the agency’s, Ms. Garcia’s, and Ms.
Meek’s submissions within 21 days of the date of service of each submission. If
the appellant fails to respond, the Board may assume he is satisfied and dismiss
the petition for enforcement.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Ervin_Michael_W_SF-0752-17-0722-X-1_Order.pdf | 2024-03-15 | MICHAEL W. ERVIN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-17-0722-X-1, March 15, 2024 | SF-0752-17-0722-X-1 | NP |
2,058 | https://www.mspb.gov/decisions/nonprecedential/Aliyu_Sahabo_I_DC-0752-19-0308-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAHABO I. ALIYU,
Appellant,
v.
U.S. AGENCY FOR GLOBAL
MEDIA,1
Agency.DOCKET NUMBER
DC-0752-19-0308-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
M
aurice O. Isaac , Hyattsville, Maryland, for the appellant.
David Kligerman , and H. David Kotz , 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. Generally, we grant petitions such as 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 The agency was formerly known as the Broadcasting Board of Governors.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was an International Broadcaster for Voice of America
(VOA), a component of the agency. Initial Appeal File (IAF), Tab 4 at 10. In
October 2018, the agency proposed to remove the appellant for the prohibited
acceptance of gifts. Id. at 10-17. Following the appellant’s written and oral
response, the agency sustained its proposal to remove him. IAF, Tab 4 at 20-26,
Tab 6 at 8-12.
The event that led to the appellant’s removal involved a visit from the
Governor of the Katsina State of Nigeria to VOA for a radio interview. IAF,
Tab 4 at 10-11. The appellant purchased lunch for the Governor and his staff,
and paid for it himself. Id. at 60-61, 68. As the Governor was leaving, a member
of his staff handed the appellant an envelope containing $5,000. IAF, Tab 4
at 62-63, Tab 11 at 23-25. The appellant passed the envelope to a colleague
without opening it. IAF, Tab 4 at 13, 62-65. The Managing Editor and a
colleague of the appellant’s distributed the money among the staff. IAF, Tab 112
at 13, 22-28. According to the appellant, later that day the Managing Editor gave
him “$200 or less.” IAF, Tab 4 at 61.
The Office of the Inspector General (OIG) for the Department of State
subsequently conducted an investigation into the receipt of the money and its
distribution. Id. at 10. The OIG twice interviewed the appellant. Id. at 28-54,
56-88. After originally telling the OIG investigators that he received no money,
the appellant subsequently confirmed that he received approximately $200 from
the Managing Editor. Id. at 40, 60-62. He asserted that the money he received
was reimbursement for having purchased lunch for the Governor’s entire staff.
Id. at 60-62. Although estimating that the lunches cost around $100, the
appellant claimed that he neither counted the money that the Managing Editor
gave him nor considered the overpayment to be significant. Id. at 61, 73-74.
Following the OIG’s investigation, approximately 17 VOA employees were
either terminated or proposed for termination for their acceptance of the
distributed money. IAF, Tab 13, Hearing Compact Disc (HCD) at 24:38
(testimony of the deciding official). Among these employees was the appellant,
who was removed for prohibited acceptance of a gift. IAF, Tab 4 at 10-17, Tab 6
at 8-12.
The appellant filed the instant appeal of his removal to the Board. IAF,
Tab 1 at 5. After holding a hearing, the administrative judge issued an initial
decision affirming the agency’s action. IAF, Tab 14, Initial Decision (ID) at 2.
The administrative judge found that the agency proved by preponderant evidence
that the appellant engaged in the prohibited acceptance of a gift. ID at 7-20. The
administrative judge further found that the appellant failed to establish that intent
was an element of the charge under agency policy, and thus the appellant failed to
show a harmful procedural error. ID at 21-22. Finally, the administrative judge
found that the agency properly made its penalty determination, the appellant’s
removal was within the tolerable bounds of reasonableness, and that removal
promoted the efficiency of the service. ID at 22-24. 3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied to its
response. PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, in an adverse action appeal, an agency must prove its charge by
a preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R.
687, ¶ 6 (2012).3 Here, the appellant only challenges the administrative judge’s
determination that the agency proved the charge, and raises concerns about the
agency’s compliance with discovery. Our discussion will be similarly focused.4
The administrative judge correctly found that the agency proved the charge by
preponderant evidence.
The administrative judge found that it was undisputed that the Governor of
the Katsina State of Nigeria was a prohibited source and that, on the day in
question, the appellant received money greater than what he paid for lunch. ID
at 19-20. The administrative judge further observed that the appellant admitted to
accepting money from the Managing Editor. ID at 17. The parties do not dispute
these findings on review, and we decline to disturb them. The administrative
judge then found that, contrary to the appellant’s claims, he knew the money he
received from the Managing Editor came from the Governor of Katsina. ID
at 18-20. He found, in essence, that proof of these facts was sufficient to sustain
3 The appellant on review suggests that the agency needed to prove its charge by clear
and convincing evidence. PFR File, Tab 1 at 4. This is incorrect, as the standard of
proof required is by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B); Hall,
117 M.S.P.R. 687, ¶ 6.
4 The parties do not challenge the administrative judge’s findings that the agency
proved nexus and penalty or that the appellant failed to prove harmful error. We
discern no basis to disturb these findings on review.4
the charge.5 ID at 20. The appellant disputes the finding that he knew the money
came from the Governor of Katsina on review. PFR File, Tab 1 at 2-4.
Citing Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987), the
administrative judge recognized that the appellant’s testimony that he received
money from the Managing Editor was inconsistent with his response during his
first interview with OIG investigators, denying that he “ever received money” in
connection with “visitors” to the VOA. ID at 18-19; IAF, Tab 4 at 40. The
administrative judge also determined that the appellant’s claim that he was
unaware the money he received from his Managing Editor came from the
Governor of Katsina was inconsistent with the Managing Editor’s sworn
statement to the OIG that the appellant received the envelope containing the
money from a member of the Governor’s staff, and describing how the money
was distributed to the appellant and 17 other employees. ID at 18-19; IAF,
Tab 11 at 11-12, 27-32. The administrative judge additionally observed that the
appellant’s version of events was contradicted by the accounts of as many as
15 of his coworkers, who confessed to receiving the money from the Governor’s
delegation. ID at 20; HCD at 53:05 (testimony of the Director of VOA Africa
Division). The administrative judge found it more plausible that the appellant, as
admitted by the Managing Editor and all of his colleagues who received cash, was
aware that the money he received was a gift from the Governor of Katsina, and
did not credit the appellant’s testimony. Id.
On review, the appellant alleges that the administrative judge overlooked
various pieces of evidence that support his assertion that he did not know that the
money he received from the Managing Editor was from the Governor of Katsina.
5 The parties do not dispute this formulation of the charge, and we discern no basis to
disturb it. See Sher v. Department of Veterans Affairs , 97 M.S.P.R. 232, ¶¶ 4-5 (2004)
(declining to disturb an administrative judge’s determination that an agency proved
charges of soliciting and accepting gifts based on an appellant’s request and receipt of
prescription medication samples from an entity doing business with his employing
agency); 5 C.F.R. § 2635.202(b) (prohibiting Federal employees from accepting gifts
from prohibited sources or gifts given based on an employee’s official position).5
PFR File, Tab 1 at 2-4. For example, he points to evidence that he did not open
the envelope he received from the Governor’s delegation or distribute the money
it contained. Id.; IAF, Tab 4 at 61-66, Tab 11 at 23-33. The appellant also
disagrees with the administrative judge’s finding that the appellant received his
portion from his coworker, rather than from the Managing Editor, as he claimed.
PFR File, Tab 1 at 2-3; IAF, Tab 11 at 32-33. The appellant again asserts that his
Managing Editor gave him the money to reimburse the appellant for buying
lunch, along with providing some additional money as appreciation. PFR File,
Tab 1 at 3. He asserts that a supervisor providing additional remuneration for a
subordinate’s expenditures on the supervisor’s behalf is culturally acceptable. Id.
The Board will defer to the credibility determinations of an administrative
judge when they are based, explicitly or implicitly, upon the observation of the
demeanor of witnesses testifying at a hearing. Thomas v. U.S. Postal Service ,
116 M.S.P.R. 453, ¶ 5 (2011). The credibility determinations of an administrative
judge are virtually unreviewable on appeal. Id. Indeed, the Board may overturn
such determinations only when it has sufficiently sound reasons for doing so,
such as when the administrative judge’s findings are incomplete, inconsistent
with the weight of the evidence, and do not reflect the record as a whole. Rapp v.
Office of Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008).
Contrary to the appellant’s claims on review, the administrative judge
considered the evidence mentioned above regarding the receipt and distribution of
the money. In reaching his conclusion, the administrative judge determined that
the appellant did not open the envelope or distribute the money. ID at 16, 18-20.
Nonetheless, the administrative judge did not credit the appellant’s claim that he
did not know the envelope contained money. ID at 20. In making this finding he
found that the appellant’s coworker, and not the Managing Editor, gave the
appellant his share of the money. ID at 20. Similarly, he did not credit the6
appellant’s claim that the money he received was reimbursement for lunch.6 ID
at 17-18, 20, 24.
Because the administrative judge made his credibility determinations
following a hearing, we find they are entitled to deference. Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (finding
that the Board generally must defer to an administrative judge’s implicit
demeanor-based credibility findings made after holding a hearing, even if
demeanor was not specifically discussed in the initial decision). These findings
were not, as the appellant claims, incomplete or unsupported by the evidence.
Accordingly, we decline to disturb the administrative judge’s conclusion that the
agency proved its charge.
The appellant also asserts on review that he sought transcripts of the OIG
interviews before the hearing, but only received one. PFR File, Tab 1 at 4.
According to the appellant, the allegedly missing transcripts would reflect that he
denied taking money from anyone and confirm that he purchased lunch for the
group. Id. at 3-4. Although the appellant asserts his attorney requested these
transcripts, he does not claim to have personal knowledge of this request. PFR
File, Tab 4 at 2. The only evidence he provides is the agency’s certificate of
service reflecting that the agency responded to the appellant’s interrogatories. Id.
at 2, 6.
6 As discussed above, the appellant argues on review that his acceptance of
reimbursement for buying the Governor and his staff lunch along with additional money
from the Managing Editor was culturally acceptable. PFR File, Tab 1 at 3. He does not
cite to any evidence in support of this argument. Id. However, the appellant’s past
statements and hearing testimony reflect his belief that accepting money from his
supervisor was culturally acceptable because it was consistent with a supervisor paying
for a subordinate’s lunch. IAF, Tab 4 at 21-23, 26, 73; HCD at 1:54:20 (testimony of
the appellant). In light of the administrative judge’s finding that the appellant was
aware the money he received came from the Governor of Katsina, the appellant’s
argument that it was permissible to accept money from the Managing Editor does not
affect the outcome of this appeal. See Kingsley v. U.S. Postal Service , 123 M.S.P.R.
365, ¶ 15 (2016) (denying review when an appellant did not identify any particular
evidence that the administrative judge might have overlooked that could have affected
the outcome of the appeal).7
To the extent that the appellant is arguing that the agency should have
produced additional transcripts below, he has not stated a basis for review. He
has failed to demonstrate that he requested the transcripts. See Mills v.
U.S. Postal Service, 119 M.S.P.R. 482, ¶ 5 (2013) (declining to consider evidence
submitted for the first time on review when the appellant had an opportunity to
obtain this evidence by conducting discovery under the terms of the
acknowledgment order, but failed to do so). In addition, he has failed to show
that he was prejudiced by the alleged failure to provide the transcripts, as he only
speculates as to what they might show. PFR File, Tab 1 at 3 -4; see Szejner v.
Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005) (concluding that an
appellant did not demonstrate that he was prejudiced by an agency’s alleged
failure to respond to his discovery requests because he did not show that the
information sought would change the outcome of this appeal), aff’d, 167 F. App’x
217 (Fed. Cir. 2006). Finally, he is precluded from raising the agency’s alleged
failure to provide the transcripts on review because he did not file a motion to
compel below. Szejner, 99 M.S.P.R. 275, ¶ 5.
The appellant’s remaining arguments do not provide a basis for disturbing the
initial decision.
The appellant describes on review several ways his attorney could have
performed better. PFR File, Tab 1 at 4, Tab 4 at 2-3. Even if true, the presence
of inadequate counsel is not a basis for reversal because the appellant is held
responsible for the action or inaction of his counsel. Wynn v. U.S. Postal Service ,
115 M.S.P.R. 146, ¶ 7 (2010), overruled on other grounds by Thurman v. U.S.
Postal Service, 2022 MSPB 21, ¶ 17.
The appellant additionally argues on review that the administrative judge
inappropriately rejected a document from the record below based on the agency’s
objection at the hearing. PFR File, Tab 1 at 4. The administrative judge did not
immediately reject this document at the agency’s objection, but rather, allowed
the appellant an opportunity to question the deciding official about it, as the8
document was allegedly mailed to her. HCD at 4:27 (statement of the
administrative judge). However, the appellant never questioned the deciding
official about the document, and it was not referenced for the remainder of the
hearing. It does not appear that the administrative judge made an explicit ruling
on the admission of the document, but we find that he implicitly rejected its
admission. IAF, Tab 12 at 1. On review, we affirm that rejection.
Neither of the parties have demonstrated that the agency received the
document prior to the appellant’s attempt to admit it into the record below, and
the alleged proof of delivery provided by the appellant is missing nearly all of the
relevant information of delivery, including to whom it was delivered and from
where it was sent.7 PFR File, Tab 1 at 12. Moreover, even were we to consider
the document, it states that the reimbursement the appellant received was from
the Governor of the Katsina State of Nigeria, not from the Managing Editor. Id.
at 10. Thus, this document suggests that the overpayment the appellant received
from his lunch purchase was directly from the prohibited source, and further
bolsters the agency’s charge. See Karapinka v. Department of Energy ,
6 M.S.P.R. 124, 127 (1981) (finding an administrative judge’s procedural error is
of no legal consequence unless it is shown to have adversely affected a party’s
substantive rights).
The appellant also attaches another document on review, seemingly a letter
written from himself to the director of VOA “not long after [the appellant] was
removed.” PFR File, Tab 1 at 3, 6-8. Under 5 C.F.R. § 1201.115, the Board
generally will not consider evidence submitted for the first time on review absent
a showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
This showing is not met when an appellant possessed evidence below but elected
not to submit it. See Fox v. U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999)
7 The relevant information of the tracking document is blurred beyond legibility. PFR
File, Tab 1 at 12. 9
(declining to consider a document that an appellant’s attorney elected not to
submit below). Given that the appellant himself created this document, it would
appear to have been previously available before the record was closed below. As
such, we do not consider this document submitted for the first time on review.
Finally, the appellant notes a factual error in the initial decision. PFR File,
Tab 1 at 4, Tab 4 at 4. The initial decision suggests that the appellant stated that
he was given an envelope from the Governor’s staff and subsequently purchased
lunch for the staff. ID at 16. This was erroneous, as it appears the appellant
purchased the lunch and then subsequently, as the Governor’s staff was leaving, a
member of the staff handed him the envelope in question. IAF, Tab 4 at 60-62.
However, this error was harmless, as the order in which the appellant bought
lunch and received the money is not material to the removal action. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding 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 RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Aliyu_Sahabo_I_DC-0752-19-0308-I-1_Final_Order.pdf | 2024-03-15 | null | DC-0752-19-0308-I-1 | NP |
2,059 | https://www.mspb.gov/decisions/nonprecedential/Seda_Anthony_W_PH-1221-19-0026-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY WAYNE SEDA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-1221-19-0026-W-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
nthony Wayne Seda , Aberdeen, Maryland, pro se.
Jennifer Karangelen , 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
dismissed this individual right of action (IRA) appeal as barred by res judicata.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the issue of the Board’s jurisdiction over the appellant’s claims is barred
by the doctrine of collateral estoppel rather than the doctrine of res judicata, and
to dismiss the appeal for lack of jurisdiction on that basis, we AFFIRM the initial
decision.
BACKGROUND
On January 18, 2017, the appellant filed an IRA appeal from the agency’s
action removing him during his probationary period from the position of Social
Insurance Specialist, Claims Representative, GS-07, effective January 25, 2006.
Seda v. Social Security Administration , MSPB Docket No. PH-1221-17-0149-
W-1, Initial Appeal File (0149 AF), Tab 6 at 2-3. The administrative judge
dismissed the appeal for lack of jurisdiction. 0149 AF, Tab 29, Initial Decision
(0149 ID) at 5-8. Specifically, he found that the appellant alleged reprisal for
advising the agency that he planned to file an equal employment opportunity
(EEO) complaint and contact the Department of Labor (DOL) alleging that the
agency violated his rights under the Family and Medical Leave Act of 1993
(FMLA) and denied him reasonable accommodation. 0149 ID at 7. However, he
concluded that the appellant failed to prove that he exhausted those alleged
disclosures or activities with the Office of Special Counsel (OSC). 0149 ID at 8.2
In the alternative, the administrative judge denied corrective action. 0149 ID
at 8-13. That initial decision became the Board’s final decision when neither
party filed a petition for review by October 19, 2017. 0149 ID at 13; see 5 C.F.R.
§ 1201.113(a) (explaining that, absent a petition for review, an initial decision
generally becomes the Board’s final decision 35 days after issuance).
In the instant appeal, the administrative judge found that the appellant had
made the same arguments that he made in that prior appeal, i.e., that the agency
retaliated against him for filing DOL and EEO complaints when it removed him
from his position during his probationary period. Initial Appeal File (IAF),
Tab 22, Initial Decision (ID) at 2-3. Because he found that the pleadings in both
appeals were identical, and the prior decision was the Board’s final decision, he
dismissed the instant appeal on the basis of res judicata. ID at 3. In his petition
for review, the appellant disputes the merits of his termination2 and reiterates his
claim of retaliation. Petition for Review (PFR) File, Tab 1 at 2-3, 7. He argues
that the agency denied him due process and committed harmful error. Id. at 2,
4-7. He also argues that the administrative judge was biased against him. Id.
at 2-3. The agency has filed a response to the appellant’s petition for review.
PFR File, Tab 5. The appellant has filed a reply to the agency’s response. PFR
File, Tab 8.
2 The appellant was terminated from his excepted-service appointment during his trial
period and lacked the requisite 1 year of current continuous service necessary to be an
“employee” with adverse action appeal rights to the Board under 5 U.S.C. § 7511(a)(1).
Seda v. Social Security Administration , MSPB Docket No. PH-0752-07-0053-I-1, Initial
Decision (Jan. 31, 2007). That decision became the Board’s final decision on whether
the appellant met the definition of “employee” under 5 U.S.C. § 7511(a)(1) when the
Board denied the appellant’s subsequent petition for review. Seda v. Social Security
Administration, MSPB Docket No. PH-0752-07-0053-I-1, Final Order (May 8, 2007);
5 C.F.R. § 1201.113. Thus, to the extent the appellant argues the merits of his
termination, asserts that the agency violated his right to due process, or raises
allegations of harmful error or disability discrimination as to that termination, we lack
authority to consider those claims. See Rivera v. Department of Homeland Security ,
116 M.S.P.R. 429, ¶¶ 10, 16 (2011) (finding that, because the Board lacked jurisdiction
over the expiration of an appellant’s temporary appointment, it also lacked jurisdiction
over his discrimination and due process claims). 3
DISCUSSION OF ARGUMENTS ON REVIEW
The doctrines of res judicata (claim preclusion) and collateral estoppel
(issue preclusion) both concern the preclusive effect of a prior adjudication and
are based on similar policy concerns—to “relieve 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)). As noted above, the administrative judge found that the appellant’s IRA
appeal was barred by res judicata. We find this to be an error, as a dismissal of a
prior case for lack of jurisdiction cannot be given res judicata effect. Hau v.
Department of Homeland Security , 123 M.S.P.R. 620, ¶ 9 (2016), aff’d sub nom.
Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) . The
Board may not address the merits of an IRA appeal before making a jurisdictional
determination. See King v Department of Veterans Affairs , 105 M.S.P.R. 21, ¶ 8
(2007) (finding that the Board must address the jurisdictional issue before
proceeding to the merits of an IRA appeal and that, without jurisdiction, an
administrative judge’s findings on the merits are a nullity). Thus, although the
administrative judge addressed the merits of the appellant’s claims in his prior
decision, we treat the dismissal of the appeal as a jurisdictional determination
only.
The Board applies collateral estoppel to determine whether a previous
adjudication of a jurisdictional issue precludes its relitigation. McNeil v.
Department of Defense , 100 M.S.P.R. 146, ¶¶ 15-20 (2005). 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 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., ¶ 15. Collateral4
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. Hau,
123 M.S.P.R. 620, ¶ 13.
The administrative judge found that the appellant raised the same
disclosures and activities in the instant matter as in his prior whistleblower
appeal. ID at 3. We have reviewed the record and agree with the administrative
judge that the disclosures and activities in each appeal are identical. IAF, Tab 1
at 89, Tab 5 at 94; PFR File, Tab 1 at 19; 0149 AF, Tab 6 at 30-40. In his prior
appeal, the appellant asserted that the agency terminated him because he informed
his supervisors that he would file an equal EEO complaint and contact the DOL
because the agency denied him leave under FMLA and a reasonable
accommodation. 0149 ID at 7. As noted above, the appellant did not file a
petition for review of the initial decision in his prior appeal challenging the
administrative judge’s findings on the issue of OSC exhaustion, and does not
address the issue in the instant appeal.
Further, the appellant has not provided evidence that he cured his failure to
exhaust his disclosures and activities with OSC. He attached to his appeal a copy
or printout of a letter to OSC, dated “Wednesday, 17, 2018.” IAF, Tab 1 at 7-15.
However, it appears that he is asserting that he sent a copy of his initial appeal,
including this letter, to OSC when he filed his initial appeal with the Board. Id.
at 31. He does not claim that he filed the letter with OSC as a new complaint.
Further, both below and on petition for review, the appellant refers to a 2006
contact with OSC, but does not mention the 2018 correspondence. PFR File,
Tab 1 at 7; IAF, Tab 11 at 29, 33, Tab 12 at 16, 18.
We also find that the dispositive jurisdictional issue was identical to the
issue actually litigated in the appellant’s prior appeal. 0149 ID at 7; ID at 2-3;
Setevage v. Department of Defense , 77 M.S.P.R. 120, 125 (1997) (finding
collateral estoppel barred an appellant from relitigating the issue of jurisdiction5
over an IRA appeal) . The administrative judge did not hold a hearing. 0149 ID
at 3 n.2. However, none was required. That an issue was “actually litigated”
means that the issue must have been contested by the parties and submitted for
determination by a court or other neutral adjudicator. Hamiter v. U.S. Postal
Service, 96 M.S.P.R. 511, ¶ 17 (2004). The administrative judge’s finding of no
jurisdiction was necessary to the resulting dismissal of the prior appeal, and
because the appellant was a party to the earlier action, he had a full and fair
opportunity to litigate the issue. 0149 ID at 7-8; McNeil, 100 M.S.P.R. 146, ¶ 15
(explaining that one of the ways in which a party in the new action had a full and
fair opportunity to litigate an issue in a prior action was as a party).
Although we agree with the administrative judge’s ultimate conclusion that
the claim is barred, because the prior decision found that the appellant failed to
establish jurisdiction over his appeal, we find that it is barred by collateral
estoppel rather than res judicata. Hau, 123 M.S.P.R. 620, ¶ 9. We find that the
administrative judge erred in finding that the appeal was barred by res judicata,
rather than to dismiss the appeal for lack of jurisdiction, relying on the doctrine
of collateral estoppel. As discussed above, collateral estoppel is the proper
doctrine on which to base a finding of preclusion when the prior appeal was
dismissed for lack of jurisdiction. However, this error was harmless and
therefore is not a basis to reverse the initial decision. See Panter v. Department
of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for revisal
of an initial decision).
To the extent that the administrative judge found that issues the appellant
could have raised in his prior IRA appeal, but did not do so, were also barred, ID
at 2-3, this was also an error. While res judicata precludes parties from
relitigating issues that could have been raised in the previous action, collateral
estoppel does not; it only precludes the relitigation of issues that were actually
litigated in the prior action. Fisher v. Department of Defense , 64 M.S.P.R. 509,6
513 n.1 (1994). Nevertheless, we have carefully examined the appellant’s
pleadings and, as noted above, we find that he raised no new disclosures or
activities, and he does not allege that he filed a new complaint with OSC.
Because the appellant raised no other issues concerning jurisdiction over his IRA
appeal, we find this error is also harmless. Panter, 22 M.S.P.R. at 282.
The appellant attached numerous documents to his petition for review.
PFR File, Tab 1 at 27-220. He provided a table identifying the date of each
document included with his petition for review, indicating that all of the
documents date from before the close of the record below. Id. at 27-43; 5 C.F.R.
§ 1201.59. 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). Because the appellant does not make such a
showing here, we have not considered these documents.
As to his claims of bias against the administrative judge, the appellant
essentially expresses his disagreement with the administrative judge’s
adjudication of the issues in this and prior appeals. PFR File, Tab 1 at 2-3. 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)). The
appellant makes no such showing. In making a claim of bias or prejudice against
an administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s allegations fail to
do so. 7
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 12 | Seda_Anthony_W_PH-1221-19-0026-W-1_Final_Order.pdf | 2024-03-15 | ANTHONY WAYNE SEDA v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-19-0026-W-1, March 15, 2024 | PH-1221-19-0026-W-1 | NP |
2,060 | https://www.mspb.gov/decisions/nonprecedential/Richardson_Bennie_R_PH-0845-20-0281-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENNIE RICHARDSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-20-0281-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bennie R. Richardson , Moon Township, Pennsylvania, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) February 21, 2020 final
decision. On petition for review, the appellant reiterates arguments he made
below, and he asserts that the administrative judge erred in denying his requested
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
witnesses.2 Petition for Review (PFR) File, Tab 1. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
2 Regarding the appellant’s argument that the administrative judge erred in denying his
witness requests, neither party attended the prehearing conference during which
witnesses would have been discussed. Initial Appeal File, Tab 58 at 1. In a subsequent
order and summary of the prehearing conference, the administrative judge explained
that the only approved witness to testify at the hearing was the appellant, and he
provided the parties with an opportunity to object to the “completeness and accuracy” of
the order. Id. at 2. The appellant filed no such objection. Further, at the hearing, the
administrative judge reiterated his rulings from the order and summary of the prehearing
conference, and the appellant did not object to being the only witness to testify.
Hearing Recording (statements of the administrative judge and testimony of the
appellant). Therefore, at no time does it appear that the appellant objected to the
administrative judge’s rulings on witnesses. The Board has stated that a failure to
object to a witness ruling or to call for rebuttal witnesses precludes an appellant from
challenging witness rulings on a petition for review. See Alaniz v. U.S. Postal Service ,
100 M.S.P.R. 105, ¶ 9 (2005); see also Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579,
581 (1988) (stating that an appellant’s failure to timely object to the administrative
judge’s rulings on witnesses precludes her from doing so on petition for review).
Accordingly, we find that the appellant is precluded from raising this issue on review. 2
review.3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.4 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
3 On May 23, 2023, and following the close of record on review, the appellant filed a
motion to dismiss his appeal without prejudice, pursuant to 5 C.F.R. § 1201.29(a).
PFR File, Tab 15 at 3. The agency did not respond to the appellant’s motion. Because
the appellant has not provided any argument supporting his motion, id., the motion to
dismiss the appeal without prejudice is denied. See 5 C.F.R. § 1201.29(b). The
appellant filed another motion on July 9, 2023, requesting leave to file new evidence.
PFR File, Tab 16. Once the record closes on review, no additional evidence or
argument will be accepted unless it is new and material as defined in 5 C.F.R.
§ 1201.115(d) and the party submitting it shows that the evidence or argument was not
readily available before the record closed. See 5 C.F.R. § 1201.114(k). Here, the
record on review closed on or around August 6, 2021. The appellant asserts in his
motion that he wishes to submit a May 2, 2023 letter from the Office of Workers’
Compensation Programs (OWCP) stating that the Social Security Administration (SSA)
erred in concluding that his OWCP benefits resulted in an overpayment of his Social
Security Disability Insurance (SSDI) benefits. PFR File, Tab 16 at 4-5. It is apparent
from the date of the letter that it was not available at the time the record closed on
review. However, taking the appellant’s categorization of the letter as true, the alleged
error concerns the appellant’s OWCP benefits and whether those benefits resulted in an
overpayment by SSA, not by OPM. Any error evidenced by the May 2, 2023 letter is
for SSA to address, and SSA is not a party in this matter. Thus, the letter is not
material to the instant appeal. Accordingly, we deny the appellant’s motion to submit
new evidence.
4 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 115-195,6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Richardson_Bennie_R_PH-0845-20-0281-I-1 Final Order.pdf | 2024-03-15 | BENNIE RICHARDSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-20-0281-I-1, March 15, 2024 | PH-0845-20-0281-I-1 | NP |
2,061 | https://www.mspb.gov/decisions/nonprecedential/Plasola_Jesse_B_SF-0842-22-0396-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSE B. PLASOLA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0842-22-0396-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse B. Plasola , Oxnard, California, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed without prejudice his appeal regarding the apportionment of his
retirement benefits under the Federal Employees’ Retirement System. For the
reasons set forth below, we DENY the petition for review and AFFIRM the initial
decision; however, we FORWARD the matter to the Western Regional Office.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
The appellant largely argues the merits of his appeal. Petition for Review
(PFR) File, Tabs 1, 5.2 The only matter presently before the Board, however, is
whether the dismissal without prejudice was proper. The remedy for an
improperly granted dismissal without prejudice is remand to the regional office
for further adjudication of the appeal. See, e.g., Dey v. Nuclear Regulatory
Commission, 106 M.S.P.R. 167, ¶¶ 9-11 (2007). Here, the initial decision
indicated that the appeal would automatically be refiled on February 9, 2023.
Initial Appeal File, Tab 12, Initial Decision at 2-3. Regardless of whether the
administrative judge abused his discretion, February 9, 2023 has now passed.
Thus, because the condition for refiling has been met, we decline to reach the
issue of whether the administrative judge abused his discretion in dismissing the
appeal without prejudice. See Burke v. Department of Veterans Affairs ,
94 M.S.P.R. 1, ¶ 5 (2003). We therefore deny the petition for review; however,
we forward the matter to the Western Regional Office to be considered as a
refiled appeal. See Henry v. Department of Veterans Affairs , 110 M.S.P.R. 213,
¶ 6 (2008). The initial decision 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 The appellant also asserts, among other things, that the administrative judge
“sidestepped the petitioner’s claims, that OPM was violating petitioner’s constitutional
rights.” PFR File, Tab 1 at 3 (grammar and punctuation in original). To the extent that
the appellant challenges the dismissal without prejudice, for the reasons set forth
herein, a different outcome is not warranted.
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
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Plasola_Jesse_B_SF-0842-22-0396-I-1_Final_Order.pdf | 2024-03-15 | JESSE B. PLASOLA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-22-0396-I-1, March 15, 2024 | SF-0842-22-0396-I-1 | NP |
2,062 | https://www.mspb.gov/decisions/nonprecedential/Young_Rashonda_A_CH-0714-19-0400-I-1_CH-1221-19-0332-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RASHONDA A. YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
CH-0714-19-0400-I-1
CH-1221-19-0332-W-1
DATE: March 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rashonda A. Young , Baltimore, Maryland, pro se.
Aisha M. Jones and Shelia Fitzpatrick , Esquire, Hines, Illinois,
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 in these
joined appeals,2 which affirmed the agency’s action removing her from her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The administrative judge joined the two appeals for adjudication and issued a single
initial decision that was entered into both case files. Young v. Department of Veterans
Affairs, MSPB Docket No. CH-0714-19-0400-I-1, Initial Appeal File, Tabs 24, 83;
Young v. Department of Veterans Affairs , MSPB Docket No. CH-1221-19-0332-W-1,
position pursuant to the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.
No. 115-41, § 202(a), 131 Stat 862, 869-73 (2017) (codified as amended at
38 U.S.C. § 714), and denied her request for corrective action in connection with
her 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 Central Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant began her employment with the agency on June 12, 2016, as
a Contract Specialist. Young v. Department of Veterans Affairs , MSPB Docket
No. CH-0714-19-0400-I-1, Initial Appeal File (0400 IAF), Tab 34 at 103.
Thereafter, she filed several matters with the Board, two of which are addressed
in this decision.
In July and August 2017, the appellant’s supervisor began to note problems
with the appellant’s performance, specifically regarding the critical element of
pre/post award contracting actions. 0400 IAF, Tab 34 at 8-9, Tab 35 at 116-17,
Tab 66 at 29. On or about August 17, 2017, the appellant filed a whistleblower
retaliation complaint with the Office of Special Counsel (OSC). 0400 IAF,
Tab 35 at 79; Young v. Department of Veterans Affairs , MSPB Docket No. CH-
1221-19-0332-W-1, Initial Appeal File (0332 IAF), Tab 1 at 253-63. On
December 28, 2017, while OSC was investigating the appellant’s complaint, she
filed a Board appeal alleging that her November 2017 performance appraisal,
which found her performance unacceptable in pre/post award contracting actions,
organizational/program support, and communications was retaliatory. Young v.
Department of Veterans Affairs , MSPB Docket No. CH-3443-18-0124-I-1, Initial
Appeal File, Tab 1 at 3, 32. On March 29, 2018, while that appeal was pending
Initial Appeal File, Tabs 29, 88. We will cite to the initial decision in the lead docket
number, CH-0714-19-0400-I-1.2
before the administrative judge, OSC notified the appellant that it was
terminating its investigation into her August 2017 complaint because she sought
corrective action from the Board 120 days after she had filed her OSC complaint.
0400 IAF, Tab 35 at 79. In its termination letter, OSC described the appellant’s
protected disclosure as sending an email to numerous agency employees on
August 3, 2017, challenging as improper and a violation of agency policy
management’s requirement that employees attending training return to duty when
the training is completed before the end of the employee’s duty day.3 Id. OSC
described the agency’s purportedly retaliatory actions as removing the appellant
from the training for being disruptive, reprimanding her on August 29, 2017, for
failure to follow instructions, counseling her on August 30, 2017, regarding her
performance, and lowering her performance rating on November 9, 2017. Id.
Meanwhile, on February 14, 2018, the agency proposed the appellant’s
removal under the authority of 38 U.S.C. § 714, based on her failure to perform
satisfactorily in the pre/post award contracting actions and organizational/
program support critical elements of her position. 0400 IAF, Tab 35 at 107-09.
On March 5, 2018, the agency deciding official found that, regarding both critical
elements, the notice of proposed removal was supported by substantial evidence.
Id. at 84. The appellant appealed the removal action to the Board on March 6,
2018. Young v. Department of Veterans Affairs , MSPB Docket No. CH-0714-18-
0245-I-1, Initial Appeal File (0245 IAF), Tab 1. Because 38 U.S.C. § 714(e)(2)
prohibits the agency from taking an adverse action against an employee while an
investigation of the employee’s claim of whistleblower reprisal is pending, the
agency agreed in a settlement agreement to rescind the appellant’s removal and
reinstate the appellant while an investigation was ongoing. 0245 IAF, Tabs 15,
17. That settlement agreement also resolved the appellant’s December 28, 2017
3 The appellant further explained that, when training similar to the training she was
attending was held at a remote location, employees were not required to return to work
for the remainder of the day if training ended before the end of the employee’s duty
day. 0332 IAF, Tab 1 at 254-55, 258-63. 3
Board appeal. 0245 IAF, Tab 17. As a result of the settlement agreement, the
administrative judge issued separate initial decisions dismissing the two appeals
(MSPB Docket Nos. CH-3443-18-0124-I-1 and CH-0714-18-0245-I-1).4 Young v.
Department of Veterans Affairs , MSPB Docket No. CH-3443-18-0124-I-1, Initial
Decision (Apr. 12, 2018) ; Young v. Department of Veterans Affairs , MSPB
Docket No. CH-0714-18-0245-I-1 Initial Decision (Apr. 12, 2018); 0245 IAF,
Tab 18.
As noted above, on March 29, 2018, OSC concluded its investigation into
the appellant’s August 2017 complaint. 0400 IAF, Tab 35 at 79. Thereafter, on
April 10, 2018, the agency reissued the removal decision based on the proposed
removal originally issued on February 14, 2018. Id. at 71-75. The removal was
to be effective on April 11, 2018. Id. at 71. However, on April 10, 2018, the
same day she received the reissued removal decision letter, the appellant filed a
second complaint with OSC wherein she largely repeated her previous allegations
to OSC and also claimed that the agency retaliated against her because of her
OSC complaint. Id. at 56, 62-69. Pursuant to the VA Accountability Act, the
removal decision was again stayed pending another investigation into the
appellant’s renewed whistleblower reprisal claims. 0400 IAF, Tab 66 at 23.
Following the second stay of the appellant’s removal, the agency assigned
the appellant to a different workspace and, because of her performance
deficiencies, did not assign her significant substantive work and did not allow her
to participate in further contract specialist training. 0400 IAF, Tab 66 at 23-25.
In June 2018, the agency denied the appellant a scheduled within -grade increase,
and in November 2018, it issued the appellant another unacceptable performance
appraisal. 0400 IAF, Tab 35 at 51-52, Tab 66 at 25-26. On December 4, 2018,
the appellant filed a third OSC complaint. 0332 IAF, Tab 1 at 284, 289-91.
OSC terminated its investigation into the appellant’s December 4, 2018
complaint on February 20, 2019, describing the appellant’s complaint as alleging
4 These initial decisions became final when neither party filed a petition for review. 4
that her 2017 and 2018 performance appraisals, the denial of training
opportunities, and the failure to assign her work were all in reprisal for her
previous OSC complaints and Board appeals. 0400 IAF, Tab 1 at 63. On
April 16, 2019, the appellant filed an IRA appeal with the Board and requested a
hearing. 0332 IAF, Tab 1. The administrative judge acknowledged that appeal
and assigned it docket number CH-1221-19-0332-W-1. 0332 IAF, Tab 2.
While the appellant’s April 16, 2019 appeal was pending before the
administrative judge, on June 5, 2019, the agency notified the appellant by email
that the stay of her April 10, 2018 reissued removal decision had been lifted, and
that her removal based on unacceptable performance was effective immediately.
0400 IAF, Tab 34 at 158. The following day, the appellant filed an appeal of her
removal and requested a hearing. 0400 IAF, Tab 1. The administrative judge
acknowledged that appeal and assigned it docket number CH-0714-19-0400-I-1.
0400 IAF, Tab 2.
As noted previously, the administrative judge joined the appellant’s
removal appeal with her IRA appeal. 0400 IAF, Tabs 24, 83; 0332 IAF, Tabs 29,
88. At the beginning of the scheduled hearing, the appellant withdrew her
hearing request, and the administrative judge set a date for the close of the record.
0332 IAF, Tab 68; 0400 IAF, Tab 63. Both parties filed additional submissions.
0332 IAF, Tabs 71-72, 76-82; 0400 IAF, Tabs 66-67, 71-77.
In the initial decision, the administrative judge first addressed the appeal of
the removal action taken under 38 U.S.C. § 714 and, in doing so, rejected the
appellant’s claim that she was not covered by that statutory scheme. 0400 IAF,
Tab 83, Initial Decision (ID) at 18-20. The administrative judge found that the
agency proved the accuracy and reasonableness of the appellant’s performance
standards and that her performance under both critical elements was
unacceptable. ID at 13-14. Specifically, the administrative judge found that the
agency proved by substantial evidence that the appellant’s performance did not
meet the requisite criteria for performance at the fully successful level in either of5
the two critical elements charged, and that, therefore, the agency met its burden
under 38 U.S.C. § 714 in support of the removal action. ID at 15-18. As such,
the administrative judge affirmed the agency’s decision to remove the appellant
from her position. ID at 2, 18.
The administrative judge then addressed the appellant’s IRA appeal. ID
at 21-27. He found that the appellant failed to demonstrate that her complaints
concerning the instruction to return to duty when training ended early constituted
a protected disclosure under the whistleblower protection statutes. ID at 24-26.
The administrative judge went on to find that, even if the disclosure was
protected, the agency established by clear and convincing evidence that it would
have taken the same action in the absence of any protected disclosures. ID
at 26-27. Accordingly, the administrative judge denied the appellant’s request for
corrective action. ID at 2, 27.
The appellant has filed a petition for review and a supplement thereto.5
Petition for Review (PFR) File, Tabs 1-2. The agency has filed a response in
opposition to the petition, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 4-5.
ANALYSIS
In the analysis that follows, we first address the appellant’s removal appeal
and find that the administrative judge correctly found that the appellant’s
performance standards were accurate and reasonable and that she failed to
perform at a fully successful level. Despite those findings, we next find that
remand is necessary to address possible harmful error by the agency in taking the
removal action and to address the agency’s penalty selection. We then turn to the
appellant’s IRA appeal and find that, while the administrative judge correctly
5 As the 0400 and 0332 appeals remain joined on petition for review, the parties’
petition for review filings have been added to the record in both docket numbers.
Because the petition for review records are identical, we will cite generally to the
petition for review file. 6
found that the appellant did not make a protected disclosure, remand is necessary
to address whether the appellant engaged in protected activity.
The appellant’s removal appeal, MSPB Docket No. CH-0714-19-0400-I-1.
The administrative judge correctly found that the agency proved by
substantial evidence that the appellant’s performance standards were
accurate and reasonable and that the appellant failed to perform at a
successful level.
In Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 11-20,
the Board examined performance-based actions taken by the agency under
38 U.S.C. § 714. The Board found that the elements for proving such a charge
under 5 U.S.C. chapter 43 do not apply to an action taken under 38 U.S.C. § 714,
and that the proper elements for such cases derive from the Board’s application of
5 U.S.C. chapter 75. Semenov, 2023 MSPB 16, ¶¶ 15-19; see 5 U.S.C.
§ 4303(f)(4); 38 U.S.C. § 714(c)(3). Specifically, the Board found that the
agency must prove that its performance standards were reasonable and provided
for accurate measurement of the appellant’s performance, and that the appellant’s
performance was unacceptable according to that measurement. Semenov,
2023 MSPB 16, ¶ 19.
In considering the appellant’s performance standards, the administrative
judge reviewed her position description, carefully considering it along with the
key sub-elements or factors relating to fully successful performance under the
critical elements of pre/post contracting action and organizational/program
support. 0400 IAF, Tab 35 at 107-08, Tab 66 at 30-31; ID at 13-15. The
administrative judge found that the standards by which the appellant’s
performance was measured were consistent with her written performance
standards and the job responsibilities outlined in her position description. ID
at 14. The administrative judge concluded that the agency proved the accuracy
and reasonableness of the applicable performance standards in both critical
elements at issue. ID at 13. He further noted that the appellant failed to present
any evidence to challenge the accuracy or reasonableness of the performance7
standards regarding either element. ID at 16. Nor has the appellant challenged
this issue on review. PFR File, Tabs 1, 2. Consistent with the decision in
Semenov, we therefore find that the administrative judge properly found that the
agency demonstrated by substantial evidence that the appellant’s performance
standards were accurate and reasonable.
The administrative judge also examined the appellant’s performance and
found that substantial evidence supported the agency’s determination that she
failed to meet the fully successful level as to timeliness, quality of contract
documents, and file preparation and maintenance, which are factors relating to the
critical element of pre/post contracting actions, and that she also failed to meet
the fully successful level as to timeliness and clarity, conciseness, and
satisfactory results, which are factors relating to the critical element of
organizational/program support. ID at 14-17; 0400 IAF, Tab 35, Tab 66 at 27-31.
The administrative judge concluded that the agency met its burden under
38 U.S.C. § 714 in support of its decision to remove the appellant for
unacceptable performance.
In light of our decision to remand this appeal, which is discussed below, we
ultimately do not determine whether the administrative judge properly found that
the agency proved its charge. However, on remand, the administrative judge may
incorporate his prior determinations into his remand initial decision.
Remand is necessary to provide the parties an opportunity to present
evidence and argument regarding whether the agency’s error in applying
the substantial evidence standard and not the preponderant evidence
standard was harmful.
The deciding official sustained the appellant’s removal based on his
conclusion that substantial evidence supported the charge of unacceptable
performance of two critical elements. 0400 IAF, Tab 35 at 71. After the initial
decision in this appeal was issued, the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans Affairs ,
8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the8
Department of Veterans Affairs erred by applying a substantial evidence burden
of proof to its internal review of actions under 38 U.S.C. § 714. The court found
that substantial evidence is the standard of review to be applied by the Board
during its review of an agency action, not by the agency in taking the action. Id.
at 1298-1300. The court reasoned that, because 38 U.S.C. § 714 requires an
agency’s deciding official to “determine” whether “the performance or
misconduct . . . warrants” the action at issue, the deciding official must use a
preponderance of the evidence burden of proof. Id. at 1298-1301.
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 16 (recognizing that a new precedential
Federal Circuit decision applied to all cases pending with the Board). Because
the administrative judge and the parties did not have the benefit of Rodriguez,
they were unable to address its impact. We therefore remand this case for
adjudication of whether the agency’s apparent error in applying the substantial
evidence standard of proof was harmful.6 On remand, the administrative judge
should provide the parties with an opportunity to present evidence and argument
addressing whether the agency’s use of the substantial evidence standard
constituted harmful error. See 5 U.S.C. § 7701(a)(1). The administrative judge
should then address this affirmative defense in his remand initial decision.
6 In Semenov, the Board found it appropriate to apply the harmful error standard from
5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714. Semenov, 2023 MSPB
16, ¶ 23. A harmful error is an error by the agency in the application of its procedures
that is likely to have caused the agency to reach a different conclusion from the one it
would have reached in the absence or cure of the error. Id.; Ronso v. Department of the
Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant bears the
burden of proof to show harmful error by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C). 9
Remand is necessary to provide the parties an opportunity to present
evidence and argument regarding whether the agency properly determined
the penalty and whether the penalty of removal was reasonable.
The administrative judge did not address the reasonableness of the agency’s
removal penalty, finding it, or any consideration of mitigating or aggravating
factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981),7 immaterial under 38 U.S.C. § 714. ID at 12-13. In Semenov,
2023 MSPB 16, ¶¶ 45-49, however, the Board concluded that such factors must
be considered. In reaching its determination, the Board in Semenov relied on the
Federal Circuit’s decisions in Connor v. Department of Veterans Affairs , 8 F.4th
1319 (Fed. Cir. 2021); Brenner v. Department of Veterans Affairs , 990 F.3d 1313
(Fed. Cir. 2021); and Sayers v. Department of Veterans Affairs , 954 F.3d 1370
(Fed. Cir. 2020). Taken together, those cases provide that, even though the Board
is precluded from mitigating the penalty under 38 U.S.C. § 714(d)(2)(B) and
(d)(3)(C), the Board is required to review for substantial evidence the entirety of
the agency’s decision, including the penalty. That review is essentially to assure
that the agency conscientiously considered the relevant factors and struck a
responsible balance within the tolerable limits of reasonableness. Semenov,
2023 MSPB 16, ¶ 48.
Because the initial appeal was adjudicated before the Board’s decision in
Semenov or any of the Federal Circuit’s decisions regarding the Board’s
obligation to review the penalty in an action taken under the VA Accountability
Act, the administrative judge did not identify the penalty as an issue to be
adjudicated below or provide guidance to the parties on the penalty issue.
0400 IAF, Tab 58. On remand, he should permit the parties to submit evidence
and argument on this issue. In reviewing the penalty, the administrative judge
should determine whether the agency proved by substantial evidence that it
7 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board set
forth a nonexhaustive list of factors relevant in determining the appropriate penalty for
an act of misconduct.10
properly applied the relevant Douglas factors and whether the agency’s penalty
was reasonable and, if not, he should remand the appellant’s removal to the
agency for a new decision on the penalty. Semenov, 2023 MSPB 16, ¶ 50; see
Connor, 8 F.4th at 1326-27.
The appellant’s IRA appeal, MSPB Docket No. CH-1221-19-0332-W-1.
To establish Board jurisdiction in an IRA appeal, the appellant must prove
that she exhausted her remedy before OSC and make 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 in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see
5 U.S.C. §§ 1214(a)(3), 1221(c)(1). As discussed below, we agree with the
administrative judge that the appellant’s August 2017 disclosure was not
protected under 5 U.S.C. § 2302(b)(8). We further find, however, that the
administrative judge erred by failing to address the appellant’s claims that she
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (C) when she
filed her previous Board appeals and filed complaints with OSC.
The administrative judge properly found that the appellant failed to make a
protected disclosure under 5 U.S.C. § 2302(b)(8).
As discussed previously, in the December 4, 2018 OSC complaint that gave
rise to this IRA appeal, the appellant contended that the agency took a number of
personnel actions against her in retaliation for her earlier OSC complaints and
Board appeals. 0332 IAF, Tab 1 at 251, 289. As found by the administrative
judge, the appellant did not identify a new protected disclosure in her
December 4, 2018 OSC complaint, but rather relied on her August 2017 OSC
complaint referring to her email to various agency officials regarding agency
management directing employees to return to work after being released early from
training. ID at 24-25. The administrative judge then found that the appellant’s11
email did not constitute a protected disclosure because she failed to explain how
the directive to return to work amounted to a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial or specific danger to public health or safety. ID at 25. The
administrative judge considered the appellant’s vague references to a violation of
fair labor standards and agency policy regarding timekeeping for training events,
but found that she cited to no specific statute or regulation, and that her
“disclosure” amounted to mere disagreement between her and her supervisors
about what her duty status should be after early release from the training. ID
at 25-26.
On review, the appellant does not challenge the administrative judge’s
finding regarding this alleged protected disclosure. PFR File, Tabs 1-2. In any
event, the appellant’s vague allegations of a violation of the fair labor standards
statutes and agency policy and her subjective belief that management improperly
required her to return to duty following the early release from training do not
establish a reasonable belief of a protected disclosure under 5 U.S.C.
§ 2302(b)(8). See Heining v. General Services Administration , 61 M.S.P.R. 539,
554-55 (1994) (finding an employee’s expressions of disagreement with her
supervisors’ directions that did not disclose violations of a specific law, rule, or
regulation did not constitute protected disclosures); Padilla v. Department of the
Air Force, 55 M.S.P.R. 540, 543-44 (1992) (finding an employee’s allegations
did not constitute whistleblowing when, among other factors, they were vague
and failed to set forth any specific law, rule, or regulation she believed was
violated). Therefore, we agree with the administrative judge’s finding that the
appellant did not make a protected disclosure under 5 U.S.C. § 2302(b)(8) when
she complained to agency management about its directive that she return to work12
after early release from training.8 The administrative judge may incorporate this
analysis into his remand initial decision.
Remand is necessary for the administrative judge to adjudicate the
appellant’s claims of protected activity.
The administrative judge acknowledged but did not address the appellant’s
claims that the agency retaliated against her because she participated in protected
activity when she filed Board appeals and OSC complaints. Based on our review
of the written record, we find that the appellant established Board jurisdiction
over her IRA appeal by making nonfrivolous allegations that she engaged in
activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (C) and that those
activities were a contributing factor in covered personnel actions. See Hessami v.
Merit Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020) (finding
Board jurisdiction over an IRA appeal if the appellant has exhausted his remedies
before OSC and makes a nonfrivolous allegation that he engaged in
whistleblowing activity by making a protected disclosure that was a contributing
factor in an agency decision to take or fail to take a personnel action); Yunus v.
Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001) (same).
Accordingly, as discussed below, this appeal must be remanded for the
administrative judge to develop the record and adjudicate those claims.
An appellant may file an IRA appeal under 5 U.S.C. § 2302(b)(9)(A)(i) if
she alleges retaliation based on the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation with regard to remedying a
8 In the initial decision, after finding that the appellant failed to prove that she made a
protected disclosure that was a contributing factor to a covered personnel action, the
administrative judge proceeded to determine that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions absent the
appellant’s disclosures. ID at 26-27. This additional finding was error, as the Board
has held that under the Whistleblower Protection Enhancement Act of 2012, the Board
may not proceed to the clear and convincing evidence analysis unless it has first made a
finding that the appellant established her prima facie case. Clarke v. Department of
Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed.
Cir. 2015). The administrative judge’s error is of no significance in light of our
decision to vacate the entire initial decision for other reasons. 13
violation of 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 1221(a). As discussed above,
among other things, the appellant’s current IRA appeal involves her claims that
the agency took a number of personnel actions against her in retaliation for her
earlier Board appeals. The appellant further claimed that her supervisors were
aware of these appeals as they were named in them, and that her removal on
June 5, 2019, occurred less than 2 years after December 28, 2017, and March 6,
2018, the dates on which she filed her earlier Board appeals. 0332 IAF, Tab 1.
As such, the appellant has nonfrivolously alleged that a reasonable person could
conclude that her protected activity of filing two Board appeals in which she
alleged retaliation for whistleblowing was a contributing factor in the agency’s
decision to remove her.9 Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 25 (2016) (finding that a personnel action that occurs within 2 years of a
protected disclosure/activity satisfies the timing portion of the knowledge/timing
test).
Additionally, under 5 U.S.C. § 2302(b)(9)(C), an employee engages in
protected activity when she cooperates with or discloses information to OSC “in
accordance with applicable provisions of law.” Under that broadly worded
provision, any disclosure to OSC regardless of its content is protected so long as
such disclosure is made in accordance with applicable provision of law. Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8. Here, the appellant has alleged
that she filed two earlier OSC complaints, one on or about August 17, 2017, and
one on April 10, 2018. Therefore, the appellant has made a nonfrivolous
allegation that her OSC complaints constituted protected activity. The appellant
further alleges that because, in both complaints, she made allegations against her
supervisors, they necessarily became aware of the complaints, and that her
June 5, 2019 removal occurred less than 2 years after she filed the OSC
9 That the underlying protected disclosure raised in the appellant’s Board appeals—the
agency’s instruction that she return to work when training ended early—was not
protected as discussed in this decision is irrelevant to whether the filing of a Board
appeal identifying that disclosure is protected. 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(i). 14
complaints. IAF, Tab 1. Therefore, the appellant has nonfrivolously alleged that
a reasonable person could conclude that her protected activity of filing two OSC
complaints was a contributing factor in the agency’s decision to remove her from
her position. Scoggins, 123 M.S.P.R. 592, ¶ 25. Because the appellant has
established the Board’s jurisdiction over her IRA appeal based on her
nonfrivolous claims of protected activity under these statutory provisions, the
appeal must be remanded to the administrative judge for adjudication on the
merits. Linder, 122 M.S.P.R. 14, ¶ 6.
CONCLUSION
As discussed above, these joined appeals are remanded to the
administrative judge to provide the parties an opportunity to present evidence and
argument regarding: (1) whether the agency’s error in applying the substantial
evidence standard and not the preponderant evidence standard in sustaining the
proposed removal constituted harmful error; and (2) whether the agency properly
applied the relevant Douglas factors and the penalty of removal is reasonable.
Further, on remand, the administrative judge should also allow the parties to
submit evidence and argument regarding whether the appellant’s protected
activity was a contributing factor in the agency’s decision to take the identified
personnel actions. If the administrative judge finds that the appellant met her
burden of proof regarding one or both of her protected activity claims, he shall
afford the agency the opportunity to prove by clear and convincing evidence that
it would have taken the same personnel actions absent the protected activity. In
adjudicating these appeals on remand, the administrative judge should afford the
appellant the opportunity to request a hearing, limited to the issues to be
addressed on remand.10 In addition, on remand the administrative judge should
10 We recognize that the appellant previously waived her right to a hearing, but she
made that decision not knowing of the additional elements of proof the agency was
required to meet. Thus, she should have the opportunity to question agency witnesses,
including the deciding official, regarding the issues present on remand.15
develop the record on the Federal Labor Relations Authority decisions the
appellant seeks to file on review and shall address the appellant’s argument,
including its relevancy to this appeal.11 PFR File, Tab 6 at 4. After developing
the record consistent with these instructions, the administrative judge shall issue a
new initial decision identifying all material issues of fact and law, summarizing
the evidence, and explaining his conclusions of fact and law.12 Spithaler v. Office
of Personnel Management , 1 M.S.P.R. 587, 589 (1980).
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 Regarding the appellant’s request to submit documents relating to her appointment to,
and performance with, another Federal agency subsequent to her removal from the
Department of Veterans Affairs and her request to submit documents regarding the
purported rescission of a job offer in December 2019, although we question the
relevancy of the documents to the issues presented by this appeal, the administrative
judge should also address the documents, including their relevancy, in his remand initial
decision. PFR File, Tab 6 at 4-5.
12 Although the administrative judge may incorporate his previous findings regarding
the appellant’s performance standards and her performance and his finding that the
appellant’s disclosure was not protected under 5 U.S.C. § 2302(b)(8), if any evidence or
argument presented on remand affects his analysis of those issues, he should address
such evidence or argument in the remand initial decision. See Semenov, 2023 MSPB
16, ¶ 20, 25, 27, 39.16 | Young_Rashonda_A_CH-0714-19-0400-I-1_CH-1221-19-0332-W-1_Remand_Order.pdf | 2024-03-15 | RASHONDA A. YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0332-W-1, March 15, 2024 | CH-1221-19-0332-W-1 | NP |
2,063 | https://www.mspb.gov/decisions/nonprecedential/Young_Rashonda_A_CH-0714-19-0400-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RASHONDA A. YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
CH-0714-19-0400-I-1
CH-1221-19-0332-W-1
DATE: March 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rashonda A. Young , Baltimore, Maryland, pro se.
Aisha M. Jones and Shelia Fitzpatrick , Esquire, Hines, Illinois,
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 in these
joined appeals,2 which affirmed the agency’s action removing her from her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The administrative judge joined the two appeals for adjudication and issued a single
initial decision that was entered into both case files. Young v. Department of Veterans
Affairs, MSPB Docket No. CH-0714-19-0400-I-1, Initial Appeal File, Tabs 24, 83;
Young v. Department of Veterans Affairs , MSPB Docket No. CH-1221-19-0332-W-1,
position pursuant to the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.
No. 115-41, § 202(a), 131 Stat 862, 869-73 (2017) (codified as amended at
38 U.S.C. § 714), and denied her request for corrective action in connection with
her 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 Central Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant began her employment with the agency on June 12, 2016, as
a Contract Specialist. Young v. Department of Veterans Affairs , MSPB Docket
No. CH-0714-19-0400-I-1, Initial Appeal File (0400 IAF), Tab 34 at 103.
Thereafter, she filed several matters with the Board, two of which are addressed
in this decision.
In July and August 2017, the appellant’s supervisor began to note problems
with the appellant’s performance, specifically regarding the critical element of
pre/post award contracting actions. 0400 IAF, Tab 34 at 8-9, Tab 35 at 116-17,
Tab 66 at 29. On or about August 17, 2017, the appellant filed a whistleblower
retaliation complaint with the Office of Special Counsel (OSC). 0400 IAF,
Tab 35 at 79; Young v. Department of Veterans Affairs , MSPB Docket No. CH-
1221-19-0332-W-1, Initial Appeal File (0332 IAF), Tab 1 at 253-63. On
December 28, 2017, while OSC was investigating the appellant’s complaint, she
filed a Board appeal alleging that her November 2017 performance appraisal,
which found her performance unacceptable in pre/post award contracting actions,
organizational/program support, and communications was retaliatory. Young v.
Department of Veterans Affairs , MSPB Docket No. CH-3443-18-0124-I-1, Initial
Appeal File, Tab 1 at 3, 32. On March 29, 2018, while that appeal was pending
Initial Appeal File, Tabs 29, 88. We will cite to the initial decision in the lead docket
number, CH-0714-19-0400-I-1.2
before the administrative judge, OSC notified the appellant that it was
terminating its investigation into her August 2017 complaint because she sought
corrective action from the Board 120 days after she had filed her OSC complaint.
0400 IAF, Tab 35 at 79. In its termination letter, OSC described the appellant’s
protected disclosure as sending an email to numerous agency employees on
August 3, 2017, challenging as improper and a violation of agency policy
management’s requirement that employees attending training return to duty when
the training is completed before the end of the employee’s duty day.3 Id. OSC
described the agency’s purportedly retaliatory actions as removing the appellant
from the training for being disruptive, reprimanding her on August 29, 2017, for
failure to follow instructions, counseling her on August 30, 2017, regarding her
performance, and lowering her performance rating on November 9, 2017. Id.
Meanwhile, on February 14, 2018, the agency proposed the appellant’s
removal under the authority of 38 U.S.C. § 714, based on her failure to perform
satisfactorily in the pre/post award contracting actions and organizational/
program support critical elements of her position. 0400 IAF, Tab 35 at 107-09.
On March 5, 2018, the agency deciding official found that, regarding both critical
elements, the notice of proposed removal was supported by substantial evidence.
Id. at 84. The appellant appealed the removal action to the Board on March 6,
2018. Young v. Department of Veterans Affairs , MSPB Docket No. CH-0714-18-
0245-I-1, Initial Appeal File (0245 IAF), Tab 1. Because 38 U.S.C. § 714(e)(2)
prohibits the agency from taking an adverse action against an employee while an
investigation of the employee’s claim of whistleblower reprisal is pending, the
agency agreed in a settlement agreement to rescind the appellant’s removal and
reinstate the appellant while an investigation was ongoing. 0245 IAF, Tabs 15,
17. That settlement agreement also resolved the appellant’s December 28, 2017
3 The appellant further explained that, when training similar to the training she was
attending was held at a remote location, employees were not required to return to work
for the remainder of the day if training ended before the end of the employee’s duty
day. 0332 IAF, Tab 1 at 254-55, 258-63. 3
Board appeal. 0245 IAF, Tab 17. As a result of the settlement agreement, the
administrative judge issued separate initial decisions dismissing the two appeals
(MSPB Docket Nos. CH-3443-18-0124-I-1 and CH-0714-18-0245-I-1).4 Young v.
Department of Veterans Affairs , MSPB Docket No. CH-3443-18-0124-I-1, Initial
Decision (Apr. 12, 2018) ; Young v. Department of Veterans Affairs , MSPB
Docket No. CH-0714-18-0245-I-1 Initial Decision (Apr. 12, 2018); 0245 IAF,
Tab 18.
As noted above, on March 29, 2018, OSC concluded its investigation into
the appellant’s August 2017 complaint. 0400 IAF, Tab 35 at 79. Thereafter, on
April 10, 2018, the agency reissued the removal decision based on the proposed
removal originally issued on February 14, 2018. Id. at 71-75. The removal was
to be effective on April 11, 2018. Id. at 71. However, on April 10, 2018, the
same day she received the reissued removal decision letter, the appellant filed a
second complaint with OSC wherein she largely repeated her previous allegations
to OSC and also claimed that the agency retaliated against her because of her
OSC complaint. Id. at 56, 62-69. Pursuant to the VA Accountability Act, the
removal decision was again stayed pending another investigation into the
appellant’s renewed whistleblower reprisal claims. 0400 IAF, Tab 66 at 23.
Following the second stay of the appellant’s removal, the agency assigned
the appellant to a different workspace and, because of her performance
deficiencies, did not assign her significant substantive work and did not allow her
to participate in further contract specialist training. 0400 IAF, Tab 66 at 23-25.
In June 2018, the agency denied the appellant a scheduled within -grade increase,
and in November 2018, it issued the appellant another unacceptable performance
appraisal. 0400 IAF, Tab 35 at 51-52, Tab 66 at 25-26. On December 4, 2018,
the appellant filed a third OSC complaint. 0332 IAF, Tab 1 at 284, 289-91.
OSC terminated its investigation into the appellant’s December 4, 2018
complaint on February 20, 2019, describing the appellant’s complaint as alleging
4 These initial decisions became final when neither party filed a petition for review. 4
that her 2017 and 2018 performance appraisals, the denial of training
opportunities, and the failure to assign her work were all in reprisal for her
previous OSC complaints and Board appeals. 0400 IAF, Tab 1 at 63. On
April 16, 2019, the appellant filed an IRA appeal with the Board and requested a
hearing. 0332 IAF, Tab 1. The administrative judge acknowledged that appeal
and assigned it docket number CH-1221-19-0332-W-1. 0332 IAF, Tab 2.
While the appellant’s April 16, 2019 appeal was pending before the
administrative judge, on June 5, 2019, the agency notified the appellant by email
that the stay of her April 10, 2018 reissued removal decision had been lifted, and
that her removal based on unacceptable performance was effective immediately.
0400 IAF, Tab 34 at 158. The following day, the appellant filed an appeal of her
removal and requested a hearing. 0400 IAF, Tab 1. The administrative judge
acknowledged that appeal and assigned it docket number CH-0714-19-0400-I-1.
0400 IAF, Tab 2.
As noted previously, the administrative judge joined the appellant’s
removal appeal with her IRA appeal. 0400 IAF, Tabs 24, 83; 0332 IAF, Tabs 29,
88. At the beginning of the scheduled hearing, the appellant withdrew her
hearing request, and the administrative judge set a date for the close of the record.
0332 IAF, Tab 68; 0400 IAF, Tab 63. Both parties filed additional submissions.
0332 IAF, Tabs 71-72, 76-82; 0400 IAF, Tabs 66-67, 71-77.
In the initial decision, the administrative judge first addressed the appeal of
the removal action taken under 38 U.S.C. § 714 and, in doing so, rejected the
appellant’s claim that she was not covered by that statutory scheme. 0400 IAF,
Tab 83, Initial Decision (ID) at 18-20. The administrative judge found that the
agency proved the accuracy and reasonableness of the appellant’s performance
standards and that her performance under both critical elements was
unacceptable. ID at 13-14. Specifically, the administrative judge found that the
agency proved by substantial evidence that the appellant’s performance did not
meet the requisite criteria for performance at the fully successful level in either of5
the two critical elements charged, and that, therefore, the agency met its burden
under 38 U.S.C. § 714 in support of the removal action. ID at 15-18. As such,
the administrative judge affirmed the agency’s decision to remove the appellant
from her position. ID at 2, 18.
The administrative judge then addressed the appellant’s IRA appeal. ID
at 21-27. He found that the appellant failed to demonstrate that her complaints
concerning the instruction to return to duty when training ended early constituted
a protected disclosure under the whistleblower protection statutes. ID at 24-26.
The administrative judge went on to find that, even if the disclosure was
protected, the agency established by clear and convincing evidence that it would
have taken the same action in the absence of any protected disclosures. ID
at 26-27. Accordingly, the administrative judge denied the appellant’s request for
corrective action. ID at 2, 27.
The appellant has filed a petition for review and a supplement thereto.5
Petition for Review (PFR) File, Tabs 1-2. The agency has filed a response in
opposition to the petition, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 4-5.
ANALYSIS
In the analysis that follows, we first address the appellant’s removal appeal
and find that the administrative judge correctly found that the appellant’s
performance standards were accurate and reasonable and that she failed to
perform at a fully successful level. Despite those findings, we next find that
remand is necessary to address possible harmful error by the agency in taking the
removal action and to address the agency’s penalty selection. We then turn to the
appellant’s IRA appeal and find that, while the administrative judge correctly
5 As the 0400 and 0332 appeals remain joined on petition for review, the parties’
petition for review filings have been added to the record in both docket numbers.
Because the petition for review records are identical, we will cite generally to the
petition for review file. 6
found that the appellant did not make a protected disclosure, remand is necessary
to address whether the appellant engaged in protected activity.
The appellant’s removal appeal, MSPB Docket No. CH-0714-19-0400-I-1.
The administrative judge correctly found that the agency proved by
substantial evidence that the appellant’s performance standards were
accurate and reasonable and that the appellant failed to perform at a
successful level.
In Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 11-20,
the Board examined performance-based actions taken by the agency under
38 U.S.C. § 714. The Board found that the elements for proving such a charge
under 5 U.S.C. chapter 43 do not apply to an action taken under 38 U.S.C. § 714,
and that the proper elements for such cases derive from the Board’s application of
5 U.S.C. chapter 75. Semenov, 2023 MSPB 16, ¶¶ 15-19; see 5 U.S.C.
§ 4303(f)(4); 38 U.S.C. § 714(c)(3). Specifically, the Board found that the
agency must prove that its performance standards were reasonable and provided
for accurate measurement of the appellant’s performance, and that the appellant’s
performance was unacceptable according to that measurement. Semenov,
2023 MSPB 16, ¶ 19.
In considering the appellant’s performance standards, the administrative
judge reviewed her position description, carefully considering it along with the
key sub-elements or factors relating to fully successful performance under the
critical elements of pre/post contracting action and organizational/program
support. 0400 IAF, Tab 35 at 107-08, Tab 66 at 30-31; ID at 13-15. The
administrative judge found that the standards by which the appellant’s
performance was measured were consistent with her written performance
standards and the job responsibilities outlined in her position description. ID
at 14. The administrative judge concluded that the agency proved the accuracy
and reasonableness of the applicable performance standards in both critical
elements at issue. ID at 13. He further noted that the appellant failed to present
any evidence to challenge the accuracy or reasonableness of the performance7
standards regarding either element. ID at 16. Nor has the appellant challenged
this issue on review. PFR File, Tabs 1, 2. Consistent with the decision in
Semenov, we therefore find that the administrative judge properly found that the
agency demonstrated by substantial evidence that the appellant’s performance
standards were accurate and reasonable.
The administrative judge also examined the appellant’s performance and
found that substantial evidence supported the agency’s determination that she
failed to meet the fully successful level as to timeliness, quality of contract
documents, and file preparation and maintenance, which are factors relating to the
critical element of pre/post contracting actions, and that she also failed to meet
the fully successful level as to timeliness and clarity, conciseness, and
satisfactory results, which are factors relating to the critical element of
organizational/program support. ID at 14-17; 0400 IAF, Tab 35, Tab 66 at 27-31.
The administrative judge concluded that the agency met its burden under
38 U.S.C. § 714 in support of its decision to remove the appellant for
unacceptable performance.
In light of our decision to remand this appeal, which is discussed below, we
ultimately do not determine whether the administrative judge properly found that
the agency proved its charge. However, on remand, the administrative judge may
incorporate his prior determinations into his remand initial decision.
Remand is necessary to provide the parties an opportunity to present
evidence and argument regarding whether the agency’s error in applying
the substantial evidence standard and not the preponderant evidence
standard was harmful.
The deciding official sustained the appellant’s removal based on his
conclusion that substantial evidence supported the charge of unacceptable
performance of two critical elements. 0400 IAF, Tab 35 at 71. After the initial
decision in this appeal was issued, the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans Affairs ,
8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the8
Department of Veterans Affairs erred by applying a substantial evidence burden
of proof to its internal review of actions under 38 U.S.C. § 714. The court found
that substantial evidence is the standard of review to be applied by the Board
during its review of an agency action, not by the agency in taking the action. Id.
at 1298-1300. The court reasoned that, because 38 U.S.C. § 714 requires an
agency’s deciding official to “determine” whether “the performance or
misconduct . . . warrants” the action at issue, the deciding official must use a
preponderance of the evidence burden of proof. Id. at 1298-1301.
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 16 (recognizing that a new precedential
Federal Circuit decision applied to all cases pending with the Board). Because
the administrative judge and the parties did not have the benefit of Rodriguez,
they were unable to address its impact. We therefore remand this case for
adjudication of whether the agency’s apparent error in applying the substantial
evidence standard of proof was harmful.6 On remand, the administrative judge
should provide the parties with an opportunity to present evidence and argument
addressing whether the agency’s use of the substantial evidence standard
constituted harmful error. See 5 U.S.C. § 7701(a)(1). The administrative judge
should then address this affirmative defense in his remand initial decision.
6 In Semenov, the Board found it appropriate to apply the harmful error standard from
5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714. Semenov, 2023 MSPB
16, ¶ 23. A harmful error is an error by the agency in the application of its procedures
that is likely to have caused the agency to reach a different conclusion from the one it
would have reached in the absence or cure of the error. Id.; Ronso v. Department of the
Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant bears the
burden of proof to show harmful error by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C). 9
Remand is necessary to provide the parties an opportunity to present
evidence and argument regarding whether the agency properly determined
the penalty and whether the penalty of removal was reasonable.
The administrative judge did not address the reasonableness of the agency’s
removal penalty, finding it, or any consideration of mitigating or aggravating
factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981),7 immaterial under 38 U.S.C. § 714. ID at 12-13. In Semenov,
2023 MSPB 16, ¶¶ 45-49, however, the Board concluded that such factors must
be considered. In reaching its determination, the Board in Semenov relied on the
Federal Circuit’s decisions in Connor v. Department of Veterans Affairs , 8 F.4th
1319 (Fed. Cir. 2021); Brenner v. Department of Veterans Affairs , 990 F.3d 1313
(Fed. Cir. 2021); and Sayers v. Department of Veterans Affairs , 954 F.3d 1370
(Fed. Cir. 2020). Taken together, those cases provide that, even though the Board
is precluded from mitigating the penalty under 38 U.S.C. § 714(d)(2)(B) and
(d)(3)(C), the Board is required to review for substantial evidence the entirety of
the agency’s decision, including the penalty. That review is essentially to assure
that the agency conscientiously considered the relevant factors and struck a
responsible balance within the tolerable limits of reasonableness. Semenov,
2023 MSPB 16, ¶ 48.
Because the initial appeal was adjudicated before the Board’s decision in
Semenov or any of the Federal Circuit’s decisions regarding the Board’s
obligation to review the penalty in an action taken under the VA Accountability
Act, the administrative judge did not identify the penalty as an issue to be
adjudicated below or provide guidance to the parties on the penalty issue.
0400 IAF, Tab 58. On remand, he should permit the parties to submit evidence
and argument on this issue. In reviewing the penalty, the administrative judge
should determine whether the agency proved by substantial evidence that it
7 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board set
forth a nonexhaustive list of factors relevant in determining the appropriate penalty for
an act of misconduct.10
properly applied the relevant Douglas factors and whether the agency’s penalty
was reasonable and, if not, he should remand the appellant’s removal to the
agency for a new decision on the penalty. Semenov, 2023 MSPB 16, ¶ 50; see
Connor, 8 F.4th at 1326-27.
The appellant’s IRA appeal, MSPB Docket No. CH-1221-19-0332-W-1.
To establish Board jurisdiction in an IRA appeal, the appellant must prove
that she exhausted her remedy before OSC and make 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 in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see
5 U.S.C. §§ 1214(a)(3), 1221(c)(1). As discussed below, we agree with the
administrative judge that the appellant’s August 2017 disclosure was not
protected under 5 U.S.C. § 2302(b)(8). We further find, however, that the
administrative judge erred by failing to address the appellant’s claims that she
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (C) when she
filed her previous Board appeals and filed complaints with OSC.
The administrative judge properly found that the appellant failed to make a
protected disclosure under 5 U.S.C. § 2302(b)(8).
As discussed previously, in the December 4, 2018 OSC complaint that gave
rise to this IRA appeal, the appellant contended that the agency took a number of
personnel actions against her in retaliation for her earlier OSC complaints and
Board appeals. 0332 IAF, Tab 1 at 251, 289. As found by the administrative
judge, the appellant did not identify a new protected disclosure in her
December 4, 2018 OSC complaint, but rather relied on her August 2017 OSC
complaint referring to her email to various agency officials regarding agency
management directing employees to return to work after being released early from
training. ID at 24-25. The administrative judge then found that the appellant’s11
email did not constitute a protected disclosure because she failed to explain how
the directive to return to work amounted to a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial or specific danger to public health or safety. ID at 25. The
administrative judge considered the appellant’s vague references to a violation of
fair labor standards and agency policy regarding timekeeping for training events,
but found that she cited to no specific statute or regulation, and that her
“disclosure” amounted to mere disagreement between her and her supervisors
about what her duty status should be after early release from the training. ID
at 25-26.
On review, the appellant does not challenge the administrative judge’s
finding regarding this alleged protected disclosure. PFR File, Tabs 1-2. In any
event, the appellant’s vague allegations of a violation of the fair labor standards
statutes and agency policy and her subjective belief that management improperly
required her to return to duty following the early release from training do not
establish a reasonable belief of a protected disclosure under 5 U.S.C.
§ 2302(b)(8). See Heining v. General Services Administration , 61 M.S.P.R. 539,
554-55 (1994) (finding an employee’s expressions of disagreement with her
supervisors’ directions that did not disclose violations of a specific law, rule, or
regulation did not constitute protected disclosures); Padilla v. Department of the
Air Force, 55 M.S.P.R. 540, 543-44 (1992) (finding an employee’s allegations
did not constitute whistleblowing when, among other factors, they were vague
and failed to set forth any specific law, rule, or regulation she believed was
violated). Therefore, we agree with the administrative judge’s finding that the
appellant did not make a protected disclosure under 5 U.S.C. § 2302(b)(8) when
she complained to agency management about its directive that she return to work12
after early release from training.8 The administrative judge may incorporate this
analysis into his remand initial decision.
Remand is necessary for the administrative judge to adjudicate the
appellant’s claims of protected activity.
The administrative judge acknowledged but did not address the appellant’s
claims that the agency retaliated against her because she participated in protected
activity when she filed Board appeals and OSC complaints. Based on our review
of the written record, we find that the appellant established Board jurisdiction
over her IRA appeal by making nonfrivolous allegations that she engaged in
activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) and (C) and that those
activities were a contributing factor in covered personnel actions. See Hessami v.
Merit Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020) (finding
Board jurisdiction over an IRA appeal if the appellant has exhausted his remedies
before OSC and makes a nonfrivolous allegation that he engaged in
whistleblowing activity by making a protected disclosure that was a contributing
factor in an agency decision to take or fail to take a personnel action); Yunus v.
Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001) (same).
Accordingly, as discussed below, this appeal must be remanded for the
administrative judge to develop the record and adjudicate those claims.
An appellant may file an IRA appeal under 5 U.S.C. § 2302(b)(9)(A)(i) if
she alleges retaliation based on the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation with regard to remedying a
8 In the initial decision, after finding that the appellant failed to prove that she made a
protected disclosure that was a contributing factor to a covered personnel action, the
administrative judge proceeded to determine that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions absent the
appellant’s disclosures. ID at 26-27. This additional finding was error, as the Board
has held that under the Whistleblower Protection Enhancement Act of 2012, the Board
may not proceed to the clear and convincing evidence analysis unless it has first made a
finding that the appellant established her prima facie case. Clarke v. Department of
Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed.
Cir. 2015). The administrative judge’s error is of no significance in light of our
decision to vacate the entire initial decision for other reasons. 13
violation of 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 1221(a). As discussed above,
among other things, the appellant’s current IRA appeal involves her claims that
the agency took a number of personnel actions against her in retaliation for her
earlier Board appeals. The appellant further claimed that her supervisors were
aware of these appeals as they were named in them, and that her removal on
June 5, 2019, occurred less than 2 years after December 28, 2017, and March 6,
2018, the dates on which she filed her earlier Board appeals. 0332 IAF, Tab 1.
As such, the appellant has nonfrivolously alleged that a reasonable person could
conclude that her protected activity of filing two Board appeals in which she
alleged retaliation for whistleblowing was a contributing factor in the agency’s
decision to remove her.9 Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 25 (2016) (finding that a personnel action that occurs within 2 years of a
protected disclosure/activity satisfies the timing portion of the knowledge/timing
test).
Additionally, under 5 U.S.C. § 2302(b)(9)(C), an employee engages in
protected activity when she cooperates with or discloses information to OSC “in
accordance with applicable provisions of law.” Under that broadly worded
provision, any disclosure to OSC regardless of its content is protected so long as
such disclosure is made in accordance with applicable provision of law. Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8. Here, the appellant has alleged
that she filed two earlier OSC complaints, one on or about August 17, 2017, and
one on April 10, 2018. Therefore, the appellant has made a nonfrivolous
allegation that her OSC complaints constituted protected activity. The appellant
further alleges that because, in both complaints, she made allegations against her
supervisors, they necessarily became aware of the complaints, and that her
June 5, 2019 removal occurred less than 2 years after she filed the OSC
9 That the underlying protected disclosure raised in the appellant’s Board appeals—the
agency’s instruction that she return to work when training ended early—was not
protected as discussed in this decision is irrelevant to whether the filing of a Board
appeal identifying that disclosure is protected. 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(i). 14
complaints. IAF, Tab 1. Therefore, the appellant has nonfrivolously alleged that
a reasonable person could conclude that her protected activity of filing two OSC
complaints was a contributing factor in the agency’s decision to remove her from
her position. Scoggins, 123 M.S.P.R. 592, ¶ 25. Because the appellant has
established the Board’s jurisdiction over her IRA appeal based on her
nonfrivolous claims of protected activity under these statutory provisions, the
appeal must be remanded to the administrative judge for adjudication on the
merits. Linder, 122 M.S.P.R. 14, ¶ 6.
CONCLUSION
As discussed above, these joined appeals are remanded to the
administrative judge to provide the parties an opportunity to present evidence and
argument regarding: (1) whether the agency’s error in applying the substantial
evidence standard and not the preponderant evidence standard in sustaining the
proposed removal constituted harmful error; and (2) whether the agency properly
applied the relevant Douglas factors and the penalty of removal is reasonable.
Further, on remand, the administrative judge should also allow the parties to
submit evidence and argument regarding whether the appellant’s protected
activity was a contributing factor in the agency’s decision to take the identified
personnel actions. If the administrative judge finds that the appellant met her
burden of proof regarding one or both of her protected activity claims, he shall
afford the agency the opportunity to prove by clear and convincing evidence that
it would have taken the same personnel actions absent the protected activity. In
adjudicating these appeals on remand, the administrative judge should afford the
appellant the opportunity to request a hearing, limited to the issues to be
addressed on remand.10 In addition, on remand the administrative judge should
10 We recognize that the appellant previously waived her right to a hearing, but she
made that decision not knowing of the additional elements of proof the agency was
required to meet. Thus, she should have the opportunity to question agency witnesses,
including the deciding official, regarding the issues present on remand.15
develop the record on the Federal Labor Relations Authority decisions the
appellant seeks to file on review and shall address the appellant’s argument,
including its relevancy to this appeal.11 PFR File, Tab 6 at 4. After developing
the record consistent with these instructions, the administrative judge shall issue a
new initial decision identifying all material issues of fact and law, summarizing
the evidence, and explaining his conclusions of fact and law.12 Spithaler v. Office
of Personnel Management , 1 M.S.P.R. 587, 589 (1980).
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 Regarding the appellant’s request to submit documents relating to her appointment to,
and performance with, another Federal agency subsequent to her removal from the
Department of Veterans Affairs and her request to submit documents regarding the
purported rescission of a job offer in December 2019, although we question the
relevancy of the documents to the issues presented by this appeal, the administrative
judge should also address the documents, including their relevancy, in his remand initial
decision. PFR File, Tab 6 at 4-5.
12 Although the administrative judge may incorporate his previous findings regarding
the appellant’s performance standards and her performance and his finding that the
appellant’s disclosure was not protected under 5 U.S.C. § 2302(b)(8), if any evidence or
argument presented on remand affects his analysis of those issues, he should address
such evidence or argument in the remand initial decision. See Semenov, 2023 MSPB
16, ¶ 20, 25, 27, 39.16 | Young_Rashonda_A_CH-0714-19-0400-I-1 Remand Order.pdf | 2024-03-15 | RASHONDA A. YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0332-W-1, March 15, 2024 | CH-1221-19-0332-W-1 | NP |
2,064 | https://www.mspb.gov/decisions/nonprecedential/Seda_Anthony_W_PH-3443-21-0051-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY WAYNE SEDA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3443-21-0051-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
nthony Wayne Seda , Aberdeen, Maryland, pro se.
Shelly S. Glenn , 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 the 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).
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 reflect the Board’s consideration of the appellant’s response to the
administrative judge’s jurisdictional order, we AFFIRM the initial decision.
BACKGROUND
On October 30, 2020, the appellant submitted an appeal and supplement
thereto in which he contended, among other things, that the agency did not select
him for certain agency positions even though he “was the best candidate who
exceeded the specialized experience,” in reprisal for filing an equal employment
opportunity (EEO) “charge complaint investigation and lawsuit” 19 years earlier.
Initial Appeal File (IAF), Tab 1 at 1, Tab 2 at 2-3. He included, among other
things, a disclosure form and prohibited personnel practice complaint he had
submitted to the Office of Special Counsel (OSC). IAF, Tab 2 at 6-31, 45-56.
The appellant asserted in his OSC complaint that he had made a protected
disclosure in September 2001 about a hostile work environment. Id. at 17-18. He
also claimed that a Board settlement attorney reported to him in a December 2019
telephone call that an attorney at the agency’s Loch Raven Medical Center had
told the settlement attorney that the appellant’s name was on a “do not hire” list.
Id. at 2, 9, 18-20, 23.
The administrative judge issued a November 24, 2020 jurisdictional order
in which she explained to the appellant that the Board does not generally have
3
jurisdiction to hear appeals from nonselections. IAF, Tab 4 at 1. She gave the
appellant notice concerning the elements and burdens that he must meet to
establish jurisdiction over an individual right of action (IRA) appeal. Id. at 2-6.
The appellant did not reply to the jurisdictional order within the 10 calendar day
deadline set by the administrative judge, who then issued a second order on
December 7, 2020, requiring that the appellant’s response be received by her not
later than December 11, 2020. IAF, Tab 6 at 2. In a December 14, 2020 initial
decision, the administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID) at 1. She noted the appellant’s failure to
respond to her jurisdictional order, but rather than dismiss the appeal as a
sanction for his failure to respond to her orders, she found his allegation that he
should have been hired because he was the best candidate failed to comprise a
nonfrivolous allegation of Board jurisdiction over the appealed nonselections. ID
at 2-3; IAF, Tab 1 at 1.
On December 14, 2020, the appellant filed a response to the administrative
judge’s jurisdictional order. IAF, Tab 10. He asserted in his sworn submission
that he had received the administrative judge’s jurisdictional order just 2 days
earlier, on December 12, 2020. Id. at 1, 6. In his timely filed petition for review,
the appellant reiterated that chronology, asserting that the Postal Service had
experienced major mail backlogs due to the COVID-19 pandemic. Petition for
Review (PFR) File, Tab 1 at 1. The rest of the documents the appellant includes
with his petition for review are already in the record or repeat evidence and
argument that is already a part of the record. PFR File, Tab 1 at 5-9, 15-109.
The agency has filed a response to the appellant’s petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 4, 6.
4
DISCUSSION OF ARGUMENTS ON REVIEW
Because the appellant diligently replied to the administrative judge’s
jurisdictional order, we consider his response on review.
To establish good cause for an untimely filing a party must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Mozqueda v. Department of Defense , 54 M.S.P.R. 152, 156 (1992);
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Department of the Army , 68 M.S.P.R. 60, 62–63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
As noted above, the appellant asserted in a sworn pleading that he received
the administrative judge’s jurisdictional order on December 12, 2020, a Saturday,
and the day after the deadline for responding set by the administrative judge, and
that he responded 2 days later on December 14, 2020, a Monday.2 IAF, Tab 10;
PFR File, Tab 1 at 1. Under the circumstances present here, when the undisputed
evidence of record shows that the appellant promptly responded to the
administrative judge’s order on the next business day after his receipt of the order
we find that the appellant acted with diligence. Accordingly, his submission
should have been considered by the administrative judge and we will consider his
2 The appellant’s contention that it took 5 days for the order to be delivered by the U.S.
Postal Service from the administrative judge located in New York City to his address in
Aberdeen, Maryland, is completely reasonable in light of typical holiday-season mail
delays and, as the appellant asserts, mail delays due to the COVID-19 pandemic, which
were well documented. Providing for 5 days for the delivery of an item served through
the mail is consistent with the Board’s regulations. 5 C.F.R. § 1201.23.
5
response on review, along with his petition for review. IAF, Tab 10; PFR File,
Tab 1.
The appellant’s jurisdictional response fails to establish jurisdiction over his IRA
appeal, and his petition for review fails to show that the administrative judge
erred in dismissing the appeal for lack of jurisdiction.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that (1) he made a protected disclosure described under 5 U.S.C.
§2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). An appellant filing an IRA appeal has not
exhausted his OSC remedy unless he has filed a complaint alleging retaliation for
a protected activity and seeking corrective action with OSC and either OSC has
notified him that it was terminating its investigation of his allegations or 120
calendar days have passed since he sought corrective action. 5 U.S.C. § 1214(a)
(3); Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010); 5
C.F.R. § 1209.5(a).
Based on the appellant’s appeal and supplement, IAF, Tabs 1-2, the
administrative judge, without further analysis, found that the appellant’s
allegation that the agency should have hired him because he was the best
candidate failed to amount to a nonfriovolous allegation that the Board had
jurisdiction over the nonselections he appealed, ID at 2-3. As explained below,
our review of the appellant’s evidence, including his jurisdictional response and
arguments on review, also shows that he failed to establish jurisdiction over his
IRA appeal.
In his initial submissions to the Board, the appellant argued without
elaboration or explanation that the agency had committed a prohibited personnel
6
practice by violating 5 U.S.C. § 2302(b)(1), (4), (8), (9), (11), and (12).3 IAF,
Tab 1 at 1-2. The appellant explained that he “should have been hired under the
special authorities” for disabled veterans because he “was the best candidate who
exceeded the specialized experience” required for the position. IAF, Tab 1 at 1.
The appellant included two job announcements for agency positions from USA
Jobs. IAF, Tab 1 at 6-23. He also included an October 7, 2020 letter from the
OSC Disclosure Unit explaining that it had closed his disclosure matter because
that unit does not review allegations of prohibited personnel practices. Id. at 3.
The appellant included an October 14, 2020 letter from the Department of Labor,
Office of Federal Contract Compliance Programs (OFCCP) explaining that it
lacked jurisdiction over his complaint of unfair treatment at the Department of
Veterans Affairs. Id. at 4-5. He also submitted his September 15, 2020 OSC
prohibited personnel practice complaint.4 IAF, Tab 2 at 1-5, 12-31, 45-56.
In his response to the administrative judge’s jurisdictional order, the
appellant explained that he had resigned from his job as a telephone operator at
the agency’s Baltimore, Maryland medical center in September 2001, and at that
time he had made reports to the human resources department and his supervisor
about a toxic environment. IAF, Tab 10 at 2-4, 8, 16-17. He also mentioned
3 The intent of the appellant’s initial submissions to the Board was unclear as the appeal
and supplemental attachment he sent to the Board were comprised of letters addressed
to other agencies and the attachments thereto. IAF, Tab 1 at 1, Tab 2 at 1.
Nevertheless, because the appellant submitted the letters to the Board, they were
forwarded to the appropriate regional office for adjudication as an appeal. IAF, Tab 3
at 1. Additionally, we note that the appellant filed four other petitions for review: Seda
v. Department of Transportation , DC-3330-17-0332-I-1, a Veterans Employment
Opportunities Act of 1998 (VEOA) nonselection appeal; Seda v. Social Security
Administration, PH-0752-17-0451-I-1, and PH-1221-19-0026-W-1, which both concern
his termination from that agency during his probationary trial period; and, Seda v.
Department of Veterans Affairs , PH-3330-19-0114-I-1, another VEOA nonselection
appeal. We have addressed those petitions for review in separate decisions.
4 This submission also included a copy of his OSC disclosure, OFCCP complaint, and
numerous documents that concerned an appeal before the Equal Employment
Opportunity Commission, his professional and educational background, and several
agency jobs for which he had applied. IAF, Tab 2 at 31-44, 57-124.
7
reporting a security violation in which an agency employee brought his girlfriend
to a secure workspace. Id. at 2. The appellant reiterated his assertion that a
Board settlement attorney had told him that he was on a do not hire list. Id. The
appellant asserted that this showed the agency has been retaliating against him for
19 years for “filing an EEOC charge complaint investigation and lawsuit.” Id. In
addition to reprisal, he argued that the agency obstructed his right to compete for
employment in violation of 5 U.S.C. § 2302(b)(4). Id.
The appellant established OSC exhaustion concerning his allegation
that the agency blacklisted him
The appellant contended in his September 15, 2020 OSC complaint that the
agency placed him on a blacklist “for filing a EEOC, OSC, DoL, MSPB charge
complaint investigation and lawsuit.” IAF, Tab 2 at 45, 52-53. He also claimed
in his OSC complaint that he had disclosed a hostile work environment, and
asserts that his supervisor, who is not identified, said that she should have fired
him for reporting it to the human resources department . IAF, Tab 2 at 17-18.
The appellant did not file a closure letter from OSC with the Board and
when he filed his appeal, less than 2 months after filing with OSC, the matter was
not ripe for adjudication by the Board. However, because well over 120 days has
passed since the appellant filed his OSC complaint on September 15, 2020, id.
at 54, the appellant has exhausted his administrative remedies concerning the
disclosures and personnel actions he identified before OSC and the matter is now
ripe. 5 U.S.C. § 1214(a)(3); Garrison v. Department of Defense , 101 M.S.P.R.
229, ¶¶ 6-7 (2006); 5 C.F.R. § 1209.5(a). The Board’s practice is to adjudicate an
appeal that was premature when it was filed but becomes ripe while pending with
the Board. Jundt v. Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 7
(2010). Although we would often remand such an appeal to develop the record,
we need not do so here because the question of whether an appellant has
established jurisdiction over an IRA appeal is made on the appellant’s written
submissions. See Spencer v. Department of the Navy , 327 F.3d 1354, 1356 (Fed.
8
Cir. 2003)5; Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007).
Thus, we can resolve the jurisdictional issue here and, as discussed previously,
will consider both the appellant’s petition for review and his response to the
jurisdictional order.
The appellant failed to make a nonfrivolous allegation that he made
a protected disclosure that was a contributing factor in a
personnel action
The Board’s regulations define a nonfrivolous allegation as an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). As the
U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems
Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020), determined:
“[T]he question of whether the appellant has non-frivolously alleged protected
disclosures [or activities] that contributed to a personnel action must be
determined based on whether the employee alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard needed to establish the Board’s jurisdiction over
an IRA appeal. See, e.g., Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 14
(2014) (concluding that to establish IRA jurisdiction, an appellant must make a
specific and detailed allegation of wrongdoing, rather than a vague one). As
noted above, the administrative judge in this appeal found that the appellant’s
allegations below failed to constitute a nonfrivolous allegation of jurisdiction
over the appellant’s IRA appeal. ID at 2-3.
The appellant claimed that he made a disclosure to the agency’s human
resources department in September 2001, but he fails to identify the individuals
5 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), 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.
9
involved, and only describes the content of the disclosure in vague, broad
statements, i.e., that he disclosed a toxic work environment and another employee
inappropriately brought a girlfriend to a secure workspace, which embarrassed his
unnamed supervisor. IAF, Tab 2 at 18, Tab 10 at 2. However, his vague
allegation that he disclosed an allegedly hostile work environment, without more,
fails to constitute a nonfrivolous allegation that he made a protected disclosure
under section 2302(b)(8). IAF, Tab 10 at 2-3, Salerno, 123M.S.P.R. 230, ¶ 6;
Linder, 122 M.S.P.R. 14, ¶ 14. The same is true for the appellant’s unexplained
contention that an agency employee brought his girlfriend to a secure workspace,
as the appellant fails to identify the employee, the workspace, or even when this
alleged security violation occurred. IAF, Tab 10 at 2; Salerno, 123 M.S.P.R. 230,
¶ 6; Linder, 122 M.S.P.R. 14, ¶ 14.
Under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” Although
the Whistleblower Protection Enhancement Act permits consideration of certain
types of section 2302(b)(9) activity in a whistleblowing appeal, of the two
provisions, an employee or applicant for employment may seek corrective action
from the Board only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
5 U.S.C. § 1221(a); Edwards v. Department of Labor , 2022 MSPB 9, ¶ 24, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed Cir. July 7, 2023).
The appellant asserted that the agency did not select him for the identified
positions because he filed an EEO complaint, raising a potential claim under
5 U.S.C. § 2302(b)(9)(A). IAF, Tab 2 at 2, Tab 10 at 2; Salerno, 123 M.S.P.R.
230, ¶ 5. He does not specifically identify the complaint at issue, but he alleged
that he is being retaliated against, among other things, for “asserting his rights to
be free from employment discrimination including harassment.” IAF, Tab 2 at 4;
IAF, Tab 10 at 2.
10
As explained above, the substance of the appellant’s EEO complaint did
not concern remedying an alleged violation of section 2302(b)(8). Rather, he was
seeking to remedy purported reprisal for matters covered by Title VII. Therefore,
his EEO complaint is not within the purview of section 2302(b)(9)(A)(i), and the
Board lacks jurisdiction to consider such allegations in the context of this IRA
appeal. Edwards, 2022 MSPB 9, ¶ 25; see 5 U.S.C. § 1221(a).
To prove that a disclosure was a contributing factor in a personnel action,
the appellant only need demonstrate that the fact of, or the content of, the
protected disclosure was one of the factors that tended to affect the personnel
action in any way. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 18
(2015). The knowledge/timing test allows an employee to demonstrate that the
disclosure was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official taking the personnel action knew of
the disclosure and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
factor in the personnel action. Id.
As noted above, there is a 19-year gap between the appellant’s alleged
disclosure and the agency’s alleged blacklisting that resulted in the appealed
nonselections. The Board has held that a personnel action taken just 2 to 3 years
after a disclosure is too remote to satisfy the knowledge/timing test. See, e.g.,
Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (holding that the
timing of the appellant’s demotion was too remote to satisfy the
knowledge/timing test where the appellant was demoted more than 2 years after
her protected disclosures).
However, the amount of time is not dispositive, and the knowledge/timing
test is not the only way for an appellant to satisfy the contributing factor criteria.
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012) (finding
contributing factor despite a 4-year gap between the alleged protected disclosure
and personnel action, based on the apparent weakness of the agency’s reasons for
11
taking the personnel action at issue ). Rather, the Board has held that if an
appellant fails to satisfy the knowledge/timing test, other evidence should be
considered, 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 these
individuals had a desire or motive to retaliate against the appellant. Id., ¶ 15.
In Dorney, the Board considered evidence casting doubt on the agency’s
stated reason for taking the action at issue, and found that even though at least
4 years had passed between the appellant’s alleged protected disclosures and her
nonselection, she had raised a material issue about the strength or weakness of the
agency’s reasons for not selecting her, and remanded the appeal for a hearing on
the merits. Id., ¶ 16-17. However, there is no such evidence in the record by
which the appellant might be able make such a connection between his alleged
disclosures and the agency’s actions. Other than his own conclusory assertions,
the appellant identifies no specific evidence or argument that, if true, could show
that the selecting officials for the positions at issue had any knowledge of his
alleged protected disclosure. IAF, Tab 1 at 6-7, 16-17. For example, the
appellant has not identified the individuals about whom he made disclosures in
2001, and whether they had any motivation to retaliate against him nearly two
decades later. IAF, Tab 10 at 2. Thus, even if the appellant established that he
made a protected disclosure back in 2001, he has failed to make a nonfrivolous
allegation that it was a contributing factor in the nonselections he appealed.
Accordingly, because we agree with the administrative judge that the
appellant failed to make nonfrivolous allegations sufficient to establish
jurisdiction over his IRA appeal, we affirm the initial decision.
12
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
14
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
15
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Seda_Anthony_W_PH-3443-21-0051-I-1_Final_Order.pdf | 2024-03-15 | ANTHONY WAYNE SEDA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3443-21-0051-I-1, March 15, 2024 | PH-3443-21-0051-I-1 | NP |
2,065 | https://www.mspb.gov/decisions/nonprecedential/Seda_Anthony_W_PH-3330-19-0114-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY WAYNE SEDA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3330-19-0114-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
nthony Wayne Seda , Aberdeen, Maryland, pro se.
Shelly S. Glenn , 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 nonselection appeal for lack of Board jurisdiction. For the reasons
set forth below, the appellant’s petition for review is DISMISSED as untimely
filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed an appeal of his nonselection for a GS-07 Legal
Administrative Specialist position, vacancy announcement number
CASF-10335732-19-WM. Initial Appeal File (IAF), Tab 1. In a May 28, 2019
initial decision, the administrative judge dismissed the appeal for lack of
jurisdiction. IAF, Tab 7, Initial Decision. The appellant filed a petition for
review, which he submitted via Federal Express on July 16, 2019. Petition for
Review (PFR) File, Tab 1 at 1, 140. Because he filed his petition for review more
than 35 days after the issuance of the initial decision, the Clerk of the Board gave
the appellant notice of the Board’s requirement for him to file a motion to either
accept the filing as timely or waive the time limit for good cause. PFR File,
Tab 2. The appellant has filed a Motion to Waive Time Limit for Good Cause, in
which he asserts that the reason for the delay in filing his petition for review is
that the Office of Special Counsel (OSC) lost a package he mailed to it on
December 21, 2018, and which contained a complaint. PFR File, Tab 3 at 1. The
agency has responded to the appellant’s petition for review and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proof with regard to timeliness, which he
must prove by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the party shows that he received the initial decision more than
5 days after it was issued, within 30 days of his receipt. Williams v. Office of
Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. § 1201.114(e).
The acknowledgment letter for the appellant’s petition for review informed him
that his petition was untimely filed because the May 28, 2019 initial decision
dismissing his appeal for lack of jurisdiction became final on July 2, 2019. PFR
File, Tab 2 at 1. The appellant concedes that his petition for review is untimely.2
PFR File, Tab 3 at 1. Thus, we find that his petition for review, filed on July 17,
2019, was fifteen days late. PFR File, Tab 1.
The Board will waive the filing time limit only upon a showing of good
cause for the delay. 5 C.F.R. §§ 1201.22(c), 1201.114(g). To establish good
cause, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Jones v. Social Security
Administration, 111 M.S.P.R. 498, ¶ 6 (2009) (citing 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 the appellant’s excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune that prevented him from
timely filing his petition. Id.
In the appellant’s motion to waive the filing deadline for good cause, he
asserts that the reason for the delay in filing his petition for review is that OSC
lost his package. PFR File, Tab 3. He asserts that he filed his OSC complaint “in
a timely manner on December 21, 2018” but that OSC lost it until “May/early
June 2019.” Id. at 2-3. He explains that he did not ask the Board for an
extension of time to file his petition for review before the deadline because he
“wasn’t expecting a delay, mishandling of package or extension was available
[sic].” Id. at 7.
There is no evidence that the appellant contacted the Board or sought an
extension of time in which to file his petition while waiting for action by OSC.
Lambright v. Office of Personnel Management , 114 M.S.P.R. 507, ¶¶ 7-8 (2010)
(finding that an appellant’s failure to contact the Board or request an extension of
time in which to file her petition did not show due diligence); Criddell v. U.S.
Postal Service, 60 M.S.P.R. 30, 33 (1993) (finding that an appellant’s attempt to
gather information in support of her case does not provide good cause for a
waiver of the filing deadline and that an appellant’s failure to request an3
extension of the filing deadline does not show due diligence and ordinary
prudence under the circumstances of the case).
To the extent that the appellant is asserting that he failed to request an
extension of time due to his unfamiliarity with Board procedures, PFR File, Tab 3
at 7, he has not shown good cause to excuse his delay in filing, Abney v. Office of
Personnel Management , 89 M.S.P.R. 305, ¶ 5 (2001), aff’d, 41 F.App’x 421 (Fed.
Cir. 2002); see Tyler v. U.S. Postal Service , 87 M.S.P.R. 460, ¶ 4 (2001)
(explaining that an appellant must show good cause for not seeking an extension
to file his petition for review in advance of the filing date); Sumrall v.
Department of the Air Force , 85 M.S.P.R. 597, ¶ 13 (2000) (concluding that an
appellant’s lack of sophistication in Board matters and unfamiliarity with Board
procedures are insufficient to show good cause for the delay in filing a petition
for review).
Although the 15-day delay in this case is not especially lengthy, it is not
minimal. See Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R. 697,
¶ 11 (2009) (finding that an 8-day delay is not minimal). In any event, the Board
has consistently denied a waiver of the filing deadline if a good reason for the
delay is not shown, for even shorter delays in cases that similarly involved pro se
appellants. E.g., Jacks v. Department of the Air Force , 114 M.S.P.R. 355,
¶¶ 10-11 (2010) (declining to excuse a 14-day delay when the pro se appellant
failed to show good cause for the delay); Lockhart v. Office of Personnel
Management, 94 M.S.P.R. 396, ¶¶ 7-8 (2003) (declining to excuse a pro se
appellant’s 5-day delay in filing a pro se appellant’s petition for review when he
failed to show good cause for the delay).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s nonselection appeal.4
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 9 | Seda_Anthony_W_PH-3330-19-0114-I-1_Final_Order.pdf | 2024-03-15 | ANTHONY WAYNE SEDA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3330-19-0114-I-1, March 15, 2024 | PH-3330-19-0114-I-1 | NP |
2,066 | https://www.mspb.gov/decisions/nonprecedential/Morales_CarlosNY-0752-22-0062-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS MORALES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-22-0062-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
F
rancisco J. Reyes , Esquire, Guaynabo, Puerto Rico, for the appellant.
Dana C. Heck , Esquire, and Laura Kempin , Esquire, St. Petersburg,
Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, among other things, the appellant
argues that the administrative judge erred in finding that the agency considered
the relevant factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981), and raises a disability discrimination claim. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review affords no basis to disturb the administrative judge’s
findings regarding the penalty.
The appellant’s alleged errors in the agency’s analysis of the Douglas
factors afford no basis to disturb the administrative judge’s findings regarding the
penalty. Contrary to the appellant’s assertion, there is no indication that the
deciding official failed to consider a mitigating factor that she ought to have
considered. Petition for Review (PFR) File, Tab 1 at 6-9; Initial Appeal File
(IAF), Tab 19, Hearing Recording (HR) (testimony of the deciding official).
At his oral reply to the proposal notice, the appellant did not present any
mitigating circumstances other than his length of service, which the deciding
official considered.2 IAF, Tab 8 at 29; HR (testimony of the deciding official).
2 The appellant’s oral reply was very brief, as the appellant’s representative stated that
he could not defend the appellant if the agency did not address certain questions, and
the appellant did not speak pursuant to his representative’s advice. IAF, Tab 8 at 29;
HR (testimony of the deciding official). The appellant did not submit a written reply.
HR (testimony of the deciding official).2
Accordingly, the appellant’s claim that the deciding official failed to
appropriately consider the Douglas factors because she did not consider the
appellant’s personnel record and evidence of his disability and reasonable
accommodation lacks merit.3
Next, the appellant claims on review that the penalty of removal was
inconsistent with those the agency imposed for similar offenses, without citing
any evidence in support. PFR File, Tab 1 at 8. The appellant presented no
evidence during the appeal regarding the agency’s treatment of the same or
similar offenses, and thus fails to show any error by either the agency or
administrative judge on this issue. See Singh v. U.S. Postal Service , 2022 MSPB
15, ¶ 21 (finding that an appellant who offered only speculation regarding the
treatment of similarly situated employees failed to show an administrative judge
erred in her consideration of the consistency of the penalty). Ultimately, because
the administrative judge’s findings regarding the agency’s penalty determination
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility, we decline to disturb them. 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).
An affirmative defense of disability discrimination was not raised by the
appellant below and is unsupported by the record.
The appellant’s claim on review that his physician’s testimony proved that
his medical conditions caused his misconduct can be viewed as an attempt to raise
3 Had the deciding official considered files regarding the appellant’s disability and
reasonable accommodation without first notifying the appellant of her intent to do so,
her actions could have constituted a violation of the appellant’s due process rights. See
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999).
Although the appellant does not specifically indicate which of the agency records he
believes the deciding official failed to consider, we observe that, to the extent the
appellant is referencing medical files and reasonable accommodation files, it is not clear
that the deciding official would have had access to such information absent the
appellant’s approval. Such information is generally not contained in an employee’s
Official Personnel File. 3
an affirmative defense of disability discrimination. PFR File, Tab 1 at 5-7, 9; see
Burton v. U.S. Postal Service , 112 M.S.P.R. 115, ¶ 15 (2009). The appellant—
who was represented throughout the appeal—failed to raise an allegation of
disability discrimination below, and we therefore need not consider it here.
5 C.F.R. § 1201.24(b); see Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016).
In any event, even assuming, arguendo, that the appellant established that
his misconduct was caused by his disabilities, he still would not have established
that his removal constituted disability discrimination. The relevant
anti-discrimination statutes do not immunize disabled employees from being
disciplined for misconduct in the workplace, provided the agency would impose
the same discipline on an employee without a disability. Burton, 112 M.S.P.R.
115, ¶ 16. The appellant presented no evidence during the appeal regarding the
agency’s treatment of the same or similar offenses, including by nondisabled
employees, and did not otherwise show that disability discrimination was either a
motivating factor in, or but-for cause of, his removal as required for relief. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 22, 40, 42. The
appellant thus failed to substantiate any disability discrimination claim he could
have timely raised. See Burton, 112 M.S.P.R. 115, ¶¶ 16, 18.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Morales_CarlosNY-0752-22-0062-I-1_Final_Order.pdf | 2024-03-15 | CARLOS MORALES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-22-0062-I-1, March 15, 2024 | NY-0752-22-0062-I-1 | NP |
2,067 | https://www.mspb.gov/decisions/nonprecedential/Jefferson-Wilson_LenaDE-1221-18-0079-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LENA JEFFERSON-WILSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-18-0079-W-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
atthew Brinegar , Esquire, Oakland, California, for the appellant.
Scott MacMillan , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once the Office of Special Counsel (OSC) closes its investigation into
her complaint and no more than 60 days have elapsed since notification of the
closure was provided to her . See Heimberger v. Department of Commerce ,
121 M.S.P.R. 10, ¶ 6 (2014). Under the Board’s regulations implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the
date that OSC issues its close-out letter, or if the letter is received more than
5 days after its issuance, within 60 days of the date of receipt. Id.; 5 C.F.R.
§ 1209.5(a)(1). This deadline may be extended when the appellant, despite
having diligently pursued her rights, was unable to make a timely filing. 5 C.F.R.
§ 1209.5(b).
Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5, the
filing period for an IRA appeal is statutory—not regulatory. 5 U.S.C. § 1214(a)
(3)(A); Heimberger, 121 M.S.P.R. 10, ¶ 9. Unlike the Board’s regulatory time
limits for appeals filed under 5 U.S.C. § 7701, the statutory time limit for filing
an IRA appeal cannot be waived for good cause shown because there is no
statutory mechanism for doing so. Id. However, the filing deadline might be
subject to equitable tolling, under which the filing period is suspended for
3
equitable reasons, such as when the complainant has actively pursued her judicial
remedies by filing a defective pleading within the statutory period, or when she
has been induced or tricked by her adversary’s misconduct into allowing the
deadline to pass. Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96
(1990); Bauer v. Department of the Army , 88 M.S.P.R. 352, ¶ 9 (2001); Wood v.
Department of the Air Force , 54 M.S.P.R. 587, 592 (1992); 5 C.F.R. § 1209.5(b).
On review, the appellant does not challenge the administrative judge’s
determination that her IRA appeal was untimely filed. Initial Appeal File (IAF),
Tab 8, Initial Decision (ID) at 3-4. She opines that the administrative judge erred
in finding that, “because the misdirected fax was not sent to a wrong
administrative agency (as opposed to a third party), [she] waived her right to
appeal.” PFR File, Tab 1 at 7. The appellant maintains that 5 C.F.R. § 1209.5(b),
which addresses the applicability of equitable tolling in untimely IRA appeals,
was not meant to be read so narrowly. Id. at 5.
We discern no error in the administrative judge’s ultimate determination
that equitable tolling does not apply in this case. ID at 7. Equitable tolling is a
rare remedy that is to be applied in unusual circumstances and generally requires
a showing that the litigant has been pursuing her rights diligently and some
extraordinary circumstances stood in her way. Heimberger, 121 M.S.P.R. 10,
¶ 10. It does not extend to a garden variety claim of “excusable neglect.” Irwin,
498 U.S. at 96; Wood, 54 M.S.P.R. at 593. The failure of the appellant’s attorney
to timely file the IRA appeal with the Board, while unfortunate, more closely
resembles a case of garden variety neglect rather than the type of extraordinary
circumstance that warrants tolling a statutory deadline. See Irwin, 498 U.S. at 96;
Heimberger, 121 M.S.P.R. 10, ¶¶ 10–12; Pacilli v. Department of Veterans
Affairs, 113 M.S.P.R. 526, ¶¶ 10–11, aff’d, 404 F. App’x 466 (Fed. Cir. 2010).
The appellant’s attorney used the wrong number in faxing the appeal and then
failed to ensure that it was received. IAF, Tab 7 at 8-9. The action of the
appellant’s attorney to file the appeal with the Board was triggered only by the
4
notification of the private party who received the appeal, after the deadline had
already passed. Id. at 9, 16. We agree with the administrative judge that the
appellant’s failure to timely file an appeal was the result of her own lack of due
diligence in preserving her legal rights, which is not enough to merit the
application of equitable tolling. ID at 7; see Irwin, 498 U.S. at 96.
We have considered the appellant’s allegation that the filing deadline
should be equitably tolled because she filed a defective pleading when she
mistakenly faxed the appeal to a private party. PFR File, Tab 1 at 5. Although it
is well settled that active pursuit of judicial remedies by filing a defective
pleading during the statutory period may be a basis upon which to invoke
equitable tolling, in the examples set out by the Supreme Court in Irwin, the
litigant either timely filed a correct complaint in the wrong court or a deficient
complaint with the appropriate adjudicative body. See Irwin, 498 U.S. at 96 n.3.
Even in National Cement Company v. Federal Mine Safety and Health Review
Commission, 27 F.3d 526, 530-31 (11th Cir. 1994), which the appellant claims to
be an analogous case, the U.S. Court of Appeals for the Eleventh Circuit observed
that the Mine Safety and Health Review Commission was able to route the
litigant’s complaint to its intended recipient, because he mailed his appeal to the
correct entity but the incorrect office. In this case, however, the appellant filed
the IRA appeal with a private party, who was not affiliated with the Board,
rendering the Board unable to ascertain that she filed the appeal or to notify her
of the error.
Although she challenges the administrative judge’s reliance on three
Federal court decisions in that they do not directly implicate 5 C.F.R.
§ 1209.5(b), the appellant has not established that this situation falls within the
limited circumstances warranting equitable tolling under 5 C.F.R. § 1209.5(b).
PFR File, Tab 1 at 9-10; ID at 6-7. The appellant has neither filed a defective
pleading during the statutory period nor alleged that she was tricked or induced
by OSC or the agency into allowing the statutory deadline to pass.
5
We have considered the appellant’s allegation that the four Board decisions
upon which the administrative judge relies are distinguishable from the instant
appeal in that they discuss the good cause standard in 5 C.F.R. § 1201.22(c),
which is not pertinent to the issue of whether equitable tolling applies. PFR File,
Tab 1 at 8-9. Although she observes that the good cause standard is not
applicable, the appellant nonetheless argues that she met the factors for
consideration in determining whether good cause exists. Id. at 10-11. Even if the
apparent delay in filing is minimal, as the appellant alleges, the Whistleblower
Protection Act does not make any provision for late filings or grant the Board
authority to waive the time limit for good cause shown. See MacDonald v.
Department of Justice, 105 M.S.P.R. 83, ¶ 11 (2007); Coufal v. Department of
Justice, 98 M.S.P.R. 31, ¶ 31 (2004).
To the extent the appellant is arguing that the negligence of her attorney
led to the untimely filing, her argument is unavailing. The appellant is
responsible for the errors of her chosen representative . Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981); see Pacilli, 113 M.S.P.R. 526, ¶ 10
(suggesting that the statutory time limit precludes the Board from waiving the
deadline, even if a belated IRA appeal is the result of neglect or misconduct of
the appellant’s attorney).
We agree with the administrative judge that the appellant’s IRA appeal was
untimely filed and that she has not alleged any circumstances that would warrant
the application of equitable tolling to excuse her untimely filing. Because the
appeal is dismissed on timeliness grounds, we do not reach the jurisdictional
issue. Heimberger, 121 M.S.P.R. 10, ¶ 13.
6
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.
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.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.
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. | Jefferson-Wilson_LenaDE-1221-18-0079-W-1_Final_Order.pdf | 2024-03-15 | null | DE-1221-18-0079-W-1 | NP |
2,068 | https://www.mspb.gov/decisions/nonprecedential/Campos_CarlosNY-315H-22-0152-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS CAMPOS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-315H-22-0152-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
F
rancisco J. Reyes , Guaynabo, Puerto Rico, for the appellant.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s claim that the agency denied him
restoration under 5 C.F.R. § 315.401, we AFFIRM the initial decision,
and DISMISS the appeal for lack of jurisdiction.
We discern no error in the administrative judge’s finding that the Board
lacks jurisdiction over the appellant’s removal. By operation of 5 U.S.C.
§ 7511(b)(10), employees of the Veterans Health Administration who, like the
appellant, are appointed under the authority of 5 U.S.C. § 7401(1) are appointed
without regard to civil service requirements, and are therefore excluded from
chapter 75 appeal rights. Davison v. Department of Veterans Affairs ,
115 M.S.P.R. 640, ¶ 6 (2011); Pichon v. Department of Veterans Affairs ,
67 M.S.P.R. 325, 326-27 (1995). Such employees are also excluded from Board
appeal rights under 38 U.S.C. § 714. See 38 U.S.C. § 714(h)(1)(B) (excluding
individuals appointed under 38 U.S.C. § 7401(1) from coverage under § 714
procedures).
However, the initial decision does not address whether the Board has
jurisdiction to consider the appellant’s claim that the agency wrongfully denied
him restoration under 5 C.F.R. § 315.401. 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 law2
and his legal reasoning, as well as the authorities on which that reasoning rests).
Accordingly, we now clarify that the Board also lacks jurisdiction over
an agency’s decision not to reinstate an employee pursuant to 5 C.F.R. § 315.401.
See Hicks v. Department of the Navy , 33 M.S.P.R. 511, 512-13 (1987); see also
Fesler v. Department of the Interior , 52 M.S.P.R. 660, 663 (1992). To the extent
the administrative judge erred in not addressing that issue, her error does not
warrant a different result. 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).
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.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Campos_CarlosNY-315H-22-0152-I-1_Final_Order.pdf | 2024-03-15 | CARLOS CAMPOS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-315H-22-0152-I-1, March 15, 2024 | NY-315H-22-0152-I-1 | NP |
2,069 | https://www.mspb.gov/decisions/nonprecedential/Walton_Cecelia_D_PH-0731-22-0164-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECELIA DEANDREA WALTON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-0731-22-0164-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
ecelia DeAndrea Walton , Columbia, Maryland, pro se.
Byron D. Smalley , Esquire, and Mark A. Wines , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed for lack of jurisdiction her appeal of the agency’s withdrawal of
an offer of 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;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the administrative judge’s rulings during either the course of the appeal or the
initial decision were not consistent with required procedures or involved an abuse
of discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 reasserts that the agency and/or the Office of
Personnel Management (OPM) violated her Fifth Amendment rights in
questioning her during a background screening, erred in their decision that
she did not meet the qualifications of the position because of discourteous
behavior, and breached an employment contract by failing to appoint her to the
position. Petition for Review (PFR) File, Tab 1. We agree, for the reasons stated
in the initial decision, that she failed to make a nonfrivolous allegation of Board
jurisdiction. Initial Appeal File (IAF), Tab 8, Initial Decision (ID).
The administrative judge properly construed the appellant’s appeal as a
nonselection appeal over which the Board lacks jurisdiction. ID at 3-4; see
Prewitt v. Merit Systems Protection Board , 133 F.3d 885, 886 (Fed. Cir. 1998);
Testart v. Department of the Navy , 42 M.S.P.R. 21, 23 (1989). Traditional
contract law does not apply. See Bartel v. Federal Aviation Administration ,
14 M.S.P.R. 24, 35-36 (1982), aff’d as modified , 30 M.S.P.R. 451 (1986).
We also agree with the administrative judge that the nonselection decision was
made by the agency, not OPM. ID at 2; IAF, Tab 5 at 8-9, 15. Our case law is
clear that the Board does not have jurisdiction to assess whether an agency
accurately evaluated a candidate based on valid qualification standards. See
Banks v. Department of Agriculture , 59 M.S.P.R. 157, 160 (1993), aff’d, 26 F.3d2
140 (Fed. Cir. 1994) (Table). The appellant has not provided any compelling
basis for disturbing the administrative judge’s conclusion that the Board lacks
jurisdiction over the matter as a negative suitability action or unlawful
employment practice. ID at 4-7. Finally, the appellant’s allegations of prohibited
personnel practices, including violations of her constitutional rights, do not
provide an independent basis for Board jurisdiction. PFR File, Tab 1 at 4-5;
IAF, Tab 7 at 3; see Manning v. Merit Systems Protection Board , 742 F.2d 1424,
1428-29 (Fed. Cir. 1984); Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶
13 (2012). Thus, the appellant has identified no reason for disturbing the initial
decision dismissing her appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 | Walton_Cecelia_D_PH-0731-22-0164-I-1_Final_Order.pdf | 2024-03-15 | CECELIA DEANDREA WALTON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-0731-22-0164-I-1, March 15, 2024 | PH-0731-22-0164-I-1 | NP |
2,070 | https://www.mspb.gov/decisions/nonprecedential/Salavachi_NildaPH-315H-22-0134-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NILDA SALAVACHI,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-315H-22-0134-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
ilda Salavachi , Ogden, Pennsylvania, pro se.
Everett L. Bensten , Esquire, Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction . On petition for review,
the appellant requests a decision on the legality of her termination. Petition for
Review File, Tab 1. She also contends that the administrative judge was biased
against her. Id. at 3. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We have fully considered the appellant’s claim of administrative judge
bias. First, an allegation of bias by an administrative judge must be raised as
soon as practicable after a party has reasonable cause to believe that grounds for
disqualification exist. Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 281 (1991);
5 C.F.R. § 1201.42(b). A party cannot wait until after the adjudication is
complete to object for the first time. Gensburg v. Department of Veterans
Affairs, 85 M.S.P.R. 198, ¶ 7 (2000) (citing Lee, 48 M.S.P.R. at 281-82). Here,
the appellant did not raise any objection to the administrative judge’s conduct of
the proceedings until her petition for review. Second, 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). Here, the appellant has not provided any support for her claim of bias,
and, reviewing the record, we do not find any indication of bias. The
administrative judge disposed of the claim on purely legal grounds, i.e., lack of
jurisdiction.2
We also have considered the appellant’s request for a decision on the
legality of her termination. For the reasons set forth in the initial decision, we
agree with the administrative judge that the Board lacks jurisdiction in this case.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Salavachi_NildaPH-315H-22-0134-I-1_Final_Order.pdf | 2024-03-15 | NILDA SALAVACHI v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-315H-22-0134-I-1, March 15, 2024 | PH-315H-22-0134-I-1 | NP |
2,071 | https://www.mspb.gov/decisions/nonprecedential/Marshall_Brian_D_DE-1221-17-0386-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN D. MARSHALL,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-17-0386-W-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
oshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Ernest J. Walker , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify that the statute at 5 U.S.C. § 2302(f)(2) does not apply to this matter and
to supplement the administrative judge’s analysis of the agency’s clear and
convincing burden, we AFFIRM the initial decision.
BACKGROUND
The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 52, Initial Decision (ID). The
appellant became a GS-14 Supervisory Physical Scientist in 2010, and his major
duties involved managing operations in the Energy Geochemistry Laboratory
(EGL) and supervising its personnel. ID at 2; Hearing Transcript (HT) at 161
(testimony of the appellant). From 1996-2008, before the appellant occupied this
supervisory position, there was a significant data manipulation incident at the
laboratory. ID at 4. On October 16, 2014, the appellant was informed by a
subordinate employee that there was laboratory data manipulation by another
employee. ID at 3. The appellant made four disclosures based on this
information. ID at 3-4. The agency’s Scientific Integrity Review Panel (SIRP)
issued a report in September 2015. ID at 4. The SIRP report included negative
findings about the appellant’s management of the laboratory, including his failure
to implement effective measures to prevent a data manipulation reoccurrence, and
it recommended the immediate shutdown of the EGL Inorganic Chemistry2
Laboratory. ID at 4-5; IAF, Tab 13 at 158-80. The agency announced the
laboratory’s closure in January 2016. ID at 5-6; IAF, Tab 13 at 136-37. In late
2016, the agency proposed to the appellant and effected a 14-day suspension
based on the appellant’s negligence as a laboratory manager. ID at 6; IAF,
Tab 13 at 23-29, 80-88. The appellant also received a Fully Successful FY 2016
performance rating, which was lower than his previous ratings. ID at 6; IAF,
Tab 33 at 79. The appellant requested reconsideration of the performance rating,
which was denied. ID at 6; IAF, Tab 19 at 25, Tab 34 at 24-28.
After filing a complaint with the Office of Special Counsel, the appellant
filed an IRA appeal, in which he alleged that the agency proposed and effected a
14-day suspension and issued to him a FY 2016 Fully Successful performance
rating in reprisal for his whistleblowing disclosures. ID at 6; IAF, Tab 1. After a
hearing was held, the administrative judge found that the appellant proved by
preponderant evidence that he made four whistleblowing disclosures that were
protected by 5 U.S.C. § 2302(b)(8), and these disclosures were a contributing
factor in the three personnel actions. ID at 1, 6-9. The administrative judge also
found that these disclosures were made in the normal course of the appellant’s
duties. ID at 9-12. The administrative judge further found that the appellant
failed to prove that the agency took the actions against him “in reprisal for” his
disclosures pursuant to 5 U.S.C. § 2302(f)(2). ID at 12-14. Alternatively, the
administrative judge determined that, even if the appellant satisfied his burden,
the appellant was not entitled to corrective action. ID at 14-16.
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 3, 5-6. On petition for review, the appellant argues that his whistleblowing
disclosures were not made during the normal course of his duties, he proved that
his whistleblowing disclosures were a contributing factor in the personnel actions
taken against him, and the agency did not prove by clear and convincing evidence3
that it would have taken the actions absent his whistleblowing disclosures.
PFR File, Tab 3 at 16-30.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence that
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take, fail to take, or threaten to take or fail to
take, a personnel action against him.2 5 U.S.C. § 1221(e)(1); Webb v. Department
of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant makes out a prima
facie case, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
whistleblowing disclosure(s).3 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248,
¶ 6.
Prior to the WPEA’s enactment, disclosures made in the normal course of
an employee’s duties were not protected. Salazar v. Department of Veterans
Affairs, 2022 MSPB 42, ¶¶ 10-12. However, under a provision of the WPEA
codified as 5 U.S.C. § 2302(f)(2), such disclosures are protected if the appellant
shows that the agency took a personnel action “in reprisal for” the disclosures.
2 Neither party challenges the administrative judge’s finding that the appellant made
four disclosures protected by 5 U.S.C. § 2302(b)(8) and that these disclosures were a
contributing factor in the personnel actions. ID at 7-8. We affirm the initial decision in
this regard.
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.4
Id., ¶ 10. This provision imposed an “extra proof requirement” for these types of
disclosures such that an appellant to whom 5 U.S.C. § 2302(f)(2) applies must
prove by preponderant evidence that the agency took a personnel action because
of the disclosure and did so with an improper, retaliatory motive. Id., ¶ 11
(discussing S. Rep. No. 112-155 at 5-6 (2012)).
The National Defense Authorization Act for Fiscal Year 2018 (2018
NDAA), signed into law on December 12, 2017, amended 5 U.S.C. § 2302(f)(2)
to provide that disclosures “made during the normal course of duties of an
employee, the principal job function of whom is to regularly investigate and
disclose wrongdoing,” are protected if the employee demonstrates that the agency
took, failed to take, or threatened to take or fail to take a personnel action with
respect to that employee in reprisal for the disclosures. Salazar, 2022 MSPB 42,
¶¶ 13-14; Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017)
(emphasis omitted). As we held in Salazar, 2022 MSPB 42, ¶¶ 15-21, the 2018
NDAA’s amendment to 5 U.S.C. § 2302(f)(2), which clarified the prior version of
that statute enacted in the WPEA, applies retroactively to appeals pending at the
time the statute was enacted.
The initial decision was issued on November 22, 2017, a few weeks before
the 2018 NDAA took effect and well before we issued the decision in Salazar.
Therefore, the administrative judge did not have the benefit of the change in
statutory language or our subsequent analysis in Salazar.
Due to the 2018 NDAA’s clarifying amendment to 5 U.S.C. § 2302(f)(2)
and our decision in Salazar, we find that the appellant was not required to meet
the higher burden of proof that the personnel actions were taken in reprisal for his
disclosures. As Salazar, 2022 MSPB 42, ¶¶ 11, 13-14, made clear, the “extra
proof” requirement in section 2302(f)(2) only applies to an employee whose
principal job function is to regularly investigate and disclose wrongdoing. We
have carefully reviewed the appellant’s position description, IAF, Tab 13
at 232-37, but we do not find any evidence that the appellant’s principal job5
function was to regularly investigate and disclose wrongdoing. Rather, the
appellant’s position description established that his principal job function was to
serve as the manager of the Energy Resources Program Geochemical Laboratory.
Id. at 233. As the manager, the appellant was expected to, among other things,
“represent[] the laboratories national and internationally,” “work[] with scientists
and upper level management to make policy decisions and guide research
directions,” and he was “responsible for all aspects of lab functionality and
complete supervision.” Id. In this regard, the appellant (1) worked with and
provided expert advice to scientists, other Federal agencies, state and local
government organizations, private laboratories, and industry on analytical
methodology and instrumentation, (2) planned and conducted nationally and
internationally recognized research investigations aimed at developing and
evaluating relevant analytical procedures, (3) supervised personnel, (4) managed
laboratory operations, and (5) planned and managed the geochemistry laboratory
budget, scientific equipment, and laboratory facilities. Id. at 234. Because the
appellant’s principal job function was not to regularly investigate and disclose
wrongdoing, the appellant’s disclosures fall under the generally applicable
5 U.S.C. § 2302(b)(8), not section 2302(f)(2). We vacate the administrative
judge’s analysis that is contrary to our finding in this regard. Because we have
found that section 2302(f)(2) is not applicable, we need not address the
appellant’s argument that his disclosures were not made in the normal course of
his duties. PFR File, Tab 3 at 16-18; ID at 9-12.
Having found that the appellant proved that his four disclosures were a
contributing factor in the proposed and effected 14-day suspension and the
FY 2016 Fully Successful performance rating, we now turn to the administrative
judge’s analysis of the agency’s clear and convincing burden. In determining
whether an agency has shown by clear and convincing evidence4 that it would
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 the “preponderance of the evidence” standard. 5 C.F.R.6
have taken the same personnel action in the absence of whistleblowing, the Board
will consider the following factors: the strength of the agency’s evidence in
support of its action; the existence and strength of any motive to retaliate on the
part of the agency officials who were involved in the decision; and any evidence
that the agency takes similar actions against employees who are not
whistleblowers but 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. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 24.
Rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Id. The Board considers all of the
evidence presented, including evidence that detracts from the conclusion that the
agency met its burden. Id.; see Whitmore v. Department of Labor , 680 F.3d 1353,
1368 (Fed. Cir. 2012).
Regarding Carr factor 1, the administrative judge found that the agency
proved the strength of its evidence in support of its actions “by far more than
preponderant evidence.” ID at 14-15. Regarding the 14-day suspension, the AJ
found that the SIRP report,5 in conjunction with the testimony of the Director and
the deciding official, “conclusively established managerial negligence that could
have easily supported a harsher penalty.” ID at 15. The administrative judge
credited the testimony of the deciding official who persuasively explained her
rationale for the discipline and her evaluation of the relevant penalty factors, and
he noted the appellant’s concession that spot checks would have likely revealed
the data manipulation. Id. Regarding the 2016 performance review, the
administrative judge credited the Director’s testimony that the response to the
§ 1209.4(e).
5 Importantly, the administrative judge credited the SIRP report because it was
authoritative and relied upon by the agency, consistent with the material evidence and
corroborated by the agency witnesses, and prepared by an outside group of disinterested
experts. ID at 4 n.4.7
data manipulation reoccurrence was part of the appellant’s management
responsibilities. Id.
The appellant contends on review that the agency’s case has minimal
strength at best. PFR File, Tab 3 at 25-28. In pertinent part, he asserts that the
agency cannot prove negligence because the SIRP report was flawed, no SIRP
panel members testified at the hearing, and the witness testimony repeated the
incorrect statements in the SIRP report. Id. at 25. He also contends that the
agency committed a due process violation because he was charged with
negligence, the deciding official considered his misconduct as a violation of the
agency’s Scientific Integrity Policy, and the agency gave him no notice of such a
violation. Id. at 25-26.
We are not persuaded by the appellant’s arguments on review. We have
reviewed the SIRP report and the appellant’s response. IAF, Tab 13 at 158-80,
Tab 40 at 4-19. There appears to be no dispute that there were some errors in the
SIRP report. Indeed, the Director acknowledged “inaccuracies” in the SIRP
report, but he concluded that any inaccuracies “[did] not negate [the appellant’s]
lack of adequate supervision.” IAF, Tab 38 at 145. Importantly, after the
administrative judge credited the SIRP report, he noted that the appellant’s
criticisms of it did not undermine the fundamental findings and conclusions
regarding the appellant’s mismanagement of the Inorganic Chemistry Laboratory.
ID at 4 n.4. We agree with the administrative judge in this regard. Moreover, the
administrative judge found that the deciding official testified clearly, plausibly,
and without contradiction on the appropriateness of the disciplinary action
considering the appellant’s broad laboratory management responsibilities. ID
at 11. The administrative judge also credited the Director’s testimony, in which
he provided a balanced account of the appellant’s strengths and weaknesses. ID
at 14. The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such8
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 identified such reasons.
Regarding due process, the Board’s scope of review in an IRA appeal is
limited to the merits of the whistleblower allegations. Kewley v. Department of
Health and Human Services , 153 F.3d 1357, 1366 (Fed. Cir. 1998). The
appellant’s claim of a due process violation falls outside of the Board’s scope of
review in an IRA appeal. Midyett v. Department of Veterans Affairs ,
666 F. App’x 905, 907 (Fed. Cir. 2016).6 Therefore, we need not address this
argument. We have considered the appellant’s other arguments relating to Carr
factor 1, but they do not warrant a difference outcome. Accordingly, Carr
factor 1 strongly weighs in the agency’s favor.
Before we begin our analysis of Carr factors 2 and 3, there is an issue that
we wish to briefly discuss. Despite the administrative judge’s accurate recitation
of the agency’s burden and the Carr factors in the initial decision, ID at 9-10, the
administrative judge criticized the appellant for failing to meet his burden
regarding Carr factors 2 and 3. See, e.g., ID at 15 (finding that the appellant
failed to prove any motive to retaliate on the part of agency officials involved in
the decisions), 16 (concluding that the appellant failed to provide any credible
comparator evidence). This was error.7 The agency bears the burden of proving
by clear and convincing evidence that it would have taken the same actions absent
the appellant’s whistleblowing disclosures. Karnes, 2023 MSPB 12, ¶ 35. We
vacate the administrative judge’s statements to the contrary in the initial decision.
However, we need not remand the appeal because the administrative judge gave
proper notice of the agency’s burden, IAF, Tab 44 at 7, and the record is fully
6 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. E.g., Richardson v.
Department of Veterans Affairs , 2023 MSPB 1, ¶ 14 n.5.
7 Neither party raises the administrative judge’s error in this regard as an issue on
review.9
developed on this issue. 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 the
appellant’s substantive rights provides no basis for reversal of an initial decision) .
Instead, we have evaluated Carr factors 2 and 3 consistent with the relevant case
law.
Relevant to Carr factor 2, the administrative judge made explicit
demeanor-based credibility determinations in favor of the deciding official and
found that the deciding official harbored no bias because she was not involved in
the underlying investigation, the decision to close the laboratory, or the
subsequent decision to remove the appellant as a manager. ID at 12, 15. The
administrative judge acknowledged that the Director had a “potential motive to
retaliate” because he was the appellant’s supervisor, and it would have been in his
interest to discipline the appellant to avoid personal blame. ID at 15. However,
he concluded that the Director testified “clearly, persuasively, and without
contradiction” that the laboratory closure was an embarrassment, but not a
personal embarrassment. Id. The administrative judge found that neither the
deciding official nor the Director “harbored any ill will” against the appellant, as
“both candidly recognized” the appellant’s accomplishments. ID at 16. The
administrative judge also found no credible evidence of any hostility or bias by
the members of the SIRP. ID at 14 n.9. On petition for review, the appellant
contends that there was a high motive to retaliate against him for his disclosures.
PFR File, Tab 3 at 28-29.
Notwithstanding the administrative judge’s demeanor-based credibility
determinations, we find that there could be a moderate-to-high motive to retaliate
because the appellant’s disclosures of data manipulation reoccurrence had
catastrophic consequences for the laboratory, they generated negative publicity
for the agency, and they cast in a poor light the Director, other agency officials,
and the agency as an institution. See Whitmore, 680 F.3d at 1370 (noting that
“[t]hose responsible for the agency’s performance overall may well be motivated10
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); Smith v. Department of the Army ,
2022 MSPB 4, ¶ 29 (noting that the misconduct disclosed by the appellant—
mishandling servicemembers’ remains—was egregious, her disclosures generated
negative publicity for the agency, and concluding that the disclosures reflected
poorly on agency officials as representatives of the agency’s general institutional
interests). Thus, this Carr factor favors the appellant.
We have considered whether there is any evidence in the record on
Carr factor 3. The agency did not identify any comparators before the
administrative judge or in its response to the appellant’s petition for review. PFR
File, Tab 5; IAF, Tabs 13, 33, 50. The Board has held that, when the agency fails
to introduce relevant comparator evidence, the third Carr factor is effectively
removed from consideration, although it cannot weigh in the agency’s favor.
Karnes, 2023 MSPB 12, ¶ 35. Given the absence of evidence on this issue,8 we
conclude that Carr factor 3 is removed from consideration and is a neutral factor.
Id., ¶ 36.
After reweighing the Carr factors, we are left with a firm belief that the
agency would have taken the personnel actions against the appellant even in the
absence of his whistleblowing disclosures. Accordingly, we find that the agency
8 We have considered the appellant’s argument, made before the administrative judge
and on review, that the agency did not take any action against the Director for the
laboratory’s failings. IAF, Tab 51 at 25-26; PFR File, Tab 3 at 30. The administrative
judge rejected this argument because it was the appellant—and not the Director—who
was responsible for laboratory management. ID at 16. We discern no error with the
administrative judge’s assessment that the Director was not a proper comparator. The
appellant also asserted before the administrative judge and on review that the agency
did not take any action against the supervisor during the prior data manipulation
incident. IAF, Tab 51 at 26; PFR File, Tab 3 at 30. The record reflects that the chemist
involved in the earlier data manipulation incident resigned and the then-laboratory
manager retired. IAF, Tab 13 at 160, 166; HT at 45 (testimony of the Director), 138-39
(testimony of the deciding official). Thus, these individuals are also not proper
comparators.11
has met its burden. We affirm the administrative judge’s decision to deny
corrective action in this matter.
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on13
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or14
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
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. 15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Marshall_Brian_D_DE-1221-17-0386-W-1_Final_Order.pdf | 2024-03-15 | BRIAN D. MARSHALL v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-17-0386-W-1, March 15, 2024 | DE-1221-17-0386-W-1 | NP |
2,072 | https://www.mspb.gov/decisions/nonprecedential/Keith_Kenneth_L_DE-3443-18-0128-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH L. KEITH,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-3443-18-0128-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
l Arendt , Esquire, Pierre, South Dakota, for the appellant.
Rachel Wieghaus , 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 of an alleged reduction in pay or grade, among other alleged
personnel actions, 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).
The appellant is a WS-7 Maintenance Mechanic Supervisor with the
agency’s Bureau of Indian Affairs. Initial Appeal File (IAF), Tab 1 at 8. In
January 2018, he filed this appeal regarding three alleged personnel actions. Id.
at 7. First, he alleged that he suffered a reduction in pay or grade because from
May 2013 to May 2017 he performed as the Acting Facility Manager and did not
have his pay or grade adjusted upward during that period. Id. at 8. Second, he
alleged a denial of a within-grade increase (WIGI), although he provided no
details regarding the allegation. Id. at 7. Third, he alleged that, in December
2017, the agency denied his request for reimbursement of a travel voucher. Id.
at 7, 27. The appellant additionally included with his appeal a timeline of events
concerning alleged discrimination based on his color, age, national origin, sex,
and genetics, and his filing of complaints with the Equal Employment
Opportunity Commission. Id. at 19-33.
The appellant argues that because he was “promoted” to Facility Manager,
he should have received the pay associated with that position and asserts that he
was “effectively demoted” when his detail ended. Petition for Review (PFR)
File, Tab 1 at 5. However, he has acknowledged that he was only designated as
the Acting Facility Manager until such time as the position of Facility Manager
could be advertised and selected. IAF, Tab 1 at 6, 8. As the administrative judge2
correctly found, an employee is only entitled to the rights and salary of the
position to which he has been appointed by one having proper authority to do so.
IAF, Tab 9, Initial Decision (ID) at 4; see Julius v. Department of the Army ,
35 M.S.P.R. 130, 133 (1987), aff’d, 852 F.2d 1293 (Fed. Cir. 1988) (Table). The
appellant has not alleged that his official position of record ever changed during
the course of the events at issue. To the extent he alleges that his official position
of record should have been changed to Facility Manager or Acting Facility
Manager, the Board generally lacks jurisdiction to review an appellant’s claim
concerning the proper classification of his position, Ellis v. Department of the
Navy, 117 M.S.P.R. 511, ¶ 10 (2012), or his nonselection for a promotion, Harrell
v. U.S. Postal Service , 112 M.S.P.R. 492, ¶ 11 (2009). Accordingly, we find the
appellant’s argument to be without merit.2
On review, the appellant attaches two letters from his supervisor, dated
May 9, 2017, and March 19, 2018, stating that she had designated him as the
Acting Facility Manager. PFR File, Tab 1 at 17, Tab 2 at 6. The earlier of these
letters was already a part of the record below. IAF, Tab 1 at 12. These letters do
not warrant a different outcome in this appeal because, as discussed above, the
appellant’s official position of record never changed during his detail.
The appellant also argues on review, for the first time, that the agency
proposed to suspend him and thereby effectively reduced his rate of basic pay.
PFR File, Tab 1 at 4-5. He attaches to his petition for review a May 31, 2017
memorandum proposing to suspend him for 5 days. Id. at 7-16. In his pleading,
the appellant states that the proposal was “eventually incorporated herein,”
2 To the extent that the appellant argues that he suffered a constructive demotion, we
clarify that to establish the Board’s jurisdiction over such a claim, an appellant must
nonfrivolously allege that: he was reassigned without a loss of grade or pay; his former
position was upgraded; the upgrade resulted from a new or corrected classification
standard; and he met the legal and qualification requirements for promotion to the
upgraded position. Marcheggiani v. Department of Defense , 90 M.S.P.R. 212, ¶ 7
(2001). The appellant failed to allege that any of these elements are present. Thus, to
the extent that he intended to argue that he was constructively demoted, we find that he
failed to nonfrivolously allege the Board’s jurisdiction over such a claim. 3
suggesting that the agency had, in fact, imposed the 5-day suspension. Id. at 5.
At no point, however, does the agency state that it was reducing his rate of basic
pay. Id. at 7-16.
The Board generally lacks jurisdiction over appeals of suspensions of
14 days or fewer. Lefavor v. Department of the Navy , 115 M.S.P.R. 120, ¶ 5
(2010). The Board may nonetheless adjudicate certain personnel actions it
generally lacks jurisdiction over when an appellant files either an individual right
of action appeal, Eilinsfeld v. Department of the Navy , 79 M.S.P.R. 537, 541
(1998), or an appeal under the Uniformed Services Employment and
Reemployment Rights Act, Bambl v. Department of the Treasury , 113 M.S.P.R.
55, ¶ 9 (2010). The appellant has not filed such an appeal. Thus, even if the
agency ultimately suspended the appellant for 5 days without pay, the Board is
without jurisdiction to adjudicate the action as a suspension.
Employees have the right to appeal a reduction in pay. 5 U.S.C.
§§ 7512(4), 7513(d). “Pay” is defined as “the rate of basic pay fixed by law
or administrative action for the position held by an employee.” 5 U.S.C.
§ 7511(a)(4). For prevailing rate employees such as the appellant, IAF, Tab 1
at 6, the rate of basic pay means the scheduled rate of pay plus any night or
environmental differential, 5 C.F.R. § 532.401. The appellant cites no authority
for his argument that his suspension “effectively” reduced his rate of basic pay,
PFR File, Tab 1 at 4-5, and we are aware of no authority for such a proposition.
Accordingly, we find his argument to be without merit.
An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). However, the failure to provide an
appellant with proper Burgess notice in an acknowledgment order or show cause
order can be cured if the initial decision itself puts the appellant on notice of what
he must do to establish jurisdiction so as to afford him the opportunity to meet his
jurisdictional burden for the first time on review. Milam v. Department of4
Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005). Here, the administrative judge
dismissed the appellant’s WIGI denial claim for lack of jurisdiction, ID at 6,
without first providing him proper jurisdictional notice on the claim, IAF, Tab 2.
But the initial decision itself informed the appellant what he must do to establish
the Board’s jurisdiction over his claim, ID at 5-6, and therefore cured the error,
see Fleming v. Department of Labor , 97 M.S.P.R. 341, ¶ 9 (2004). On review,
the appellant still fails to meet his jurisdictional burden on his WIGI denial
claim.3 PFR File, Tabs 1-2.
In any event, the Board lacks jurisdiction over WIGI denials to prevailing
rate, or wage grade, employees. Hall v. Department of the Navy , 73 M.S.P.R.
251, 253-54 (1997). As the administrative judge found, it is undisputed that the
appellant is such an employee. ID at 6; IAF, Tab 1 at 1, 6, 8. Accordingly, the
lack of jurisdictional notice did not prejudice the appellant’s substantive rights.
See Labinski v. U.S. Postal Service , 88 M.S.P.R. 125, ¶ 6 (2001) (finding that the
lack of jurisdictional notice did not prejudice the appellant’s substantive rights
because the undisputed record evidence plainly showed that the Board did not
have jurisdiction over the appeal).
Although not raised on review, we acknowledge that the appellant indicated
in his initial appeal form that he filed a complaint with the Office of Special
Counsel (OSC) on September 8, 2017. IAF, Tab 1 at 34. However, the appellant
failed to provide the date of OSC’s decision or termination of investigation, or
attach copies of his complaint and OSC’s termination of investigation letter, as
requested in the initial appeal form. Id. He has provided no information about
what his purported OSC complaint concerned. Neither below nor on review has
3 Indeed, on review the appellant fails to even mention his claims regarding the WIGI
denial, the unreimbursed travel voucher, or unlawful discrimination and retaliation for
past equal employment opportunity activity, PFR File, Tabs 1-2, all of which claims the
administrative judge found the Board lacked jurisdiction over, ID at 5-7. We see no
reason to disturb these findings.5
he provided any other indication that he intended to file this case as an individual
right of action appeal. Accordingly, we decline to adjudicate this case as such.
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.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Keith_Kenneth_L_DE-3443-18-0128-I-1_Final_Order.pdf | 2024-03-15 | KENNETH L. KEITH v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-3443-18-0128-I-1, March 15, 2024 | DE-3443-18-0128-I-1 | NP |
2,073 | https://www.mspb.gov/decisions/nonprecedential/Knuckles_Jeniqua_I_CB-7121-18-0008-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENIQUA IRENE KNUCKLES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CB-7121-18-0008-V-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
eniqua Irene Knuckles , Summerville, South Carolina, pro se.
Christopher M. Kenny , Fort Eisenhower, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review
of an arbitrator’s decision, which found that the grievance of her removal action
was not appealed to arbitration in a timely manner and, therefore, was not
arbitrable. For the reasons set forth below, we GRANT the appellant’s request
for review and SUSTAIN the arbitrator’s 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).
BACKGROUND
The agency removed the appellant, an Office Support Assistant at its
Dwight David Eisenhower Army Medical Center in Fort Gordon, Georgia,
effective March 7, 2014. Request for Review (RFR) File, Tab 1 at 54-55.
On March 25, 2014, the appellant, through her union representative, filed a step
three grievance challenging her removal and raising discrimination claims in
accordance with negotiated grievance procedure. Knuckles v. Department of the
Army, MSPB Docket No. CB-7121-14-0025-V-1, Final Order at 2 (May 27,
2015). In a step three grievance decision dated May 20, 2014, the agency
affirmed the removal action, finding the action justified by the evidence and
reasonable under the circumstances. Id.
On September 5, 2014, the appellant filed a Board appeal in which she
requested the Board’s review of the step three grievance decision. Id. In a final
order dated May 27, 2015, the Board dismissed the appeal for lack of jurisdiction.
Id. at 1. The Board found that there was no final decision to review because the
step three grievance decision was not a final decision within the meaning of
5 U.S.C. § 7121(d). Id. at 3-7. Subsequently, on a date after September 30,
2016, the union appealed the step three grievance decision to arbitration. RFR
File, Tab 1 at 33. In a decision dated December 5, 2017, the arbitrator found that
the grievance was not arbitrable because it was not appealed to arbitration in a
timely manner. Id. at 43.
On January 9, 2018, the appellant filed the present appeal in which she
requested review of the December 5, 2017 arbitrator’s decision. RFR File, Tab 1
at 2. She raised claims of discrimination and harmful procedural error. Id. at 5.
The agency filed a response to the appellant’s request. RFR File, Tab 9. It
argued, among other things, that the arbitrator’s conclusion that the arbitration
request was untimely filed could not be found to be unreasonable, arbitrary, or an
abuse of discretion. Id. at 8. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over a request for review of a final grievance or
arbitration decision under 5 U.S.C. § 7121(d) when the following conditions are
met: (1) the subject matter of the grievance is one over which the Board has
jurisdiction; (2) the appellant either raised a claim of discrimination in connection
with the underlying action under 5 U.S.C. § 2302(b)(1) in the negotiated
grievance procedure, or 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. 5 C.F.R. § 1201.155(a)(1), (c); see Jones v.
Department of Energy , 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972
(Fed. Cir. 2014).
We find that the appellant satisfies the jurisdictional criteria. Specifically,
her grievance challenges a removal under 5 U.S.C. § 7512, a subject matter over
which the Board has jurisdiction; she raised a claim of discrimination in the
negotiated grievance procedure; and the arbitrator issued a final decision in the
matter.2 5 U.S.C. §§ 7512(1), 7513(d), 7702(a)(1); RFR File, Tab 1 at 23-55.
Consequently, we find that we have jurisdiction to review the arbitrator’s
decision. See Brookens v. Department of Labor , 120 M.S.P.R. 678, ¶ 4 (2014).
The Board’s standard of review of an arbitrator’s award is narrow; such
awards are entitled to a greater degree of deference than initial decisions issued
by the Board’s administrative judges. Sadiq v. Department of Veterans Affairs ,
119 M.S.P.R. 450, ¶ 7 (2013); Fanelli v. Department of Agriculture ,
109 M.S.P.R. 115, ¶ 6 (2008). The Board will modify or set aside an arbitration
decision only when the arbitrator has erred as a matter of law in interpreting civil
2 The agency argues in its response to the appellant’s request for review that the
appellant should be collaterally estopped from relitigating an issue previously addressed
by the Board—that the union declined to arbitrate the appellant’s grievance. RFR File,
Tab 9 at 7-8. Even if we were persuaded by this argument, the Board need not apply
the doctrine in all cases, and, given our disposition, we would not do so here.
See, e.g., Kroeger v. U.S. Postal Service , 865 F.2d 235, 239 (Fed. Cir. 1988). 3
service law, rule, or regulation, and, absent such legal error, the Board cannot
substitute its conclusions for those of the arbitrator, even if it would disagree with
the arbitrator’s decision. Sadiq, 119 M.S.P.R. 450, ¶ 7. Moreover, an arbitrator
is uniquely qualified to interpret a collective bargaining agreement (CBA), which
is the source of the arbitrator’s authority. Id. Thus, an arbitrator’s decision that
“draws its essence” from the CBA is entitled to deference and should only be
vacated when it manifests an infidelity to this obligation. Id. In making this
determination, any doubts concerning the merits of the arbitrator’s decision must
be resolved in favor of the decision. Id.
Here, the arbitrator found, pursuant to Section 12a of Article 34 of the
relevant CBA, that a request to refer a grievance to arbitration must be in writing
and received “not later than 20 workdays following receipt of the final decision.”
RFR File, Tab 1 at 36, 39. The arbitrator found that the union did not refer the
appellant’s grievance to arbitration in writing until years after receipt of the step
three grievance decision. Id. at 39. He concluded, therefore, that the grievance
was not timely referred to arbitration and was not arbitrable for that reason.
Id. at 39-42.
Based on the record before us, we find that the appellant has provided no
basis for disregarding the deference due to the arbitrator’s interpretation of the
relevant CBA provisions in this case. See Fanelli, 109 M.S.P.R. 115, ¶¶ 10-12.
Accordingly, the arbitrator’s decision in this matter is sustained.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Knuckles_Jeniqua_I_CB-7121-18-0008-V-1_Final_Order.pdf | 2024-03-15 | JENIQUA IRENE KNUCKLES v. DEPARTMENT OF THE ARMY, MSPB Docket No. CB-7121-18-0008-V-1, March 15, 2024 | CB-7121-18-0008-V-1 | NP |
2,074 | https://www.mspb.gov/decisions/nonprecedential/Hunter_Christian_J_PH-315H-22-0260-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIAN J. HUNTER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-315H-22-0260-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
hristian J. Hunter , Library, Pennsylvania, pro se.
Thomas X. McHugh , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction.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 At the time of the appellant’s appointment to his position, individuals appointed to a
permanent competitive-service position at the Department of Defense (DOD), such as
the appellant, were subject to a 2-year probationary period and only qualified as
“employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of
current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by
the administrative judge, the appellant had not completed 1 year of service at the time
petition for review, the appellant argues, among other things, the merits of his
termination and asserts that he was terminated in retaliation for filing an equal
employment opportunity complaint.3 Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant provides several documents for the Board’s consideration on
review.4 Petition for Review (PFR) File, Tab 1 at 3-16. The Board will not grant
of his termination. On December 27, 2021, President Biden signed into law the
National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No.
117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period for
DOD appointments made on or after December 31, 2022, and replaced it with a 1-year
probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change
would not affect the outcome of this appeal.
3 Because the Board does not have jurisdiction over this appeal, it cannot address the
underlying merits of the appeal. Burton v. Department of the Air Force , 118 M.S.P.R.
210, ¶ 16 (2012). Furthermore, absent an otherwise appealable action, the Board lacks
jurisdiction over the appellant’s claims of discrimination or retaliation.
Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 20 (2015).
Accordingly, the Board cannot address the appellant’s arguments on review regarding
the merits of his probationary termination or his claim of retaliation.
4 Some of these documents the appellant included with his petition for review are in the
record below and thus provide no basis to disturb the initial decision. Petition for
Review File, Tab 1 at 5-16; Initial Appeal File, Tab 1 at 1-10; see Brough v.2
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision.
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980); 5 C.F.R.
§ 1201.115(d). The appellant’s document submitted for the first time on review
is a completed EEO Formal Complaint of Discrimination form, which does not
warrant a different outcome. PFR File, Tab 1 at 3-4. We therefore decline to
consider it further.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
Department of Commerce , 119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will
grant a petition for review based on new and material evidence under certain
circumstances, but that evidence that is already a part of the record is not new). We
decline to discuss these documents further.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hunter_Christian_J_PH-315H-22-0260-I-1_Final_Order.pdf | 2024-03-15 | CHRISTIAN J. HUNTER v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-315H-22-0260-I-1, March 15, 2024 | PH-315H-22-0260-I-1 | NP |
2,075 | https://www.mspb.gov/decisions/nonprecedential/Bean_William_N_DE-0752-22-0173-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM N. BEAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-22-0173-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
W
illiam N. Bean , Sierra Vista, Arizona, pro se.
Richard Wolfe , Esquire, Fort Huachuca, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. On petition for review, the
appellant explains why he did not respond to any of the administrative judge’s
orders below. Petition for Review (PFR) File, Tab 1. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
The appellant’s assertions on review do not persuade us that the
administrative judge abused his discretion in dismissing this appeal. It is
undisputed that the appellant failed to follow three Board orders, despite at least
two warnings that his failures could result in the imposition of sanctions, such as
the dismissal of his appeal for failure to prosecute. Initial Appeal File (IAF),
Tabs 4, 6, 8. Thus, the record shows that the appellant did not exercise due
diligence in prosecuting his appeal. Therefore, we find that the administrative
judge properly exercised his discretion to impose the sanction of dismissal with
prejudice. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶¶ 7-9 (2011);
5 C.F.R. § 1201.43(b). The appellant’s arguments on review that he thought
somebody would call him to participate in the status conference and that he only
received two of the Board’s filings do not convince us to disturb the initial
decision.2
2 Regarding the appellant’s argument that he believed the Board would contact him to
participate in the status conference, PFR File, Tab 1 at 3, the administrative judge’s
scheduling order explicitly instructed the parties that, to join the conference, they must
call the provided number and enter the provided participant code, IAF, Tab 4 at 2.
Although the appellant appears to suggest that he did not receive the scheduling order,
arguing that he only received one of the show cause orders and the initial decision, the2
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.
record demonstrates that the address to which all of the orders were sent prior to his
registration as an e-filer was the address the appellant himself provided in his initial
appeal. IAF, Tabs 1, 4, 6. The Board is entitled to rely on the address provided by an
appellant in effecting service. See De Vaughn v. U.S. Postal Service , 96 M.S.P.R. 427,
¶¶ 8-9 (2004). To the extent the appellant was no longer receiving mail at the address
he provided to the Board upon filing his initial appeal, it is well settled that an appellant
is responsible for notifying the Board of any change of address and is also responsible
for ensuring the timely forwarding of his own mail. Hairston v. Smithsonian
Institution, 95 M.S.P.R. 397, ¶ 6 (2004). Additionally, the administrative judge
explicitly informed the appellant that he is responsible for notifying the Board of any
change of address. IAF, Tab 2 at 3. Finally, one of the administrative judge’s show
cause ordered was issued after the appellant registered as an e-filer, and the appellant
has not explained either below or on review why he was unable to respond to that order.
PFR File, Tab 1.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bean_William_N_DE-0752-22-0173-I-1_Final_Order.pdf | 2024-03-15 | WILLIAM N. BEAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-22-0173-I-1, March 15, 2024 | DE-0752-22-0173-I-1 | NP |
2,076 | https://www.mspb.gov/decisions/nonprecedential/Roseboro_Deborah_L_PH-0752-22-0228-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH L. ROSEBORO,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
PH-0752-22-0228-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
eborah L. Roseboro , Philadelphia, Pennsylvania, pro se.
Lucia R. Miras , Esquire, and Sarah Bishop , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her chapter 75 removal appeal without prejudice. For the reasons set
forth below, we DENY the petition for review; however, we FORWARD the
matter to the Northeastern Regional Office.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
The appellant argues the merits of the agency’s removal action. Petition
for Review File, Tab 1. The only matter presently before the Board, however, is
whether the dismissal without prejudice was proper. The remedy for an
improperly granted dismissal without prejudice is remand to the regional office
for further adjudication of the appeal. See, e.g., Dey v. Nuclear Regulatory
Commission, 106 M.S.P.R. 167, ¶¶ 9-11 (2007). Here, the initial decision
indicated that the appeal would automatically be refiled on February 17, 2023,
and that the appellant could elect to refile sooner should a pending criminal
matter related to the agency’s charges be resolved. Initial Appeal File, Tab 11,
Initial Decision (ID) at 3. Regardless of whether the administrative judge abused
her discretion, February 17, 2023 has now passed. Thus, because a condition for
refiling has been met due to the passage of time,2 we decline to reach the issue of
whether the administrative judge abused her discretion in dismissing the appeal
without prejudice. See Burke v. Department of Veterans Affairs , 94 M.S.P.R. 1,
¶ 5 (2003). We therefore deny the petition for review; however, we forward the
appeal to the Northeastern Regional Office to be considered as a timely refiled
appeal. See Henry v. Department of Veterans Affairs , 110 M.S.P.R. 213, ¶ 6
(2008). The initial decision is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
2 There is no evidence that the circumstances that precipitated the dismissal without
prejudice, i.e., the status of the appellant’s criminal proceedings or her apparent lack of
internet access, have changed. ID at 2. Although it is generally the Board’s policy to
stay proceedings when, as here, criminal proceedings involving the same matter are
pending, there is a degree of malleability with this policy. See, e.g., Rittgers v.
Department of the Army , 117 M.S.P.R. 182, ¶¶ 8-12 (2011). Accordingly, the
administrative judge should develop the record to determine whether a subsequent
dismissal without prejudice is appropriate given the Board’s interest in processing
appeals and the appellant’s apparent objection to the dismissal.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 | Roseboro_Deborah_L_PH-0752-22-0228-I-1_Final_Order.pdf | 2024-03-15 | DEBORAH L. ROSEBORO v. DEPARTMENT OF JUSTICE, MSPB Docket No. PH-0752-22-0228-I-1, March 15, 2024 | PH-0752-22-0228-I-1 | NP |
2,077 | https://www.mspb.gov/decisions/nonprecedential/Coppedge_Katherine_E_DE-0752-21-0030-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHERINE E. COPPEDGE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DE-0752-21-0030-I-2
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
atherine E. Coppedge , Gilbert, Arizona, pro se.
Moira McCarthy , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her trial-period 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).
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 alleges for the first time that she was hired
pursuant to Veterans Recruitment Appointment (VRA) authority and that the
Board’s regulatory jurisdiction over competitive service terminations applies,
pursuant to 5 C.F.R. §§ 307.105, 315.806. Petition for Review (PFR) File, Tab 2
at 5. The Board can consider new or clarified allegations made in the appellant’s
petition for review because jurisdiction may be raised at any time during a
proceeding. See Morgan v. Department of the Navy , 28 M.S.P.R. 477, 478
(1985). When, as the appellant alleges here, an employee is serving under a VRA
appointment and is terminated within 1 year after the date of such appointment,
the employee has the same right to appeal her termination that a competitive
service employee has during her first year of employment. 5 C.F.R. § 307.105;
Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 18 (2011).
Under 5 C.F.R. § 315.806(b), such an employee may appeal a termination taken
for reasons arising after appointment if she alleges that the termination was based
on partisan political reasons or marital status. Maibaum, 116 M.S.P.R. 234, ¶ 18.
Here, the appellant has not submitted any evidence in support of her contention
that she was appointed pursuant to VRA authority. To the contrary, the
appellant’s Standard Form 50 states that she was appointed pursuant to 5 C.F.R.2
§ 213.3116(b)(8) pursuant to Schedule A authority, based on her entitlement to
Indian preference, and not pursuant to VRA appointment authority. Coppedge v.
Department of Health and Human Services , MSPB Docket No. DE-0752-21-
0030-I-2, Initial Appeal File (I-2 IAF), Tab 5 at 44. In any event, the appellant
has not alleged that her termination, which undisputedly arose from
post-appointment leave-related issues, was based on pre-appointment reasons,
partisan political reasons, or her marital status. Coppedge v. Department of
Health and Human Services , DE-0752-21-0030-I-1, IAF, Tab 5 at 20-21. Thus,
the appellant lacks a regulatory right to appeal her termination to the Board.
Lastly, on review the appellant states the Board should consider her equal
employment opportunity claims of disability discrimination, failure to
accommodate, and retaliation and challenges the merits of her removal. PFR File,
Tab 2 at 5-6. Because the Board lacks jurisdiction over this appeal, it cannot
consider the appellant’s arguments regarding the merits of her removal and the
alleged discriminatory motives of the agency. See Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices are
not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Coppedge_Katherine_E_DE-0752-21-0030-I-2_Final_Order.pdf | 2024-03-15 | KATHERINE E. COPPEDGE v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-0752-21-0030-I-2, March 15, 2024 | DE-0752-21-0030-I-2 | NP |
2,078 | https://www.mspb.gov/decisions/nonprecedential/Sealey_Keron_A_SF-315H-22-0535-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERON A. SEALEY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-315H-22-0535-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
eron A. Sealey , Miami, Florida, pro se.
Douglas Frison and Holly Botes , APO, AP, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction.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 At the time of the appellant’s appointment to his position, individuals appointed to a
competitive-service position at the Department of Defense (DOD), such as the
appellant, were subject to a 2-year probationary period and only qualified as
“employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of
current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by
the administrative judge, the appellant had not completed 1 year of service at the time
petition for review, the appellant argues the merits of his termination and asserts
that he was terminated in retaliation for filing an equal employment opportunity
complaint.3 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant provides several documents for the Board’s consideration on
review. Petition for Review (PFR) File, Tab 1 at 5-10. 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.
of his termination. On December 27, 2021, President Biden signed into law the
National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L.
No. 117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period
for DOD appointments made on or after December 31, 2022, and replaced it with a
1-year probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That
change would not affect the outcome of this appeal.
3 Because the Board does not have jurisdiction over this appeal, it cannot address the
underlying merits of the appeal. Burton v. Department of the Air Force , 118 M.S.P.R.
210, ¶ 16 (2012). Furthermore, absent an otherwise appealable action, the Board lacks
jurisdiction over the appellant’s claims of discrimination or retaliation.
Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 20 (2015), aff’d, 833
F.3d 1342 (Fed. Cir. 2016). Accordingly, the Board cannot address the appellant’s
arguments on review regarding the merits of his probationary termination or his claim
of retaliation.2
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980); 5 C.F.R.
§ 1201.115(d). The appellant’s documents submitted for the first time on review
are his military travel orders, travel itinerary, and an email to the agency
regarding his leave, none of which warrants a different outcome. PFR File, Tab 1
at 5-10. We therefore decline to consider them further.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) 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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sealey_Keron_A_SF-315H-22-0535-I-1_Final_Order.pdf | 2024-03-15 | KERON A. SEALEY v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-315H-22-0535-I-1, March 15, 2024 | SF-315H-22-0535-I-1 | NP |
2,079 | https://www.mspb.gov/decisions/nonprecedential/Caputo_Cynthia_J_CH-0752-17-0019-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA J. CAPUTO,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-17-0019-C-1
DATE: March 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
K
evin L. Owen , Esquire, and Julie R. Gold , Esquire, Silver Spring,
Maryland, for the appellant.
Daniel S. Lacy , Esquire, North Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
This matter is before the Board on the agency’s petition for review of the
compliance initial decision, which granted in full the appellant’s petition for
enforcement of the Board’s final decision dismissing the appeal pursuant to a
settlement agreement. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the agency has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review of the compliance initial decision
and AFFIRM the compliance initial decision, referring the petition for
enforcement to the Board’s Office of General Counsel for additional processing
and issuance of a final decision. See 5 C.F.R. § 1201.183(c).
BACKGROUND
The appellant filed an appeal with the Board challenging the agency’s
decision to remove her. Caputo v. Department of the Army , MSPB Docket
No. CH-0752-17-0019-I-1, Initial Appeal File, Tab 1. The parties subsequently
executed a negotiated settlement agreement (NSA) resolving the appeal.
Caputo v. Department of the Army , MSPB Docket No. CH-0752-17-0019-I-2,
Appeal File (I-2 AF), Tab 5 at 4-15. The administrative judge accepted the NSA
into the record for enforcement purposes, found that the agreement was lawful on
its face and the parties understood its terms and freely entered into it, and
dismissed the appeal as settled. I -2 AF, Tab 6 at 2-3.
The appellant filed a petition for enforcement, asserting that the agency
breached the agreement by taking or failing to take the following actions required
under the terms of the NSA: (1) expunge all records of the appellant’s removal
from her official personnel file (OPF) and provide evidence that it recalled and2
rescinded any records detailing the removal from “records maintained in other
official files of the agency”; (2) issue a notice of management directed
reassignment (MDR); (3) provide evidence that the appellant was granted service
credit for the period that she was held in Leave Without Pay (LWOP) status from
the effective date of her removal through the date she was reinstated to her
position; (4) enroll the appellant in a Combined Arms Center (CAC) Leadership
Advanced Course; (5) provide evidence that a number of identified agency
officials were contacted and instructed to expunge the appellant’s removal and
performance rating records; (6) prevent her Federal Employee Health Benefits
(FEHB) enrollment from being canceled; (7) pay the appellant at the appropriate
rate of pay agreed to under the terms of the NSA; (8) attempt to collect a debt that
resulted from an overpayment arising from the appellant’s Federal service prior to
the effective date of the NSA; and (9) rescind and expunge the appellant’s 2015
performance review documents, and provide new appraisals for the 2014-15,
2015-16, and 2016 -17 appraisal cycles that were at “the same rating as she was
rated in 2014.” Caputo v. Department of the Army , MSPB Docket No. CH-0752-
17-0019-C-1, Compliance File (C-1 CF), Tab 1 at 4-11.
After the agency failed to respond to the acknowledgement order and two
separate orders to respond, C-1 CF, Tabs 3, 5, 8, and failed to appear for the
scheduled telephonic status conference, C-1 CF, Tab 11, the administrative judge
issued an initial decision granting the appellant’s petition for enforcement based
on the written record, C-1 CF, Tab 12, Compliance Initial Decision (CID). The
administrative judge concluded that the appellant demonstrated that the agency
was in material breach of each of the terms of the NSA identified above and that
the agency had not produced any relevant, material, and credible evidence that it
was in compliance with the contested terms of the agreement. CID at 2-10. As a
consequence, the administrative judge ordered the agency to fully comply with
each of the above terms, to submit to the Board and the appellant the name, title,
grade, and address of each agency official charged with complying with the3
Board’s order, and to inform each official in writing of the potential sanctions for
noncompliance. CID at 10-11.
Within the time limit for filing a petition for review of the compliance
initial decision, the agency filed a pleading titled “Response to Order to Show
Compliance,” in which it asserted that it had fulfilled its obligations required
under the NSA for several of the terms of the agreement and provided
documentary evidence purporting to demonstrate compliance. Caputo v.
Department of the Army , MSPB Docket No. CH-0752-17-0019-C-1, Compliance
Petition for Review (CPFR) File, Tab 1. However, the agency also challenged the
validity of the administrative judge’s order of compliance for two of the
agreement’s terms. Id. at 2-6. Because the pleading included assertions that the
agency was in compliance with the decision, the Office of the Clerk of the Board
docketed the agency’s statement of compliance as a compliance referral case
under MSPB Docket No. CH-0752-17-0019-X-1 (X -1 AF), and processed the
remainder of the agency’s challenges to the compliance initial decision as a
petition for review of the compliance initial decision. CPFR File, Tab 3 at 1-2.
The Board issued identical acknowledgment orders for both the compliance
referral case and the petition for review of the compliance initial decision. X-1
AF, Tab 3; CPFR File, Tab 3.
The appellant has responded in opposition to the petition for review,
conceding that the agency is now in compliance with the term of the NSA
requiring that it enroll the appellant in the CAC leadership course, but arguing
that it remains in noncompliance with several terms of the agreement. CPFR File,
Tab 5 at 4-10.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency was required to waive the annual leave overpayment debt and to
reinstate the appellant’s FEHB enrollment.
A settlement agreement is a contract, and the Board will adjudicate a
petition to enforce a settlement agreement in accordance with contract law.4
Walker-King v. Department of Veterans Affairs , 119 M.S.P.R. 414, ¶ 9 (2013);
Young v. U.S. Postal Service , 113 M.S.P.R. 609, ¶ 10 (2010). In construing the
terms of a settlement agreement, the Board looks to the words of the agreement
itself, which are of paramount importance, and assigns them their ordinary
meaning unless the parties intended otherwise. Smith v. Department of the
Interior, 113 M.S.P.R. 592, ¶ 8 (2010); see Greco v. Department of the Army ,
852 F.2d 558, 560 (Fed. Cir. 1988). When reviewing a settlement agreement, the
Board is responsible for ensuring that “the parties receive that for which they
bargained.” Walker-King, 119 M.S.P.R. 414, ¶ 10 (quoting Pagan v. Department
of Veterans Affairs , 170 F.3d 1368, 1372 (Fed. Cir. 1999)). Contract terms must
be read “as part of an organic whole, according reasonable meaning to all of the
contract terms[.]” Walker-King, 119 M.S.P.R. 414, ¶ 10 (quoting Lockheed
Martin IR Imaging Systems , Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997)).
Regarding the terms of the NSA that the agency challenges on petition for
review, the agency disputes the administrative judge’s conclusion that ensuring
the appellant’s continued enrollment in FEHB was one of the required terms in
the NSA and further asserts that it was the appellant’s own sustained inaction that
resulted in the cancelation of her FEHB enrollment. CPFR File, Tab 1 at 4.
Regarding the waiver of the debt the appellant incurred to the Defense Finance
and Accounting Service (DFAS), the agency argues that it does not have authority
to waive the debt. Id. at 5. The agency asserts that the debt resulted after the
agency paid the appellant in full for her unused annual leave at the time she was
originally removed from Federal employment, but then restored her full annual
leave balance after she was restored to her position pursuant to the settlement
agreement. Id. The agency argues that because the appellant has already been
paid in full for the unused annual leave and the leave balance also was also fully
restored, it does not have the authority to waive the debt and that doing so would
unjustly enrich the appellant. Id. 5
Debt collection waiver for unused annual leave overpayment
The agency challenges the administrative judge’s finding that it failed to
comply with paragraph 1 of the NSA, which states that the agency agrees to
“waive any claims against the Appellant, including any allegations of . . .
overpayment, regarding her employment in [F]ederal service up to the effective
date of this Agreement.” I-2 AF, Tab 5 at 5. In the CID, the administrative judge
concluded that the appellant provided evidence that she received two debt
collection notices for overpayments from DFAS dated prior to the date of the
NSA and that the agency failed to rebut the appellant’s evidence. CID at 8-9; C -1
AF, Tab 1 at 34-46. Consequently, the administrative judge concluded that the
agency was not in compliance with the overpayment waiver provision of
paragraph 1 of the NSA. CID at 8-9. On review, the agency argues that
irrespective of the waiver language in the NSA cited by the appellant, it does not
have authority to waive the contested debt because doing so would be
inconsistent with Federal regulations, or alternatively, that waiver of the debt
would unjustly enrich the appellant. CPFR File, Tab 1 at 5. The appellant
counters by arguing that the agency waived its right to challenge the debt
collection waiver provision by failing to object below. CPFR File, Tab 5 at 9.
The appellant argues that the only relevant consideration is that the effective date
of the debt precedes the date of the NSA, which the agency does not dispute. Id.
As support for its argument that waiver of the debt would be contrary to
Federal regulation, the agency cites 5 C.F.R. § 550.805(e)(2)(iv).2 However, this
provision is only applicable to awards of back pay made pursuant to the Back Pay
Act, 5 U.S.C. § 5596, and nothing in the cited regulation precludes the parties of
2 This provision states, in relevant part, that in computing a net back pay amount
payable under 5 U.S.C. § 5596 (“the Back Pay Act”), an agency must deduct “[a]ny
erroneous payments received from the Government as a result of the unjustified or
unwarranted personnel action,” and mandates that such payments “must be recovered
from the back pay award,” and subsequently identifies the types of payments that must
be recovered, including “a lump-sum payment for annual leave (i.e., gross payment
before any deductions).”6
a negotiated settlement agreement from reaching an agreement to waive an
overpayment, including one for unused annual leave. We find that the NSA at
issue here unambiguously provided the appellant with a lump sum payment
award, not an award of back pay, and that nothing in the agreement included an
award of back pay that would bring the agreement within the purview of the Act
or implicate the offset requirements in 5 C.F.R. § 550.805(e)(2)(iv). I -2 AF,
Tab 5 at 5 (providing that “[the agency] shall pay to the Appellant a lump sum
payment in the amount of one -hundred thousand dollars ($100,000.00), in lieu of
any claims for pecuniary and non-pecuniary compensatory damages. This amount
shall be paid in a lump sum with no deductions or withholdings”).3
Regarding the agency’s argument that the waiver of the debt would unjustly
enrich the appellant, there is similarly no merit to that argument. The parties
agree that the debt accrued as a result of the agency paying the appellant for her
unused annual leave balance as of the date her removal went into effect, on
September 17, 2016, which was prior to the June 9, 2017 settlement agreement,
and that the agency (through DFAS) did not request payment for this debt until
after the effective date of the agreement. C-1 AF, Tab 1 at 34-35, 41 -42.
Paragraph 1 unambiguously indicates that the agreement represents a “full and
final resolution” of any outstanding claims regarding the appellant’s employment
in federal service up to the effective date of the agreement—including those
related to claims of overpayment. I-2 AF, Tab 5 at 4. If the agency desired to
exclude this debt from the settlement agreement, then it should have so indicated
3 Additionally, under paragraph 3(t) of the NSA, the appellant explicitly agrees to
“waive all other claims for back pay, costs, damages, interest, and all other legal or
equitable relief,” and paragraph 3(d)(iv) states that the agency will inform the
Washington State Office of Administrative Hearings (the state agency responsible for
administering unemployment benefits) that the appellant “is not being paid back pay for
the period” during which her removal was in effect. I-2 AF, Tab 5 at 8, 12. Both
provisions provide additional support for the conclusion that the lump sum payment the
appellant received under the terms of the NSA was not an award of back pay under the
Back Pay Act, and so the agency’s argument that it is precluded by regulation from
waiving the contested debts is unpersuasive.7
in the agreement. See Johnson v. U.S. Postal Service , 108 M.S.P.R. 502, ¶ 16
(2008) (concluding that regardless of whether he was aware of his Board appeal
rights, the appellant waived them when his union entered into a global settlement
agreement on his behalf without expressly reserving them), aff’d, 315 F. App’x
274 (Fed. Cir. 2009). Accordingly, we find no error in the administrative judge’s
conclusion that the agency failed to comply with the debt waiver provision of the
NSA. Consequently, based on the provided record, we conclude that the agency
has failed to demonstrate that it has taken the necessary steps to comply with the
debt waiver provision of the settlement agreement.4
FEHB reenrollment
The agency also argues for the first time on review that, despite the
administrative judge’s findings, nothing in paragraph 3(d) obligates it to restore
the appellant’s FEHB election to what it was prior to September 7, 2016. CPFR
File, Tab 1 at 4. Specifically, the agency argues that the language in paragraph
3(d) requiring it to “rescind and expunge from the Appellant’s Official Personnel
File” the Standard Form 50 (SF-50) removing the appellant from Federal service
did not impose any obligation on the agency to restore the appellant to status quo
ante regarding her FEHB enrollment. Id. Alternatively, the agency argues that it
was the appellant’s own inaction that resulted in her benefits being canceled and
provides a series of emails exchanged between the appellant and the agency’s
Human Resources representative, which the agency claims show that the
appellant ignored the agency’s repeated attempts to get her to sign an FEHB
election form so that she could reenroll herself during the period from June 19,
2017, until her FEHB enrollment was canceled on July 28, 2017. Id. at 136-54.
4 Although the NSA acknowledges that DFAS is a separate entity over which the agency
has no control, the agreement also acknowledges that the agency will take reasonable
measures to work with the appellant and DFAS to ensure compliance with the
provisions of the agreement. I-2 AF, Tab 5 at 7; see Tichenor v. Department of the
Army, 84 M.S.P.R. 386, ¶ 8 (1999) (rejecting the agency’s argument that severance pay
withheld by DFAS was not the result of the agency’s action because the agency was
using DFAS as its paying agent).8
The agency asserts that despite making it clear to the appellant that the duty
rested with her, she never completed and returned the FEHB enrollment form, and
her benefits were terminated effective July 28, 2017. Id. at 4.
In response, the appellant argues that the agency waived any argument that
the language in paragraph 3(d) did not require it to restore her to status quo ante
with regard to her FEHB enrollment when it failed to respond to the
administrative judge’s orders to submit evidence and argument below.
CPFR File, Tab 5 at 7. The appellant also disputes the agency’s characterization
of events, arguing that she did complete the FEHB enrollment form but that the
agency nonetheless unilaterally canceled her FEHB enrollment. Id. at 8.
As previously noted, although the agreement does not specifically mention
FEHB benefits, the administrative judge credited the appellant’s interpretation of
paragraph 3(d) of the agreement stating that the agency must “rescind and
expunge” the appellant’s removal SF-50 from her OPF, as obligating the agency
to return the appellant to status quo ante by restoring the benefits election she had
prior to being removed. CID at 7. Because the appellant provided evidence
demonstrating that the agency had allowed her FEHB enrollment to lapse, and the
agency failed to rebut that evidence, the administrative judge concluded that the
agency breached this provision of the agreement. CID at 7-8.
In construing a contract, the Board must look first to the terms of the
agreement to determine the intent of the parties at the time they contracted, as
evidenced by the contract itself. Greco, 852 F.2d at 560 . The Board will give a
reasonable interpretation to those terms to carry out the parties’ intentions and
avoid absurd results. See Wisdom v. Department of Defense , 78 M.S.P.R. 652,
656 (1998) (noting that interpretations of settlement agreements that create
absurd results are disfavored). Here, in addition to the requirement in paragraph
3(d) that the agency rescind and expunge any evidence of the appellant’s removal
from her OPF, there is additional evidence in the agreement of the parties’
intentions to return the appellant to duty with the same set of pay and benefits9
that she had prior to September 27, 2016. Paragraph 3(f), which instructed the
agency to issue the MDR, also provided the appellant with training for her new
position following reinstatement, assurances of future market salary and cost of
living increases not less favorable than those she received in her previous
position, and service credit for her period of LWOP. I-2 AF, Tab 5 at 9-10.
Under paragraph 3(g), the agency agreed to reenroll the appellant in the student
loan repayment program she had previously been enrolled in, and under paragraph
3(h), agreed to restore her sick leave balance to what it was prior to the removal
action. Id. at 10.
Accordingly, under the circumstances of this case, it was reasonable for the
administrative judge to determine that the intent of the parties under the
agreement was to restore the appellant to status quo ante with regard to her
benefits, including her FEHB enrollment status. CID at 7-8. Regarding the
agency’s argument that it was the appellant’s actions, and not the agency’s, that
caused the breach, we find no merit to this argument. In disputing the agency’s
characterization of the events that took place leading up to the cancellation of her
FEHB enrollment, the appellant has provided a copy of the signed FEHB
enrollment form she submitted on June 30, 2017, on which the appellant
identified her intention to “incur a debt” in order to continue her enrollment.
CPFR File, Tab 5 at 8, 15-16. As additional support, the appellant includes an
email she sent to an agency HR Representative dated July 12, 2017,5 in which the
appellant again referenced her desire to “incur a debt” for the unpaid premiums so
that she would not lose her health insurance benefits. Id. at 8, 13-14. Finally, the
appellant includes another email exchange between herself and a DFAS
representative, in which the representative reproduced portions of an internal
summary log regarding the status of the appellant’s outstanding requests with
DFAS, which indicate that the appellant’s FEHB enrollment was canceled by
agency officials, as opposed to at the request of the appellant. Id. at 8-9, 17-21.
5 The agency’s narrative erroneously states that the email was dated July 11, 2017. 10
Consequently, we conclude that the administrative judge did not err in
construing the terms of the agreement to require that the agency restore the
appellant to the same benefits election she had prior to September 7, 2016, and
that the agency breached that term of the agreement when it allowed the
appellant’s FEHB enrollment to lapse, and failed to reenroll her to her prior
enrollment status despite her timely requests that it do so.
The remaining issues of compliance are forwarded to the Board’s Office of
General Counsel.
In addition to outstanding issues of compliance regarding debt waiver and
FEHB enrollment discussed above, outstanding issues of compliance remain
concerning the agency’s expunction of records documenting the appellant’s
removal from her personnel file, the appropriate rate of pay for the appellant’s
new position, and whether the agency issued a requisite MDR order, properly
credited the appellant with LWOP during the removal period, and expunged and
rescinded performance review documentation from the appellant’s personnel file.6
The agency submitted evidence and argument on these issues and the appellant
submitted a response, which have been entered into the record in MSPB Docket
No. CH-0752-17-0019-X-1. The Board’s Acknowledgment Order for MSPB
Docket No. CH-0752-17-0019-X-1, dated February 2, 2018, includes instruction
for how the parties must proceed in that matter, which is pending before the
Board’s Office of General Counsel.
6 There is one provision of the agreement that the agency claims it has complied with on
review and that the appellant has not contested or addressed in its response.
Paragraph 3(v) of the NSA required the agency to send letters to a list of identified
agency officials within 30 days of the date of the NSA, instructing them to expunge
certain records related to the appellant’s removal from their records. I-2 AF, Tab 5
at 13. On review, the agency has asserted that it is in compliance with that provision
and has attached copies of the letters that were sent or hand delivered to each of the
identified agency officials, and the appellant has not argued that the agency’s evidence
does not demonstrate that it is in compliance. CPFR File, Tab 1 at 4, 124-35.11
All subsequent filings should refer to MSPB Docket No. CH-0752-17-
0019-X-1 and should be faxed to (202) 653-7130 or mailed to the following
address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the Office of the General Counsel of the Merit
Systems Protection Board to show cause why the Board should not impose
sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(a).
The Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee during any period that the order has not been complied with.”
5 U.S.C. § 1204(e)(2)(A).
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of12
the remaining issues in this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Caputo_Cynthia_J_CH-0752-17-0019-C-1_Order.pdf | 2024-03-15 | CYNTHIA J. CAPUTO v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-17-0019-C-1, March 15, 2024 | CH-0752-17-0019-C-1 | NP |
2,080 | https://www.mspb.gov/decisions/nonprecedential/Armstrong_Aaron_O_SF-315H-22-0433-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON O. ARMSTRONG,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-315H-22-0433-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
aron O. Armstrong , Santa Rita, Guam, pro se.
Gilbert Serrano , and Lynn Bruckelmeyer , Joint Base Pearl Harbor-Hickam,
Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction.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 At the time of the appellant’s appointment to his position, individuals appointed to a
competitive-service position at the Department of Defense (DOD), such as the
appellant, were subject to a 2-year probationary period and only qualified as
“employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of
current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by
petition for review, the appellant argues, among other things, the merits of his
termination and reasserts that he was terminated based on his marital status and
request for paid parental leave.3 Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
the administrative judge, the appellant had not completed 2 years of service at the time
of his termination. On December 27, 2021, President Biden signed into law the
National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No.
117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period for
DOD appointments made on or after December 31, 2022, and replaced it with a 1-year
probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change
would not affect the outcome of this appeal.
3 Because the Board does not have jurisdiction over this appeal, it cannot address the
underlying merits of the appeal. Burton v. Department of the Air Force , 118 M.S.P.R.
210, ¶ 16 (2012). Accordingly, the Board cannot address the appellant’s arguments on
review regarding the merits of his probationary termination.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 | Armstrong_Aaron_O_SF-315H-22-0433-I-1_Final_Order.pdf | 2024-03-15 | AARON O. ARMSTRONG v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-315H-22-0433-I-1, March 15, 2024 | SF-315H-22-0433-I-1 | NP |
2,081 | https://www.mspb.gov/decisions/nonprecedential/Staley_Edmond__C_DA-0752-22-0268-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDMOND C. STALEY,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0752-22-0268-I-1
DATE: March 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
dmond C. Staley , Byran, Texas, pro se.
Gretchen M. McMullen , Mount Rainier, Maryland, for the agency.
Joshua Rose , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for a charge of failure to provide accurate information on
official documents. On petition for review, the appellant generally argues the
merits of the criminal charges underlying his removal. Petition for Review File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Tab 1 at 6-21. He also appears to argue that the administrative judge erred in
sustaining the agency’s charge and in finding that he failed to prove his
affirmative defense of a due process violation. Id. at 14-15, 19-21. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Staley_Edmond__C_DA-0752-22-0268-I-1_Final_Order.pdf | 2024-03-15 | EDMOND C. STALEY v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0752-22-0268-I-1, March 15, 2024 | DA-0752-22-0268-I-1 | NP |
2,082 | https://www.mspb.gov/decisions/nonprecedential/Howell_JohnDC-315H-22-0571-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN HOWELL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-315H-22-0571-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angelo Fernandez , Esquire, for the appellant.
Brittany Forrester , Esquire, for the appellant.
Elizabeth Bidwill , Honolulu, Hawaii, for the agency.
Bryant A. Boohar , Fort Liberty, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed his probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant argues that the administrative judge erred in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
finding a lack of Board jurisdiction, because his allegations of “multiple
occasions of political conversations” amount to a nonfrivolous claim that he was
terminated for partisan political reasons. Petition for Review (PFR) File,
Tab 1 at 6-8.2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We agree with the administrative judge’s finding that the appellant failed to
establish Board jurisdiction over his probationary termination. The Board has
held that generalized assertions that matters of public interest were discussed in
the workplace, such as the war in Ukraine and the possible deployment of U.S.
forces and the renaming of military bases, do not amount to a nonfrivolous
allegation that a termination was based on partisan political reasons, i.e., an
individual’s affiliation with any political party or candidate.3 PFR File,
2 In response to the appellant’s petition, the agency argues for the first time that the
initial appeal was untimely. PFR File, Tab 4 at 7-8. Because the appeal is being
decided on jurisdictional grounds, we need not address the timeliness issue on review.
3 To the extent the appellant believes his termination constituted a violation of
USERRA or VEOA or reprisal for whistleblowing, he may file an appeal raising those
claims consistent with law and the Board’s regulations. The Board makes no finding
regarding the timeliness of such an appeal or the Board’s jurisdiction over the appeal. 2
Tab 1 at 6-8; see Marynowski v. Department of the Navy , 118 M.S.P.R. 321, ¶ 7
(2012) (finding the appellant’s allegations that coworkers would attempt to
engage her in political discussions about President Obama, the “Don’t Ask Don’t
Tell” policy, or their political beliefs did not fall within the meaning of partisan
political reasons as used in the regulation); Harris v. Department of Justice ,
25 M.S.P.R. 577, 581 (1985) (dismissing a probationary termination appeal for
lack of jurisdiction when the agency action was not the result of the appellant’s
affiliation with, or support of, a political party, its candidates for public office, or
other political campaign activities).
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil 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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Howell_JohnDC-315H-22-0571-I-1 Final Order.pdf | 2024-03-14 | JOHN HOWELL v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-315H-22-0571-I-1, March 14, 2024 | DC-315H-22-0571-I-1 | NP |
2,083 | https://www.mspb.gov/decisions/nonprecedential/Hall_Charles_E_DC-1221-22-0409-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES EDWARD HALL, II,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-1221-22-0409-W-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid Branch , Esquire, Washington, D.C., for the appellant.
Sariana García-Ocasio , Esquire, New York, New York, for the agency.
Celene Wilson , Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. On
petition for review, the appellant argues that he is bringing “a claim of
discrimination in the workplace based on race . . . via a whistleblower claim 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).
IRA.” Petition for Review File, Tab 1. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Hall_Charles_E_DC-1221-22-0409-W-1_Final_Order.pdf | 2024-03-14 | null | DC-1221-22-0409-W-1 | NP |
2,084 | https://www.mspb.gov/decisions/nonprecedential/Bridgham_Jeffrey_P_PH-3443-22-0122-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY PAUL BRIDGHAM,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
PH-3443-22-0122-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason Michael Stelmack , Esquire, West Roxbury, Massachusetts, for the
appellant.
Kealin Culbreath , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. On petition for review, the
appellant repeats his claim on appeal that his retirement was involuntary due to
agency coercion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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).
2 The administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that the agency coerced him into retiring. Initial Appeal File
(IAF), Tab 13, Initial Decision at 7-9. In addition to the grounds relied upon by the
administrative judge to make this finding, we add that the appellant performed Phone
Monitor duties for nearly 32 months before retiring on February 10, 2022. IAF, Tab 7
at 16, 21. In Terban v. Department of Energy , 216 F.3d 1021, 1024-25 (2000), the U.S.
Court of Appeals for the Federal Circuit found that a petitioner’s continuing to
withstand alleged harassment for a long period before retiring indicated that he had an
alternative to retirement, which supports a finding that the appellant had such an
alternative here. Further, that the appellant retired on the exact date he became eligible
for an annuity, IAF, Tab 7 at 11, 16, rather than separate earlier, supports the
conclusion that his continuation in his position for 32 months until his annuity
eligibility date was based on an exercise of choice in furtherance of his financial
self-interest, and not—as required to establish coercion—that he had no realistic
alternative but to retire or that his working conditions were so difficult that a reasonable
person in his position would have felt compelled to retire. See Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996); Markon v. Department of State ,
71 M.S.P.R. 574, 577-78 (1996).
3 The appellant also asserted on appeal that his assignment to Phone Monitor duties
constituted whistleblower reprisal. IAF, Tab 4 at 5-6. If the appellant wishes to pursue
a whistleblower reprisal claim, he may seek corrective action from the Office of Special
Counsel. See 5 U.S.C. § 1214(a)(3) .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 | Bridgham_Jeffrey_P_PH-3443-22-0122-I-1 Final Order.pdf | 2024-03-14 | JEFFREY PAUL BRIDGHAM v. DEPARTMENT OF JUSTICE, MSPB Docket No. PH-3443-22-0122-I-1, March 14, 2024 | PH-3443-22-0122-I-1 | NP |
2,085 | https://www.mspb.gov/decisions/nonprecedential/Startz_Sherman_S_SF-315H-22-0532-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERMAN S. STARTZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-315H-22-0532-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
herman S. Startz , Bremerton, Washington, pro se.
Charles R. Eiser , Esquire, Fort Wainwright, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant renews his allegations below of whistleblower
reprisal and disability discrimination, but does not challenge the administrative
judge’s finding that he was in a probationary status when the agency terminated
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
his employment.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
2 Regarding the appellant’s claim that he was terminated during his probationary period
in reprisal for whistleblowing, the appellant has an individual right of action appeal
raising that claim pending before the Board on petition for review of an initial decision.
MSPB Docket No. SF-1221-23-0258-W-1. That matter is not addressed by this
decision.
3 There is a question regarding the timeliness of the appellant’s petition for review, but
we need not address that issue because the petition for review fails to meet the Board’s
criteria for review. See Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526,
¶ 12, aff’d sub nom. Pacilli v. Merit Systems Protection Board , 404 F. App’x 466 (Fed.
Cir. 2010). After the close of the record on petition for review, the appellant filed a
motion for leave to file additional evidence regarding his claim of discrimination.
Petition for Review File, Tab 18. The appellant does not explain the relevancy of this
evidence to the material issue in this appeal, the Board’s jurisdiction over his
probationary termination. Absent Board jurisdiction, there is no basis for the Board to
hear the appellant’s discrimination claim. 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 deny the
appellant’s motion. 5 C.F.R. § 1201.114(a)(5). 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 | Startz_Sherman_S_SF-315H-22-0532-I-1_Final_Order.pdf | 2024-03-14 | SHERMAN S. STARTZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-315H-22-0532-I-1, March 14, 2024 | SF-315H-22-0532-I-1 | NP |
2,086 | https://www.mspb.gov/decisions/nonprecedential/Edwards_PatrickDC-3443-22-0293-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK EDWARDS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-3443-22-0293-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
P
atrick Edwards , Pahrump, Nevada, pro se.
Michael G. Stultz , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his administrative debarment appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed.2 Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 On petition for review, the appellant does not directly challenge the administrative
judge’s jurisdictional findings. Rather, he states for the first time that the agency
indefinitely suspended him and that, as a result, the Board now has jurisdiction over his
appeal. Petition for Review (PFR) File, Tab 1 at 3-4. The agency responds that the
appellant filed a separate appeal of his suspension, which the Board docketed as
Edwards v. Department of the Navy , MSPB Docket No. DC-0752-22-0444-I-1. PFR
File, Tab 3 at 5-6. Because the Board separately adjudicated his indefinite suspension,
we do not address this newly raised argument in the instant appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Edwards_PatrickDC-3443-22-0293-I-1_Final_Order.pdf | 2024-03-14 | PATRICK EDWARDS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-3443-22-0293-I-1, March 14, 2024 | DC-3443-22-0293-I-1 | NP |
2,087 | https://www.mspb.gov/decisions/nonprecedential/Foggie_Vonciel_C_DC-0752-23-0015-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VONCIEL C. FOGGIE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-23-0015-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vonciel C. Foggie , Washington, D.C., pro se.
Karen Lynne Mayo , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant makes various vague and somewhat confusing
statements, most of which concern family matters and domestic relations, housing
problems, and mental health issues that are unrelated or immaterial to her appeal.
Petition for Review File, Tab 1. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 The appellant’s petition for review in Foggie v. Office of Personnel Management ,
MSPB Docket No. DC-0842-22-0587-I-1 will be addressed in a separate 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Foggie_Vonciel_C_DC-0752-23-0015-I-1 Final Order.pdf | 2024-03-14 | VONCIEL C. FOGGIE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-23-0015-I-1, March 14, 2024 | DC-0752-23-0015-I-1 | NP |
2,088 | https://www.mspb.gov/decisions/nonprecedential/Pentzke_Lissy_G_AT-0432-18-0439-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISSY G. PENTZKE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-0432-18-0439-I-1
DATE: March 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephanie Bernstein , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for
the appellant.
Lisa Pyle , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43. 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 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).
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2In Santos, 990 F.3d at 1360-63, the U.S. Court of Appeals for the Federal
Circuit held for the first time that, in addition to the elements of a chapter 43 case
set forth by the administrative judge and discussed below, an agency must also
show that the initiation of a performance improvement plan (PIP) was justified by
the appellant’s unacceptable performance before the PIP. Id. Prior to addressing
the remand, however, we address the appellant’s arguments on review concerning
the administrative judge’s findings on the elements of a chapter 43 appeal as they
existed at the time of the initial decision.
The administrative judge properly found that the agency proved its chapter 43
removal action under pre- Santos law.
¶3At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish the following by substantial evidence2: (1) the Office of Personnel
Management approved its performance appraisal system and any significant
changes thereto; (2) the agency communicated to the appellant the performance
standards and critical elements of her position at the beginning of the appraisal
period; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
demonstrate acceptable performance; and (5) the appellant’s performance
remained unacceptable in one or more of the critical elements for which she was
provided an opportunity to demonstrate acceptable performance. See 5 U.S.C.
2 The agency’s burden of proof in an action taken under chapter 43 is “substantial
evidence,” defined as the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a
lower burden than preponderant evidence.2
§§ 4302(b), 7701(c)(1)(A); Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 5 (2010).
¶4On petition for review, the appellant largely reargues her case without
identifying specific errors in the initial decision. For example, she repeatedly
contends that the administrative judge ignored evidence, including her oral reply,
affidavits, exhibits, deposition, close of record submission, rebuttal, and
pleadings. Petition for Review (PFR) File, Tab 1 at 8, 12, 17-19, 31. However,
she fails to cite to specific evidence and explain its relevance or how it would
alter the outcome of the appeal. To the extent the appellant does not identify
specific errors in the administrative judge’s analysis, the Board will not embark
upon a complete review of the record. See Baney v. Department of Justice ,
109 M.S.P.R. 242, ¶ 7 (2008); Tines v. Department of the Air Force , 56 M.S.P.R.
90, 92 (1992); 5 C.F.R. § 1201.115(a)(2) (stating that a petitioner who alleges
that the administrative judge made erroneous findings of material fact must
explain why the challenged factual determination is incorrect and identify
specific evidence in the record that demonstrates the error); see also Keefer v.
Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (stating that it is not
the Board’s obligation to pore through the record to construe and make sense of
allegations set forth at various parts of a voluminous case file and the appellant is
required to articulate her claims with reasonable clarity and precision).
Nonetheless, we address those issues and findings regarding which the appellant
has presented specific arguments on review.
¶5The appellant argues that the administrative judge erred in finding that the
agency’s performance standards were valid because she contends that they are
vague, ambiguous, and subjective. PFR File, Tab 1 at 9-10. However, the
administrative judge acknowledged that the agency’s performance standards were
somewhat subjective; but she found that they were not impermissibly vague in
light of the appellant’s position as an Investigator, which she determined could
not be assessed using a mechanical or quantitative formula but rather necessarily3
involved a degree of subjective professional judgment. Initial Appeal File (IAF),
Tab 35, Initial Decision (ID) at 7.3
¶6Moreover, the administrative judge further found that the agency’s PIP
along with the feedback that the appellant’s supervisor provided to her during the
PIP meetings cured any deficiency by fleshing out the required standards. ID
at 8. We discern no error in the administrative judge’s analysis. See, e.g.,
Salmon v. Social Security Administration , 663 F.3d 1378, 1381-82 (Fed. Cir.
2011) (finding that the agency’s performance standards of demonstrates job
knowledge and achieves business results, as fleshed out by the appellant’s
supervisor’s direct and precise feedback regarding the deficiencies in the
appellant’s work and how to remedy such deficiencies, were sufficiently
objective); Greer v. Department of the Army , 79 M.S.P.R. 477, 484 (1998)
(finding that a reasonable person could find that the appellant’s performance
standards were valid considering the scientific expertise required and the
independence and discretion he had in carrying out his work and that any lack of
specificity was cured because the agency continually gave the appellant
3 The appellant also argues that her performance standards were invalid because, similar
to the standards in Van Prichard v. Department of Defense , 117 M.S.P.R. 88 (2011),
aff’d, 484 F. App’x 489 (Fed. Cir. 2012), they failed to define the minimum level of
performance required to avoid removal. PFR File, Tab 1 at 9. However, we find
Van Prichard distinguishable. In Van Prichard, the agency’s performance standards
failed to define the levels of performance for each critical element and only defined
Marginal performance in a general definitions section as performance that is “less than
Fully Successful and supervisory guidance and assistance is more than normally
required.” Van Prichard, 117 M.S.P.R. 88, ¶ 17. The Board found that the Marginal
performance standard was an invalid backwards standard because it described what the
appellant should not do instead of what was required to obtain an acceptable level of
performance. Id., ¶ 18. In contrast, here, the agency’s performance plan defines
minimally satisfactory performance as performance “between the levels described for
Fully Successful and Unacceptable” and also defines the levels of performance for each
critical element at the Outstanding, Fully Successful, and Unacceptable levels. IAF,
Tab 10 at 44, 47, 50. Thus, we find that the agency’s standard is not an invalid
backwards standard. Nor does the agency’s minimally satisfactory performance
standard improperly require extrapolation more than one level above and below which
there is a written standard. PFR File, Tab 1 at 9; see, e.g., Donaldson v. Department of
Labor, 27 M.S.P.R. 293, 297 -98 (1985).4
comments on his work assignments during the PIP); Melnick v. Department of
Housing and Urban Development , 42 M.S.P.R. 93, 99 (1989) (stating that the fact
that a performance standard may call for a certain amount of subjective judgment
on the part of the employee’s supervisor does not automatically invalidate it),
aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table); Donaldson v. Department of Labor ,
27 M.S.P.R. 293, 301-02 (1985) (finding that the work of a GS-12 coal mine
inspector who performed a wide range of independent investigations could not be
measured by mechanical standards, but rather required subjective judgment by the
appellant’s supervisor on the appropriateness of the appellant’s actions). Thus,
we find that the appellant’s arguments on review fail to establish any error in the
administrative judge’s findings.
The administrative judge properly found that the appellant failed to prove that she
made protected disclosures in August 2015.
¶7Regarding her affirmative defense of whistleblower reprisal, the appellant
alleged that, in August 2015, she disclosed to her supervisor that (1) another
investigator told her that there was no need for two companies that she was
investigating to obtain wholesaler’s basic permits, a determination with which the
appellant disagreed, and (2) her supervisor denied her request for a cease and
desist letter to be issued to the two companies to instruct them not to sell alcohol
without a permit. IAF, Tab 27 at 32-34. On review, the appellant argues that the
administrative judge erred in finding that she failed to prove that she reasonably
believed that she was disclosing a violation of a law, rule, or regulation because
she identified a specific law, 27 U.S.C. § 203. PFR File, Tab 1 at 19-22.
However, the administrative judge did not find that the appellant failed to identify
a specific law. Rather, as set forth below, she found that the appellant failed to
prove that she reasonably believed she was disclosing a violation of a law, rule,
or regulation. ID at 14. On review, the appellant has not established any error in
the administrative judge’s finding. 5
¶8The appellant’s description of the events surrounding the investigation of
the two companies as well as her alleged disclosures to her supervisor concerning
her disagreement with the other investigator regarding permitting requirements
lack sufficient detail and clarity. IAF, Tab 27 at 45-54. For example, the
appellant states that she called her supervisor regarding an email from the other
investigator, which the appellant considered to provide “partially false and
misleading information” about permit regulations. Id. at 48. However, she fails
to describe in any detail what she disclosed to her supervisor. Thus, she has not
established by preponderant evidence that she reasonably believed she was
disclosing one of the categories of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).
¶9Even assuming the appellant reasonably believed she was disclosing that the
two companies were operating without a permit in violation of 27 U.S.C. § 203(a)
and (c), such a disclosure does not amount to a protected disclosure because it
fails to implicate Government wrongdoing. See Aviles v. Merit Systems
Protection Board , 799 F.3d 457, 463-66 (5th Cir. 2015); Arauz v. Department of
Justice, 89 M.S.P.R. 529, ¶¶ 6-7 (2001); cf. Covington v. Department of the
Interior, 2023 MSPB 5, ¶¶ 20-31 (finding that the appellant’s disclosures
regarding the Navajo Nation’s activities implicated the Government’s interests
and good name based on the unique relationship between the agency and the
Navajo Nation in which the agency had fiduciary duty and statutory trust
responsibility to oversee Indian forest lands).
¶10Additionally, to the extent the appellant alleges that she reasonably believed
that the other investigator and/or her supervisor were concealing potential
smuggling or other illegal activity because she faced “adamant opposition” during
the investigation that was “suspicious,” IAF, Tab 27 at 35, we find that she has
not alleged facts sufficient to show by preponderant evidence that she had a
reasonable belief that the Government was implicated in any wrongdoing, see,
e.g., Aviles, 799 F.3d at 466-67 (finding that the appellant’s vague and conclusory
allegations of a Government “cover up” of alleged tax fraud by Exxon alone were6
insufficient to establish even a nonfrivolous allegation of a protected disclosure).
Rather, the appellant’s alleged disclosures amount to her disagreement concerning
the application of the permitting requirements to the facts of the two
investigations. See, e.g., 5 U.S.C. § 2302(a)(2)(D) (communications concerning
policy decisions that lawfully exercise discretionary authority are not protected
unless they separately constitute a protected disclosure of one of the categories of
wrongdoing listed in section 2302(b)(8)(A)); IAF, Tab 27 at 52 (affidavit of the
appellant) (stating that ultimately it was within her supervisor’s discretion
whether to issue the permits).
On remand, the administrative judge shall reconsider whether the appellant’s
protected activity was a contributing factor in her removal.
¶11To establish her prima facie case of whistleblower reprisal, the appellant
must prove that a protected disclosure or activity was a contributing factor in a
personnel action taken against her. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 6 (2022). One way to prove contributing factor is by the
knowledge/timing test under which an appellant may show that her protected
disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that (1) the official taking the personnel
action knew of the disclosure or activity; and (2) 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. 5 U.S.C.
§ 1221(e)(1); Smith v. Department of the Army , 2022 MSPB 4, ¶ 19.
¶12The appellant alleged that in May 2017, she reported to the agency’s Office
of the Inspector General (OIG) the issues described in disclosures 1 and 2 above.4
IAF, Tab 27 at 35, 53. Although a disclosure to the OIG constitutes protected
activity under 5 U.S.C. § 2302(b)(9)(C), the administrative judge found that the
appellant failed to prove that her protected activity was a contributing factor in
4 The initial decision incorrectly states the appellant’s OIG report occurred in
May 2016, ID at 12, when the appellant alleged that it occurred in May 2017, IAF,
Tab 27 at 35, 53.7
her removal because she failed to show that her supervisor, who was the
proposing official, was aware that she had filed an OIG complaint. ID at 14. On
review, the appellant asserts that the administrative judge erred because the
agency admitted that her supervisor was aware of three grievances she filed,
including a May 19, 2017 grievance. PFR file, Tab 1 at 23-24; IAF, Tab 30 at 27.
However, it is unclear whether this refers to the appellant’s disclosure to the OIG
in May 2017. In her sworn declaration, the appellant’s supervisor stated that she
was not aware of the appellant’s OIG complaint at the time she rated the appellant
unacceptable in her midyear performance review, which led to the appellant’s
placement on the PIP and ultimately her removal. IAF, Tab 26 at 16.
¶13However, it is the agency, not its individual officials, from whom an
appellant seeks corrective action, and actual knowledge by a single official is not
dispositive. See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14
(2012). In addition to the knowledge/timing test, there are other possible ways
for an appellant to satisfy the contributing factor standard. See id. Thus, the
Board has held that, if an administrative judge determines that an appellant has
failed to satisfy the knowledge/timing test, she shall consider other evidence,
such as evidence pertaining to the strength or weakness of the agency’s reasons
for taking the personnel action, whether the whistleblowing was personally
directed at the proposing or deciding officials, and whether they had a desire or
motive to retaliate against the appellant. Id., ¶ 15. Accordingly, on remand, the
administrative judge shall apply the factors set forth in Dorney as well as
consider any other evidence that may be relevant to a contributing factor
determination. If the administrative judge finds that the appellant met her burden
of proving contributing factor, she shall address whether the agency met its
burden of proving, by clear and convincing evidence, that it would have taken the
same personnel action in the absence of the appellant’s protected activity.
5 U.S.C. § 1221(e)(2); Karnes v. Department of Justice , 2023 MSPB 12, ¶ 23 .8
The administrative judge properly found that the appellant failed to prove her
affirmative defenses of due process violations and harmful procedural error.
¶14On review, the appellant argues that the administrative judge erred in
finding that she failed to timely raise her affirmative defenses of due process
violations and harmful procedural error. PFR File, Tab 1 at 6. However, any
such error does not provide a basis for reversal because the administrative judge
also found that the appellant failed to prove her claims. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision). In particular, the administrative judge
found that the appellant was provided the materials relied upon by the agency and
she was allowed a reasonable opportunity to review such materials before
presenting her reply. ID at 12 n.11. We discern no error in the administrative
judge’s conclusion. The record reflects that the agency proposed the appellant’s
removal on January 9, 2018, and allowed her 21 days to respond to the proposal,
orally and in writing. IAF, Tab 10 at 307, 333. However, the deadline was
extended, and the appellant responded on March 8, 2018. Id. at 373. Moreover,
the appellant acknowledges in her affidavit that, once the agency resolved her
technical difficulties in accessing the materials relied upon, she had 7 days to
review the materials and prepare her oral and written reply. IAF, Tab 27 at 62;
see 5 U.S.C. § 7513(b)(2).
Remand is required under Santos .
¶15Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below that the agency proved its
performance-based action under pre- Santos law, we nonetheless must remand the
appeal. During the pendency of the petition for review in this case, the Federal
Circuit held in Santos, 990 F.3d at 1360-61, that, in addition to the five elements
of the agency’s case set forth in the initial decision, the agency must also justify
the institution of a PIP by proving by substantial evidence that the employee’s9
performance was unacceptable prior to the PIP. The Federal Circuit’s decision in
Santos applies to all pending cases, including this one, regardless of when the
events took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16.
Although the record in this appeal already contains evidence suggesting that the
appellant’s performance leading up to the PIP was indeed unacceptable, we
remand the appeal to give the parties the opportunity to present argument and
additional evidence on whether the appellant’s performance during the period
leading up to the PIP was unacceptable in one or more critical elements. See Lee,
2022 MSPB 11, ¶¶ 15-17. On remand, the administrative judge shall accept
argument and evidence on this issue and shall hold a supplemental hearing if
appropriate. Id., ¶ 17.
¶16The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
judge may incorporate her prior findings and the Board’s findings here on the
other elements of the agency’s case and the appellant’s affirmative defenses in
the remand initial decision. See id. Regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the administrative judge’s analysis of the appellant’s
affirmative defenses, she should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests).10
ORDER
¶17For the reasons discussed above, we grant the appellant’s petition for
review and 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 | Pentzke_Lissy_G_AT-0432-18-0439-I-1_Remand_Order.pdf | 2024-03-14 | LISSY G. PENTZKE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0432-18-0439-I-1, March 14, 2024 | AT-0432-18-0439-I-1 | NP |
2,089 | https://www.mspb.gov/decisions/nonprecedential/Young_DarinCH-1221-21-0264-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARIN YOUNG,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-21-0264-W-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
arin Young , Fairborn, Ohio, pro se.
Erica Skelly , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. On petition for review, the appellant
argues that the administrative judge erred in determining that the agency met its
burden of proving by clear and convincing evidence that it would have taken the
challenged personnel actions in the absence of the appellant’s protected activity.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Petition for Review File, Tab 1 at 4, 14-16. Specifically, he argues that the
administrative judge’s factual findings are “improper and inappropriate” because
they are based on, what he considered, an improper investigation by the agency.
Id. at 5, 9-10. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Young_DarinCH-1221-21-0264-W-1_Final_Order.pdf | 2024-03-14 | DARIN YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-21-0264-W-1, March 14, 2024 | CH-1221-21-0264-W-1 | NP |
2,090 | https://www.mspb.gov/decisions/nonprecedential/Porter_Billy_J_DA-1221-18-0172-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BILLY J. PORTER, JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-18-0172-W-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Billy J. Porter, Jr. , Cibolo, Texas, pro se.
Alyssa W. Silberman , Esquire, Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 as
to the administrative judge’s analysis of the factors under Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), we AFFIRM the initial
decision.
BACKGROUND
The appellant’s second-level supervisor suspended the appellant, a
Supervisory Contract Specialist, for 14 days based on his determination that the
appellant had violated the agency’s privacy policy when he accessed data that
contained his first-level supervisor’s Personally Identifiable Information (PII),
including her name, partial social security number, and time/attendance data, and
sent an unencrypted email with this data to agency officials, his attorney, and a
member of Congress. Initial Appeal File (IAF), Tab 14 at 4, 10-15. The
appellant contended that the information in the attachment disclosed fraudulent
behavior by his first-level supervisor concerning agency leave policy. IAF,
Tab 12 at 7. The appellant acknowledged that he had obtained this information
from the agency’s CLEVista K11 time and attendance system. Id. He appealed
the suspension and the administrative judge dismissed the appeal because the
Board lacks jurisdiction over a suspension of 14 days or less and the appellant did
not allege that he had filed a complaint or that he had exhausted his remedies2
before the Office of Special Counsel (OSC).2 Porter v. Department of Veterans
Affairs, MSPB Docket No. DA-3443-17-0497-I-1, Initial Decision (Nov. 13,
2017).
In this IRA appeal, the appellant alleged that he filed a complaint with
OSC. IAF, Tab 12 at 5-6. In a January 24, 2018 letter, OSC indicated that it had
closed its inquiry into his complaint, in which he had alleged that the agency
issued the 14-day suspension in reprisal for filing a union grievance and his email
forwarding documents with his first-level supervisor’s PII. Id. at 7-8. The
administrative judge determined that the appellant established jurisdiction over
his IRA appeal. IAF, Tab 29, Initial Decision (ID) at 3-4. After holding a
hearing, she found that the appellant established by preponderant evidence that he
made a protected disclosure that was a contributing factor to a personnel action,
by virtue of the knowledge/timing test. ID at 5-10. Nevertheless, she determined
that the agency demonstrated by clear and convincing evidence that it would have
issued the 14-day suspension in the absence of the appellant’s protected activity,
and she denied his request for corrective action. ID at 11-18.
In his petition for review, the appellant asserts that the agency violated the
Family and Medical Leave Act of 1993 when it denied his request for advanced
leave. Petition for Review (PFR) File, Tab 1 at 4. He argues that he was wrongly
accused of violating the agency’s leave policy, accuses his first-level supervisor
of submitting a false leave claim, and asserts that his second-level supervisor was
influenced by his first-level supervisor to permit her fraud while “get[ting] after”
the appellant. Id. The appellant also argues that he was justified in disclosing
the time and attendance information at issue to his attorney and congressional
representative because it supported his numerous pending equal employment
opportunity complaints. Id. at 4-5. He challenges the finding that he was not
authorized to access the information at issue and reiterates his claim that his
2 The appellant petitioned for review of that initial decision, and the Board denied his
petition for review. Porter v. Department of Veterans Affairs , MSPB Docket No. DA-
3443-17-0497-I-1, Final Order (May 23, 2023).3
attorney and congressional representative had a “need to know” the information
he transmitted. Id. at 5. He includes correspondence with OSC and a response
from an agency Freedom of Information Act (FOIA) officer that the appellant
claims demonstrates that despite thousands of Privacy Act violations by agency
employees between January 1, 2016, and March 30, 2017, no one was suspended.
Id. at 6, 11-12. The agency has not responded to the appellant’s petition for
review.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant established jurisdiction
over his appeal and that he proved by preponderant evidence that he made a
protected disclosure that was a contributing factor in his proposed and actual
14-day suspension. ID at 4-8. The parties do not dispute these findings on
review, and we discern no reason to disturb them. The appellant’s arguments as
to the reasons for his disclosures and his assertions that his second-level
supervisor was influenced by his first-level supervisor do not, therefore, state a
basis for granting review. PFR File, Tab 1 at 4-5; see Nasuti v. Department of
State, 120 M.S.P.R. 588, ¶ 7 (2014) (explaining that an appellant may
demonstrate that a disclosure was a contributing factor by proving that the
official taking the action had constructive knowledge of the disclosure, even if
the official lacked actual knowledge).
The agency established by clear and convincing evidence that it would have
suspended the appellant in the absence of his protected disclosure.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: The strength of
the agency’s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against4
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, each of which the agency must prove by clear and convincing evidence,
but rather weighs the factors together to determine whether the evidence is clear
and convincing as a whole. E.g., Mithen v. Department of Veterans Affairs ,
122 M.S.P.R. 489, ¶ 36 (2015), aff’d per curiam , 652 F. App’x 971 (Fed. Cir.
2016). Crucial to this analysis, the Board must consider all of the evidence,
including that “which fairly detracts from [the] conclusion” that the agency met
its burden. Whitmore v. Department of Labor , 680 F.3d 1353, 1368, 1376 (Fed.
Cir. 2012).
The agency’s evidence in support of its decision is strong.
The first Carr factor is the strength of the agency’s evidence in support of
its decision. Carr, 185 F.3d at 1323. The administrative judge carefully
described the agency’s evidence concerning the appellant’s violation of its
privacy policy, i.e., sending an unencrypted email with his first-level supervisor’s
PII, including the last four numbers of her social security number, despite his
extensive training and clear understanding of his duty to safeguard such
information. ID at 12-15. The appellant had general access to the agency’s time
and attendance system, and he conceded that he used it to access his supervisor’s
information, even though he had no supervisory role over her. ID at 12-13 (citing
testimony of the appellant). The appellant did not dispute that he disclosed the
information cited in the charges, but instead argued that it did not constitute
dissemination of PII. ID at 15. We disagree. The information transmitted
included part of his first-level supervisor’s social security number. The agency’s
Veterans Health Administration Handbook 1605.1 identifies information that is
referenced by an individual name or other “unique identifier” a confidential
information that generally may not be disclosed. IAF, Tab 14 at 18, 28-29, 135.
Further, the appellant admitted that he was familiar with the agency’s privacy
training. ID at 12-13. That training, which the administrative judge found that5
the appellant understood, specifically indicates that PII includes an individual’s
name and social security number. IAF, Tab 14 at 29-30; ID at 13. Thus, we
agree with the administrative judge that the agency established that the appellant
violated its privacy policy. 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).
In his petition for review, the appellant asserts that he sent the documents
to his attorney and congressional representative to prove agency wrongdoing.
PFR File, Tab 1 at 5. He asserts that those individuals had a “need to know” the
information and argues that there are no set rules to make a “need to know”
determination. Id. However, the agency’s privacy rules identify several sources
of support to help employees comply with the pertinent regulations, including the
agency Privacy Officer and Information Security Officer. IAF, Tab 14 at 36-39.
There is no evidence that the appellant sought any such guidance before he
transmitted the PII.
The administrative judge recounted the appellant’s testimony that he had
general access to the agency’s time and attendance system in his role as a
supervisor. ID at 12-13. However, the appellant acknowledged that approving
his supervisor’s leave requests was not part of his official duties. Id. Thus, we
agree with the administrative judge that the appellant lacked any official reason
to access the time and attendance data he sent in the unencrypted email. ID at 15.
We also agree with the administrative judge that it was unnecessary for the
appellant to access and disseminate his supervisor’s information to further his
allegations because any individual charged with investigating them would have
legitimate access to the information. ID at 16-17. Therefore, the appellant could
have raised his concerns without violating privacy rules. Thus, we disagree with
the appellant’s assertion that it was necessary for him to access and disseminate
the PII. PFR File, Tab 1 at 5. The agency’s evidence in support of its decision to6
suspend the appellant for 14 days is therefore strong, especially considering the
appellant’s lack of any legitimate justification for his actions.
The agency officials involved had little motivation to retaliate.
The administrative judge found that the appellant’s second-level supervisor
suspended the appellant because of his violation of the agency’s privacy policy,
described above. ID at 17. She found that he had no apparent retaliatory motive,
citing his inquiry to the agency’s Privacy Officer, who determined that the
appellant had violated agency policy. ID at 13-14, 17. On review, the appellant
alleges that the deciding official overlooked his first-level supervisor’s leave
fraud because they were working together to harass him, but he offers no support
for his assertion. PFR File, Tab 1 at 4.
To the extent that the administrative judge found no evidence of retaliatory
motive by the appellant’s second-level supervisor, we modify that finding.
“Those responsible for the agency’s performance overall 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, 680 F.3d at 1370. Such criticism is sufficient to establish a substantial
retaliatory motive. Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285,
¶ 33 (2013). In this case, the appellant’s disclosures concerned functions, i.e.,
time and attendance, over which his second-level supervisor had control. Thus,
he may have had some retaliatory motive.
In the grievance concerning his proposed suspension, the appellant wrote
that he sent the email containing PII because another agency official had
“questioned my integrity on following the leave policy.” IAF, Tab 10 at 51.
According to the appellant, the official accused him of improperly requesting
back-dated leave. Id. He claimed that he had followed correct leave policy and
submitted his leave in advance, but argued that his supervisor, who was
responsible for approving his leave, had submitted a leave request after she had
already taken it. Id. Nonetheless, the appellant failed to offer any evidence that7
his supervisor’s leave use was improper. At most, the data he provided
demonstrated that the supervisor requested leave in advance of attending a
funeral, but submitted formal leave requests after a dental appointment and to
check on her daughter who may have been bitten at school. IAF, Tab 14 at 252.
Absent specific evidence of wrongdoing, we assume any delay in requesting leave
was because the need for leave was unanticipated. We agree with the
administrative judge that the second-level supervisor’s credible denial of
retaliatory motive and request for guidance indicates that any retaliatory motive
was not strong. ID at 14, 17; 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). The Board must give deference to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant offers no such reasons on
review.
Thus, the appellant offers no concrete reason to discount the administrative
judge’s finding that the second-level supervisor’s motivation in disciplining the
appellant was his violation of agency policy and not his disclosure. The official
was not the subject of the appellant’s disclosure, and the record does not show
that he would suffer any negative consequences because of it. He had no reason
to suppress the appellant’s contentions, and we therefore find that the record
shows a lack of retaliatory motive.
The third Carr factor does not indicate reprisal.
Regarding Carr factor 3, the administrative judge found that the appellant
failed to present evidence regarding any similarly situated employees who were8
not whistleblowers and were treated more favorably. ID at 17. In analyzing the
third Carr factor, however, the administrative judge appeared to place the burden
of proof on the appellant. ID at 17-18. The agency bears the burden of
persuasion on the Carr factors. Miller v. Department of Justice , 842 F.3d 1252,
1267, 1262 (Fed. Cir. 2016). The agency did not present any specific evidence in
support of the third Carr factor.
Our reviewing court has indicated that “ Carr does not impose an
affirmative burden on the agency to produce evidence with respect to each of the
Carr factors to weigh them individually in the agency’s favor.” Whitmore,
680 F.3d at 1374. Further, “the absence of any evidence relating to Carr factor 3
can effectively remove that factor from the analysis.” Id. However, our
reviewing court has observed that “the Government’s failure to produce evidence
on this factor ‘may be at the agency’s peril’ considering the Government’s
advantage in accessing this type of evidence.” Miller, 842 F.3d at 1262 (quoting
Whitmore, 680 F.3d at 1374).
On review, the appellant includes email correspondence with OSC dated
January 24 and 25, 2018. PFR File, Tab 1 at 6-9. Under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). The record closed at the end of the July 19, 2018 hearing. IAF,
Tab 26 at 4-5; 5 C.F.R. § 1201.59(a). The appellant failed to address whether this
evidence was unavailable before the close of the record despite his due diligence,
so we have not considered it. Moreover, the evidence shows no reason to disturb
the administrative judge’s findings. PFR File, Tab 1 at 6-9.
The appellant also provides a response he received from the agency on a
FOIA request concerning violations of the Privacy Act between January 1, 2016,
and March 30, 2017. PFR File, Tab 1 at 11-12. Although the FOIA response is
dated after the close of the record, making the material new, we note that the9
response indicates that the appellant did not make his request until July 25, 2018,
which was also after the record closed, reflecting a lack of diligence on his part.
Nevertheless, the FOIA response does not identify any individuals who violated
the Privacy Act, much less any who committed the misconduct documented in
this action. PFR File, Tab 1 at 11-12. Instead, it reports that the agency made
5,983 offers of Credit Protection Services (CPS) during that time period to
persons whose full or partial social security numbers may have been revealed and
305 CPS offers related to the disclosure of individuals’ dates of birth. Id. The
response indicates that the agency had no records regarding the suspension of any
personnel who violated the Privacy Act, not that no such discipline was issued.
Id. Noticeably, the agency did not identify the appellant’s suspension, which was
issued during this timeframe. IAF, Tab 14 at 4.
Thus, even if we were to consider the appellant’s new evidence, it does not
establish that the agency treats similarly situated individuals who are not
whistleblowers differently. The Board will not grant a petition for review based
on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision . Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). Moreover, the totality of the
agency’s evidence in support of the first and second Carr factors is strong, and
more than make up for any dearth of evidence on the third Carr factor.
Therefore, to the extent the administrative judge erred in assigning the burden of
proof as to Carr factors 2 and 3 to the appellant, the error did not prejudice his
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) . 10
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Porter_Billy_J_DA-1221-18-0172-W-1 Final Order.pdf | 2024-03-14 | null | DA-1221-18-0172-W-1 | NP |
2,091 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Benning_Janel_L_DE-0752-22-0101-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANEL L. NELSON BENNING,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-22-0101-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
anel L. Nelson Benning , Phoenix, Arizona, pro se.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction .2 On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The appellant’s petition for review appears to be filed 1 day late. Initial Appeal File,
Tab 9, Initial Decision at 5; Petition for Review File, Tab 1 at 3; see 5 C.F.R.
§1201.114(e). We need not address the timeliness of the petition for review, however,
because we affirm the initial decision’s dismissal of the appeal on jurisdictional
grounds. See Rosell v. Department of Defense , 100 M.S.P.R. 594, ¶ 5 (2005 ) (stating
the appellant argues the merits of her termination and asserts that she was not
granted a hearing or permitted to engage in discovery. Petition for Review File,
Tab 1 at 5. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
that the existence of Board jurisdiction is the threshold issue in adjudicating an appeal
and ordinarily should be determined before reaching the issue of timeliness), aff’d,
191 F. App’x 954 (Fed. Cir. 2006).
3 Because the administrative judge correctly found that the appellant failed to
nonfrivolously allege Board jurisdiction, we discern no error in his disposition of the
appeal without holding the appellant’s requested hearing. See Coleman v. Department
of the Army, 106 M.S.P.R. 436, ¶ 9 (2007 ) (stating that an appellant is entitled to a
jurisdictional hearing if she presents nonfrivolous allegations of Board jurisdiction).
Additionally, because we agree with the administrative judge’s conclusion that the
appellant failed to establish that she was an “employee” with Board appeal rights under
5 U.S.C. § 7511(a)(1)(C), and, thus, failed to establish Board jurisdiction over her
appeal, we do not consider her claims on review regarding the merits of her termination
or her claim that she was denied the ability to engage in discovery. See Sapla
v. Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012 ) (declining to consider an
argument that is not relevant to the question of jurisdiction when the issue before the
Board is whether it has jurisdiction to consider the appellant’s appeal). 2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nelson_Benning_Janel_L_DE-0752-22-0101-I-1_Final_Order.pdf | 2024-03-14 | JANEL L. NELSON BENNING v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-22-0101-I-1, March 14, 2024 | DE-0752-22-0101-I-1 | NP |
2,092 | https://www.mspb.gov/decisions/nonprecedential/Owens_JaimeCH-1221-19-0309-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAIME OWENS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-19-0309-W-1
DATE: March 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Peter Reinhardt , Esquire, Menomonie, Wisconsin, for the appellant.
Jason F. Rudie , Minneapolis, Minnesota, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the Central Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2Effective July 23, 2017, the appellant was hired as a Nurse Practitioner
under the hiring authority of 38 U.S.C. § 7401(1). Initial Appeal File (IAF),
Tab 7 at 243. Her appointment was subject to the successful completion of a
2-year probationary period. Id. On August 27, 2018, the appellant disclosed to
the agency’s Office of the Inspector General (OIG) that a specific doctor who
worked at her clinic had called in sick on August 16, 2018, and then worked at a
non-VA hospital that day. IAF, Tab 6 at 4-7. On October 2, 2018, the appellant
received notice that a Nurse Professional Standards Board (NPSB) would be
convened on October 15, 2018, to conduct a summary review of her employment.
IAF, Tab 7 at 52-56. The notice stated that the Board was being convened to
review deficiencies in her conduct or performance regarding “inappropriate
behavior.” Id. at 55-56. On October 29, 2018, the NPSB completed its review
and recommended that the appellant be terminated from her position during her
probationary period. Id. at 33-35. The agency subsequently issued a letter dated
November 21, 2018, terminating the appellant, effective December 8, 2018.
Id. at 29-32.
¶3On October 10, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC), in which she alleged that the agency had convened the
NPSB against her in retaliation for her protected disclosure or activity. IAF,
Tab 1 at 23-27. By a letter dated December 10, 2018, the agency stayed its
decision to terminate the appellant until January 4, 2019, apparently based on the
appellant’s pending complaint with OSC. Id. at 16, 19. On February 12, 2019,
OSC closed its investigation into the appellant’s complaint, id. at 22, and on
February 13, 2019, the agency lifted the stay on the appellant’s termination, and
terminated her, effective immediately, id. at 16. 2
¶4The appellant timely filed the instant IRA appeal on April 18, 2019, and
requested a hearing. IAF, Tab 1 at 2. The administrative judge issued an
acknowledgment order and a jurisdictional order setting forth the elements and
burdens of establishing jurisdiction over an IRA appeal. IAF, Tabs 2-3.
The appellant filed a narrative response to the orders and filed a copy of the
complaint she submitted to OIG, and the agency filed its response file.
IAF, Tabs 4, 6, 7.
¶5Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID). The administrative judge concluded that the
appellant had exhausted her administrative remedies with OSC regarding her
whistleblower reprisal claim. ID at 5. Turning to the content of the appellant’s
claim, the administrative judge determined that the appellant failed to meet her
burden of making a nonfrivolous allegation that she made a protected disclosure
under 5 U.S.C. § 2302(b)(8), when she disclosed to OIG that a doctor had
engaged in potential time and attendance fraud by calling in sick while working at
another hospital. ID at 6-7. Conversely, the administrative judge concluded that
the appellant had nonfrivolously alleged that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(C) when she contacted OIG to complain about the
potential time and attendance fraud. ID at 7-8. Nevertheless, the administrative
judge concluded that the appellant failed to nonfrivolously allege that her
protected activity was a contributing factor in the agency’s decision to convene
the NPSB. ID at 8-9. Specifically, the administrative judge determined that the
appellant had not produced any evidence that the allegedly retaliating agency
officials were aware that the appellant had filed a complaint with OIG, and so the
appellant could not establish that her protected activity contributed to their
decision to recommend convening the NPSB. ID at 8-9. Consequently, the
administrative judge concluded that the appellant had failed to make the requisite
nonfrivolous allegation to establish jurisdiction over her IRA appeal3
and dismissed the appeal accordingly. ID at 9. The appellant has timely filed a
petition for review, and the agency has not filed a response. Petition for Review
(PFR) File, Tab 1.
ANALYSIS
¶6To establish Board jurisdiction over an IRA appeal, the appellant must
exhaust her administrative remedies before OSC and make nonfrivolous
allegations that (1) she made a whistleblowing disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take, fail to take, or threaten to
take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department of
Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 (2016); 5 C.F.R.
§ 1201.4(s). Whether allegations are nonfrivolous is determined on the basis of
the written record. Bradley, 123 M.S.P.R. 547, ¶ 6. Any doubt or ambiguity as
to whether the appellant made nonfrivolous jurisdictional allegations should be
resolved in favor of finding jurisdiction. Id.
¶7Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence.2 Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves
that her protected disclosure or activity was a contributing factor in a personnel
action taken against her, the agency is given an opportunity to prove, by clear and
convincing evidence, that it would have taken the same personnel action in the
absence of the protected disclosure. Id.
2 Preponderant evidence is that degree of relevant evidence a reasonable person,
considering the record as a whole, would accept as sufficient to find a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
¶8On review, the appellant challenges the administrative judge’s finding that
she did not make a nonfrivolous allegation that she made a protected disclosure
under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 5-6. She also argues that she
nonfrivolously alleged that her protected activity under 5 U.S.C. § 2302(b)(9)(C)
of contacting the agency’s OIG was a contributing factor in the agency’s decision
to terminate her, and therefore, the administrative judge erred by dismissing her
appeal for lack of jurisdiction. Id. at 6-8.
¶9Regarding the latter claim, the administrative judge considered whether the
appellant’s complaint to OIG constituted protected activity under 5 U.S.C.
§ 2302(b)(9)(C), which describes as protected activity, “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law,” and concluded that the
appellant’s disclosures to OIG constituted protected activity under this provision.
ID at 7-8. We find no error in this determination. See Fisher v. Department of
the Interior, 2023 MSPB 11, ¶ 8 (concluding that disclosures of information to an
agency’s OIG are protected regardless of their content, as long as such
disclosures are made “in accordance with applicable provisions of law”).
¶10The administrative judge next considered whether the appellant’s protected
activity was a contributing factor in the agency’s decision to terminate her.
The administrative judge concluded that, because the appellant had not provided
any evidence that either of the individuals who initiated the investigation that led
to her termination had any knowledge of her disclosure to OIG, she could not
meet her burden of making a nonfrivolous allegation that her protected activity
was a contributing factor in the agency’s decision to terminate her. ID at 8.
In determining that the appellant failed to nonfrivolously allege contributing
factor, the administrative judge considered the “knowledge/timing” test, by which
the Board considers whether an appellant has demonstrated that the official who
took the contested personnel action learned of the protected activity within a5
period of time such that a reasonable person could conclude that the protected
activity was a contributing factor in the personnel action. Id. (citing Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 26 (2011)).
Concluding that the appellant failed to meet her burden under the
knowledge/timing test, the administrative judge acknowledged that the appellant
gave OIG permission to disclose her name to agency management but noted that
her release form specified that OIG could not release her written complaint or any
other personally identifying information to agency managers. ID at 9; IAF, Tab 6
at 7. Based on this fact, and the fact that the appellant did not allege that OIG
interviewed either of the agency officials who purportedly retaliated against her,
the administrative judge concluded that there was no evidence in the record
establishing that the responsible agency officials were aware of the appellant’s
protected activity. ID at 9.
¶11However, the Board has determined that an 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 knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id. The administrative judge did not
specifically consider whether either of the allegedly retaliating agency officials
had constructive knowledge of the appellant’s protected activity.
¶12Although the administrative judge determined that there was no evidence
that either of the allegedly retaliating agency officials was aware that the
appellant filed a complaint with OIG, as the appellant correctly notes, the doctor
who was the subject of the appellant’s disclosure to OIG (and who was also one
of the individuals the appellant alleged retaliated against her by convening the
NPSB) appeared to suggest that he was aware of the content of the appellant’s
allegations to OIG, in his letter requesting the convening of the NPSB. PFR File,6
Tab 1 at 7-8; see IAF, Tab 7 at 85-86 (alleging that the appellant had “targeted”
him and had “claimed unsubstantiated, unethical, and personal allegations of
which she has no knowledge,” in a memorandum dated September 10, 2018, after
the appellant’s disclosure to OIG, but before the convening of the NPSB). The
record also reflects that the NPSB members who recommended the appellant’s
termination were also aware of her disclosure to OIG, since they specifically
reference the content of her OIG disclosure in the termination recommendation.
See IAF, Tab 7 at 33 (“Ms. Owens has been noted to talk about other staff
members when they are not present. Examples include; certain staff sleep on the
job; certain staff call in sick and work elsewhere . . . . These accusations were
unfounded.”) (emphasis added).
¶13Based on the fact that the agency official who recommended convening the
NPSB and the NPSB members who recommended that the appellant be removed
were all aware of the appellant’s OIG disclosure at the time they took the relevant
actions, we conclude that the appellant has provided sufficient evidence that the
allegedly retaliating agency officials had constructive knowledge of her protected
activity. Accordingly, we conclude that the appellant has met her burden of
making a nonfrivolous allegation of Board jurisdiction over her IRA appeal, and
we remand the appeal for a hearing on the merits of her claim. On remand, the
appellant will have the opportunity to prove, by a preponderance of the evidence,
that her protected activity was a contributing factor in the agency’s decision to
terminate her. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 21
(2016).
¶14The Board has held that the knowledge/timing test is not the only way for
an appellant to satisfy the contributing factor element. 5 U.S.C. § 1221(e)(1);
see Stiles v. Department of Homeland Security , 116 M.S.P.R. 263, ¶ 24 (2011).
If an appellant fails to satisfy the knowledge/timing test, the Board must 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 was7
personally directed at the proposing or deciding officials, and whether these
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012); Stiles, 116 M.S.P.R.
263, ¶ 24. Although the administrative judge identified in her jurisdictional order
the ways to show that a protected activity was a contributing factor in a personnel
action other than through knowledge/timing evidence, in the initial decision she
did not evaluate any of the other methods for doing so beyond the
knowledge/timing test. IAF, Tab 3 at 4-5; ID at 8-9.
¶15Here, the fact that the allegedly retaliating agency official and the NPSB
members were apparently all aware of the appellant’s OIG disclosures prior to
making their respective recommendations could be relevant to the
non-knowledge/timing methods for establishing contributing factor, such as the
strength or weakness of the agency’s reasons for terminating the appellant,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether he had a desire or motive to retaliate against the appellant.
See Dorney, 117 M.S.P.R. 480, ¶ 15; Stiles, 116 M.S.P.R. 263, ¶ 24. On remand,
if the administrative judge determines that the appellant failed to meet her burden
of proving contributing factor based on the knowledge/timing test,
the administrative judge should also consider these non-knowledge/timing
methods for proving contributing factor.
¶16Finally, because we conclude that the appellant met her burden of making a
nonfrivolous allegation of Board jurisdiction regarding her claim that she engaged
in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she contacted OIG, we
need not address the administrative judge’s finding that the appellant failed to
nonfrivolously allege that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). ID at 7. 8
ORDER
¶17For the reasons discussed above, we vacate the initial decision and remand
this case to the Central Regional Office for the hearing the appellant requested
and for further adjudication in accordance with this Remand Order.3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.9 | Owens_JaimeCH-1221-19-0309-W-1 Remand Order.pdf | 2024-03-14 | JAIME OWENS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0309-W-1, March 14, 2024 | CH-1221-19-0309-W-1 | NP |
2,093 | https://www.mspb.gov/decisions/nonprecedential/McFarland_Michael_J_CH-1221-19-0172-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. MCFARLAND,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-19-0172-W-1
DATE: March 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael J. McFarland , Elyria, Ohio, pro se.
Amber Groghan , Esquire, and Nick Pasquarella , Esquire, Akron, Ohio, for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
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 due
to his failure to exhaust administrative remedies. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision, and REMAND the case to the Central Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
On February 25, 2015, the agency proposed to remove the appellant from
his Advanced Medical Support Assistant position based on a charge of
inappropriate access of patient medical records. Initial Appeal File (IAF), Tab 15
at 68-70. After the agency indicated that it sustained the reasons set forth in the
notice of proposed removal, the appellant signed a last chance agreement on or
about May 28, 2015, providing that the agency would hold its removal decision in
abeyance for 1 year from the date the agreement was signed, so long as, among
other things, the appellant demonstrated acceptable conduct and performance. Id.
at 66-67. In exchange, the appellant “agree[d] to waive all administrative and/or
negotiated grievance and appeal rights, including but not limited to the [agency]
grievance procedures, negotiated grievance procedures, Merit Systems Protection
Board, and the [equal employment opportunity (EEO)] complaint process.” Id.
at 66. In early 2016, the agency determined that the appellant violated the last
change agreement, and on April 1, 2016, it effected his removal. IAF, Tab 1 at 8,
Tab 15 at 30-32. The appellant filed an EEO complaint after he was removed,
and the parties entered into a settlement agreement on July 1, 2016. IAF, Tab 18
at 48.
On June 28, 2018, the appellant filed a complaint with the Office of Special
Counsel (OSC). Petition for Review (PFR) File, Tab 7 at 20-30. He alleged that
his removal and other personnel actions were taken in retaliation for
whistleblowing disclosures that he made in October 2014. Id. at 23-28. His
whistleblowing disclosures concerned a Physician Assistant, also known as a
Provider, who allegedly (1) improperly revealed to him confidential medical
information about a patient and was biased against the patient, and (2) abused her
authority by making a biased decision to indicate that the patient should be denied2
the benefits he sought. Id. at 23-24. OSC closed its investigation into the
appellant’s complaint. IAF, Tab 1 at 7. This IRA appeal followed. IAF, Tab 1.
The appellant did not request a hearing. Id. at 5.
The administrative judge issued an order on jurisdiction and proof
requirements, informing the parties of their respective burdens in an IRA appeal,
and ordering the appellant to file evidence and argument establishing the Board’s
jurisdiction over his appeal. IAF, Tab 3. The administrative judge initially found
that the appellant “arguably” established jurisdiction. IAF, Tab 12 at 1.
However, in her initial decision based on the written record, the administrative
judge found that the appellant failed to establish that he exhausted his
administrative remedies. IAF, Tab 19, Initial Decision (ID). She therefore
dismissed the IRA appeal for lack of jurisdiction. ID.
On petition for review, for the first time, the appellant submits a copy of
his OSC complaint, along with some of his correspondence with OSC. PFR File,
Tab 1 at 6-9. The agency has filed a response opposing the petition, and the
appellant has filed a reply to the response. PFR File, Tabs 4-5.
The Office of the Clerk of the Board issued an order for the appellant to
resubmit his OSC complaint because it was illegible in the hard-copy file and the
electronic version appeared to be incomplete, and it provided the agency an
opportunity to reply to the appellant’s response. PFR File, Tab 6. In his
response, the appellant resubmitted a complete and legible copy of his OSC
complaint, along with numerous other documents. PFR File, Tabs 7-8. The
agency responded by requesting that all of the appellant’s submitted documents,
except for the OSC complaint, be stricken from the record. PFR File, Tab 9. The
appellant subsequently explained that he submitted other documents that were
also previously erroneously uploaded or incomplete. PFR File, Tab 10. The3
agency filed a motion requesting that the Board strike the appellant’s response.2
PFR File, Tab 11.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that (1) he made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)
(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir.
2001). 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. Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves
by preponderant evidence that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
Id.; see 5 U.S.C. § 1221(e)(1)-(2).
The appellant exhausted his administrative remedies regarding his assertion that
the agency retaliated against him for making whistleblowing disclosures.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must provide to OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. The purpose of this exhaustion requirement is to give OSC
2 Although the appellant did not obtain leave from the Office of the Clerk of the Board
before filing his response, PFR File, Tab 10; see 5 C.F.R. § 1201.114(a)(5), for the
reasons discussed in this Remand Order, we nevertheless accept the pleading into the
record. We also deny the agency’s motion to strike.4
“the opportunity to take corrective action before involving the Board in the case.”
Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992).
In his OSC complaint, the appellant stated that, in October 2014, a patient
and a Provider had a dispute about the patient’s medical claim.3 PFR File, Tab 7
at 23-24. The Provider allegedly told the appellant that the patient was a “jerk
with mental issues, that he was trying to screw the government over by claiming a
fertility issue, [and] that he had [a sexually transmitted disease].” Id. at 24. The
appellant then told his supervisor and the chief of his department about this
dispute, he stated that he believed the Provider was biased and violated
confidentiality provisions, and he asked that the patient be reexamined by
someone else. Id. This conversation appears to be his first disclosure.
After the Provider learned that the patient had complained about her, she
amended her notes about the patient’s medical claim and told “the decision
makers to not overturn her decision.” Id. Approximately 1 week after his first
disclosure, the appellant told the patient and his chief’s supervisor about both the
Provider’s prior statement and her amendment to her notes, which he believed
was an abuse of power. Id. We construe his statements to the patient and his
chief’s supervisor as his second disclosure.
The appellant further informed OSC that, in the aftermath of his
disclosures, he was (i) subjected to an investigation, (ii) placed on a detail with
different duties, (iii) forced to sign a last chance agreement in lieu of removal,
(iv) demoted, (v) reassigned to a different city, and (vi) removed. Id. at 24-26.
He also noted that, following his removal, the parties signed a settlement
agreement to resolve his EEO complaint, and the agency breached the agreement
by failing to change his Standard Form 50 to reflect that he had resigned, id.
at 26. This allegation of agency breach appears to be an additional allegation of a
personnel action. Based on the foregoing, we find that the appellant has
3 Although the appellant has filed this evidence for the first time on petition for review,
we find it appropriate to consider it under the circumstances. See 5 C.F.R.
§ 1201.115(e). 5
exhausted his administrative remedies with OSC regarding his two disclosures
and these various actions.
The record is insufficiently developed for us to determine the effect, if any, of the
parties’ last chance agreement and the EEO settlement agreement on the
appellant’s ability to pursue this IRA appeal.
In its correspondence with the appellant, OSC indicated that it lacked the
authority to review his claims because he had waived his appeal rights, to include
an OSC complaint, when he signed the last chance agreement, and he had waived
all future complaint and appeal rights based on actions that occurred prior to
June 6, 2016, in his EEO settlement agreement. PFR File, Tab 1 at 7. The
parties’ last chance agreement is in the record, IAF, Tab 15 at 66-67, but the EEO
settlement agreement is not.
Additionally, on April 6, 2018, the agency’s Office of Resolution
Management (ORM) found that the agency breached the EEO settlement
agreement. IAF, Tab 18 at 48-53. The appellant was advised by ORM that he
could elect to have his EEO complaint reinstated, but that if he did so, the parties
would be returned to the status quo ante, i.e., the conditions that were present
prior to the settlement agreement. Id. at 50-51. We cannot determine, based on
the current record, whether the appellant elected to reinstate his EEO complaint,
or what, if anything, may have occurred after ORM’s finding of agency breach.
Additionally, as noted above, the EEO settlement agreement is not in the record.
Moreover, it does not appear that the parties were directed to brief potentially
dispositive issues, below, such as the scope and enforceability of the appeal rights
waiver contained in the last chance and EEO settlement agreements.
Accordingly, we remand the appeal for the parties to submit the EEO settlement
agreement and provide evidence and argument regarding these issues.4 See, e.g.,
4 If, on remand, the administrative judge determines that the IRA appeal should proceed
in whole or in part, she should evaluate whether the appellant has met his burden to
make a nonfrivolous allegation that he made a whistleblowing disclosure or engaged in
protected activity that was a contributing factor in the agency’s decision to take a
personnel action against him. In determining whether the appellant met this burden, the6
Branch v. Department of the Army , 110 M.S.P.R. 663, ¶ 10 (2009) (noting that
the Board does not have jurisdiction over an action taken pursuant to a last
chance agreement in which an appellant waives his right to appeal to the Board
and outlining when a waiver of appeal rights may be unenforceable).
ORDER
For the reasons discussed above, we remand this appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
administrative judge should consider the Board’s decisions in Spivey v. Department of
Justice, 2022 MSPB 24, ¶¶ 10-15, and Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 18, holding that a nonfrivolous allegation of an investigation and
claim of a hostile work environment, respectively, are personnel actions. 7 | McFarland_Michael_J_CH-1221-19-0172-W-1 Remand Order.pdf | 2024-03-14 | MICHAEL J. MCFARLAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0172-W-1, March 14, 2024 | CH-1221-19-0172-W-1 | NP |
2,094 | https://www.mspb.gov/decisions/nonprecedential/Hatch_Jeffrey_J_DC-0752-17-0416-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY J. HATCH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-17-0416-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey J. Hatch , Roanoke, Virginia, pro se.
W. Iris Barber , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the agency did not prove the lack of candor charge, we AFFIRM the
initial decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The agency proposed to remove the appellant from his GS-14 General
Attorney position based on four charges: (1) Failure to Timely Carry Out Duties
as Agency Attorney, supported by 13 specifications; (2) Failure to Properly Carry
Out Duties as Agency Attorney, supported by 24 specifications; (3) Failure to
Follow Supervisory Instructions, supported by 7 specifications; and (4) Lack of
Candor (charging that, when asked if he had informed the agency official
designated as the client that default judgments had been entered in various cases,
his response inferred that he had done so when he had not), supported by
5 specifications. Initial Appeal File (IAF), Tab 5 at 32-40. The appellant
responded to the notice, admitting to some of the charged misconduct and
explaining that he was being treated for depression following treatment for
cancer. Id. at 17-20. The deciding official sustained the following: charge (1),
specifications 3 -4, 6-13; charge (2), specifications 2-6, 8-9, 14-20, 23 -24;
charge (3), specifications 1-7; and charge (4), specifications 3 -5. Thus, the
deciding official sustained all of the charges, and found that the removal penalty
was appropriate and within the range of reasonableness. Id. at 13. 2
The appellant appealed the agency’s action. IAF, Tab 1. During
proceedings before the Board, he failed to follow numerous Board orders, and the
originally assigned administrative judge cancelled the appellant’s requested
hearing as a sanction. IAF, Tab 15. He also precluded the appellant from
introducing evidence of any physical and/or mental ailments and treatment as a
sanction for failing to comply with the agency’s second discovery request. IAF,
Tab 19. Another administrative judge was assigned to issue the initial decision
based on the written record. IAF, Tab 24. In the initial decision, the
administrative judge found that the agency proved its charges by preponderant
evidence. IAF, Tab 25, Initial Decision (ID) at 4-15. He also found that the
agency proved nexus between the charged misconduct and the efficiency of the
service, and that the penalty was within the bounds of reasonableness. ID
at 15-19.
In his petition for review, the appellant argues that the administrative judge
failed to address the due process violations and the pre-decisional bias of the
deciding official. The appellant also contends that the administrative judge
improperly analyzed the proof necessary to establish a lack of candor charge and
did not properly address all relevant Douglas2 factors. Petition for Review (PFR)
File, Tab 1.3 The agency has responded in opposition to the petition. PFR File,
Tab 3.
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
appropriate penalty for an act of misconduct. The Douglas factors include, inter alia,
the nature and seriousness or the offense, the employee’s past disciplinary record, his
potential for rehabilitation, and any mitigating circumstances surrounding the offense.
3 The appellant appears to argue that he should have been charged with poor
performance, not misconduct. However, it is well settled that an agency may impose an
adverse action for unacceptable performance under 5 U.S.C. chapter 75. See Fairall v.
Veterans Administration , 33 M.S.P.R. 33, 40, aff’d, 844 F.2d 775 (Fed. Cir. 1987).3
ANALYSIS
The administrative judge erred in finding that the agency proved the lack of
candor charge by preponderant evidence.
Lack of candor “is a broader and more flexible concept” than falsification.
Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002).
However, although lack of candor does not require an “affirmative
misrepresentation,” it “necessarily involves an element of deception.” Id.
at 1284-85. An agency alleging lack of candor must prove the following
elements: (1) the employee gave incorrect or incomplete information; and (2) he
did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016).
The sustained specifications underlying the agency’s lack of candor charge
allege that, during a meeting on October 13, 2016, the appellant stated that he had
told the client that default judgments had been entered in three cases assigned to
him. IAF, Tab 5 at 39-40. To prove the charge, the agency introduced the sworn
declarations of the Deputy Chief Counsels and the Chief Counsel. These
declarations corroborate, in pertinent part, that the appellant made the statements
identified in the charge. IAF, Tab 20 at 37-38, 43-45, Tab 23 at 11, 13, 15. The
Deputy Chief Counsels and the Chief Counsel were present when the appellant
stated that he had told the client of the default judgments, and, thus, their sworn
declarations are evidence of the appellant’s statements on October 13, 2015. The
agency also introduced a contemporaneous summary of the meeting with the
client who said that the appellant had not told her of the default judgments. IAF,
Tab 8 at 244.
In the initial decision, the administrative judge found that the agency’s
evidence established the lack of candor charge. ID at 15. However, he failed to
make specific findings on the knowing element of the lack of candor charge,
considering all the evidence of record. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (finding that an initial decision must4
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).
Because the record is fully developed on the lack of candor charge, the Board can
analyze whether the agency established the knowing element of the lack of candor
charge without remanding the case. See Forte v. Department of the Navy ,
123 M.S.P.R. 124, ¶ 27 (2016)
Although the agency’s evidence established that the appellant appears to
have given incorrect information, it does not show that he did so knowingly. The
appellant stated that he believed that he discussed the cases that resulted in the
default judgments with the client at a monthly meeting in early August 2016, at a
time when another case was discussed. IAF, Tab 21 at 6. He contends that he
told the deciding official at the oral reply meeting that he could accept that the
client had a different recollection, but that he never attempted to remove orders or
otherwise alter documents and never had any intention of deceiving anyone about
the facts of the cases. Id. The appellant’s statement admits that his recollection
and that of the client differ, but it does not concede that the client’s recollection
of what he said is accurate. Moreover, on review, the appellant contends that he
was candid with his supervisors and never withheld any information necessary for
them to uncover his failure to carry out his duties. PFR File, Tab 1. Under these
circumstances, the agency’s evidence falls short of establishing that the appellant
knowingly gave incorrect or incomplete information during the October 13, 2016
meeting. See Fargnoli, 123 M.S.P.R. 330, ¶ 17. Accordingly, we modify the
initial decision to find that the agency failed to prove the lack of candor charge.
However, we find no basis for disturbing the administrative judge’s well -reasoned
findings regarding charges (1), (2), and (3).
The appellant’s due process claims do not provide a basis for review.
In the September 7, 2017 Order and Summary of Close of Record
Conference, the administrative judge determined that the material issues to be5
decided in this appeal are whether the agency can prove the following by
preponderant evidence: the appellant engaged in the charged misconduct; there is
nexus between the penalty and the efficiency of the Federal service; and the
removal penalty was reasonable. The administrative judge stated that the
appellant did not raise any affirmative defenses. IAF, Tab 19. The
administrative judge stated that, if any party disagreed with the summary, they
must notify the Board within 7 calendar days of the date of the September 7, 2017
order. Id. at 3. The appellant failed to make a timely objection to the summary.
On September 22, 2017, the appellant raised due process claims for the first time.
IAF, Tab 21 at 7. The administrative judge therefore correctly noted in the initial
decision that these claims were waived. ID at 19 n.15.
In any event, although the Board has held that it would be a violation of
due process “to allow an individual’s basic rights to be determined either by a
biased decisionmaker or by a decisionmaker in a situation structured in a manner
such that [the] risk of unfairness is intolerably high,” Martinez v. Department of
Veterans Affairs , 119 M.S.P.R. 37, ¶ 6 (2012) (quoting Withrow v. Larkin ,
421 U.S. 35, 58 (1975)), the appellant’s assertion of pre-decisional bias is
unavailing. The appellant alleges that the deciding official already had decided
that a failure to carry out duties is the “most serious” offense that could be
committed and asked for a Standard Form 52 in the event the appellant decided to
resign. However, the Board has found that there is no general proscription of
appointing a deciding official who is familiar with the facts of the case and who
has expressed a predisposition contrary to the appellant’s interests. Svejda v.
Department of the Interior , 7 M.S.P.R. 108, 111 (1981). The appellant also
alleges that the deciding official took an active role in the investigation.
However, the Board has found that a deciding official’s knowledge of and
involvement in an investigation that led to the appellant’s removal did not violate
due process. See Lange v. Department of Justice , 119 M.S.P.R. 625, ¶ 10 (2013).6
The appellant additionally asserts that, after the proposing official revoked
the appellant’s computer access out of fear that the appellant could destroy
documents relevant to the agency’s case, the deciding official took no action to
have the appellant’s computer access restored, thereby allegedly denying him due
process in his defense. PFR File, Tab 1 at 4. Although the proposing official
revoked the appellant’s computer access for a time, the agency established that it
restored the appellant to read -only access to all of his computer files for more
than a week before he responded to the notice. IAF, Tab 23 at 10-11. Under
these circumstances, the deciding official’s inaction to restore the appellant’s
computer access did not adversely affect his due process right to an opportunity
to respond to the notice of proposed removal. See Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 681 (1991) (finding that due process ordinarily
requires prior notice of the reason for a proposed adverse action, an explanation
of the agency’s evidence, and the right to respond (citing Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985))).
Removal is a reasonable penalty for the sustained charges.
Because the administrative judge erred in sustaining all the charges, the
penalty analysis based on proof of all the charges must be reexamined. When not
all the charges are sustained, the Board will consider carefully whether the
sustained charges merited the penalty imposed by the agency. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 308 (1981). The Board may mitigate
the agency’s penalty to the maximum reasonable penalty so long as the agency
has not indicated in either its final decision or in proceedings before the Board
that it desires that a lesser penalty be imposed on fewer charges. Lachance v.
Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). However, in doing so, the Board
may not disconnect its penalty determination from the agency’s managerial will
and primary discretion in disciplining employees. Id. at 1258.
Here, the agency has not stated a desire that a lesser penalty be imposed on
fewer charges. Further, the misconduct was serious. The appellant’s failure to7
carry out his duties related directly to his duties, position, and responsibilities.
See Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010) (stating that
the most important factor in assessing whether the agency’s chosen penalty is
within the tolerable bounds of reasonableness is the nature and seriousness of the
misconduct and its relation to the employee’s duties, position, and
responsibilities). Additionally, the misconduct was known outside of the agency
and thus had some notoriety, resulting in a detrimental impact on the agency’s
reputation. It also had a detrimental impact on the agency’s fiscal interests
because of the payments the agency had to make as a result of the default
judgments that resulted from the appellant’s failure to carry out his duties. We
find that, in light of the seriousness of the proven misconduct, and its notoriety,
even considering all of the appropriate mitigating factors, including the
appellant’s lack of disciplinary record and remorse, the removal penalty does not
exceed the tolerable limits of reasonableness.
Accordingly, we affirm the initial decision.
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
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
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 10
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 | Hatch_Jeffrey_J_DC-0752-17-0416-I-1 Final Order.pdf | 2024-03-14 | JEFFREY J. HATCH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-17-0416-I-1, March 14, 2024 | DC-0752-17-0416-I-1 | NP |
2,095 | https://www.mspb.gov/decisions/nonprecedential/Foggie_Vonciel_C_DC-0842-22-0587-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VONCIEL C. FOGGIE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0842-22-0587-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vonciel C. Foggie , Washington, D.C., pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed, without good cause shown, her appeal of the Office
of Personnel Management’s final decision denying her request for retirement
benefits.2 On petition for review, the appellant argues the merits of her appeal
and additional retirement concerns that she had raised below. 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. Regarding the timeliness issue, she asserts that she did not read or
“fully acknowledge” the documents informing her of the filing deadline until late
July or early August 2022, and argues for the first time that several
circumstances, such as mental illness, “distractions of sexual abuse,” and mail
being “misdelivered” contributed to her delay. Id. at 3, 17. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R.
§ 1201.113(b).
2 The Office of Personnel Management issued two nearly identical letters, dated June 9,
2022, and June 10, 2022, denying the appellant’s request, and the Board has considered
both as the agency’s final decision in this appeal.
3 As noted above, the appellant’s arguments addressing the timeliness of her appeal are
raised for the first time on review. The Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence. Clay
v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016 ). The appellant has not made
this showing. Even considering these arguments, however, the appellant has not
provided the Board with any details surrounding the above-referenced circumstances.
As such, she has not established good cause for her untimely appeal. The appellant’s
petition for review in Foggie v. Department of the Treasury , MSPB Docket No.
DC-0752-23-0015-I-1 will be addressed in a separate decision.2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Foggie_Vonciel_C_DC-0842-22-0587-I-1 Final Order.pdf | 2024-03-14 | VONCIEL C. FOGGIE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0842-22-0587-I-1, March 14, 2024 | DC-0842-22-0587-I-1 | NP |
2,096 | https://www.mspb.gov/decisions/nonprecedential/Miller_Richard_L_DE-0831-14-0340-C-1 Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD MILLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0831-14-0340-C-1
DATE: March 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Richard L Miller , Colorado Springs, Colorado, pro se.
Angerlia D. Johnson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
¶1The appellant has timely petitioned for review of the January 26, 2023
compliance initial decision, which denied his petition for enforcement of the
Board’s order directing the Office of Personnel Management (OPM) to issue a
final decision on his rights and interests under the Civil Service Retirement
System (CSRS). For the reasons discussed below, we GRANT the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, REVERSE the compliance initial decision, FIND OPM in
NONCOMPLIANCE, and ORDER OPM to issue a final decision.
BACKGROUND
¶2The appellant retired from Federal civilian service in 2012 after a career
that included both civilian and military service. Miller v. Office of Personnel
Management, 124 M.S.P.R. 62, ¶ 2 (2016), aff’d in part, rev’d in part, and
remanded, 903 F.3d 1274 (Fed. Cir. 2018). OPM granted his application for
immediate CSRS retirement but, in a March 2014 reconsideration decision,
determined that certain periods of his employment were not creditable for
purposes of calculating his CSRS annuity because they were credited as military
service towards his military retirement. Miller v. Office of Personnel
Management, MSPB Docket No. DE-0831-14-0340-I-1, Initial Appeal File (IAF),
Tab 4 at 5-7. The appellant filed an appeal of the matter with the Board and,
thereafter, with the U.S. Court of Appeals for the Federal Circuit. Miller v. Office
of Personnel Management , 903 F.3d 1274 (Fed. Cir. 2018). The Federal Circuit
issued a precedential decision on September 10, 2018, and remanded the appeal to
the Board for further proceedings consistent with its decision. Id. at 1286. On
August 15, 2022, the Board issued an order remanding the case to OPM in
accordance with the Federal Circuit’s decision for the issuance of a new final
decision addressing the recalculation of the appellant’s CSRS retirement annuity.
Miller v. Office of Personnel Management , MSPB Docket No. DE-0831-14-0340-
M-1, Remand Order, ¶ 12 (Aug. 15, 2022) (Remand Order). It also ordered OPM
to issue a final decision addressing a new refund request by the appellant in the
first instance. Id., ¶¶ 11-12. The Board stated that OPM “shall advise the
appellant in any new final decision addressing the above issues of his right to file
an appeal with the Board’s Denver Field Office if he disagrees with that
decision.” Id., ¶ 12. Finally, the Board ordered OPM to “tell the appellant2
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.” Id., ¶ 13.
¶3On October 14, 2022, more than 60 days following the issuance of the
Board’s Order, the appellant filed a petition for enforcement averring that he had
not received written notification from OPM that it had complied with the Board’s
Order. Miller v. Office of Personnel Management , MSPB Docket No. DE-0831-
14-0340-C-1, Compliance File (CF), Tab 1. The administrative judge issued an
Order to Show Cause to OPM on December 20, 2022. CF, Tab 9. In response,
OPM submitted to the Board a letter, which it identified as an initial decision,
dated January 13, 2023. CF, Tab 14 at 4-33. The letter informed the appellant of
his right to request reconsideration with OPM. Id. at 10. OPM argued before the
administrative judge that, by issuing an initial decision, it was in full compliance
with the Board’s Order because there was no further action for it to take. Id. at 4.
The appellant modified his arguments concerning OPM’s noncompliance by
contending that OPM’s January 13, 2023 letter was a final decision and
challenging the merits of that decision with respect to his refund request. CF,
Tab 17 at 4-15.
¶4On January 26, 2023, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement. CF, Tab 20,
Compliance Initial Decision (CID) at 1. He found that OPM issued an initial
decision and not a final decision required by the Board’s Order and, therefore,
had not fully complied with the Order’s directive. CID at 4. Nevertheless, he
found that OPM was in substantial compliance with the Order because it had
taken a necessary step toward the issuance of a final decision. CID at 4-6.
¶5The appellant has filed a petition for review. Miller v. Office of Personnel
Management, MSPB Docket No. DE-0831-14-0340-C-1, Compliance Petition for
Review (CPFR) File, Tab 3. OPM has responded. CPFR File, Tab 5. The
appellant has replied to OPM’s response. CPFR File, Tab 6.3
ANALYSIS
¶6The appellant asserts in his petition for review, as he did before the
administrative judge, that OPM’s January 2023 decision was a final decision.
CPFR File, Tab 3 at 5, 19-22; CF, Tab 17. He argues that the final decision does
not comply with the Board’s Order because it finds incorrectly that he is not owed
a refund for CSRS deposits and other payroll deductions. CPFR File, Tab 3 at 6,
24-31.2
¶7In proceedings on a petition for enforcement of a Board order, the agency
bears the burden of proving that it has complied with the order. Gay v. U.S.
Postal Service, 49 M.S.P.R. 219, 230 (1991). We agree with the administrative
judge that OPM has not shown that it has issued a final decision in this matter as
ordered by the Board. CID at 5; Remand Order, ¶ 12. OPM labeled its
January 2023 letter as an initial decision and informed the appellant of his right to
request reconsideration from OPM. CF, Tab 14 at 10. Thus, as the
administrative judge correctly found, OPM’s January 2023 letter was an initial
decision rather than a final decision. See 5 C.F.R. §§ 831.109(c), (f), .110.
¶8However, since the issuance of the Board’s initial decision in this matter,
the 30-day time limit for the appellant to file a request for reconsideration has
expired. See 5 C.F.R. § 831.109(e)(2). OPM has not shown that it has issued a
reconsideration decision under section 831.109(f)(1) or, absent a request for
reconsideration from the appellant, a final decision under section 831.109(f)(2),
which would provide the appellant the opportunity to appeal to the Board.
5 C.F.R. §§ 831.109(f), .110. The Board’s Remand Order required OPM to issue
a final decision and advise the appellant of his right to file an appeal with the
2 The appellant also argues—mistakenly—that the administrative judge engaged in ex
parte communications with OPM and requests that the ex parte communication be
stricken from the record. CPFR File, Tab 3 at 23-24. What the appellant identifies as
evidence of an ex parte communication is an excerpt from a pleading by OPM that was
properly served on the appellant and admitted into the record. Id. at 24; CID at 5; CF,
Tab 10 at 4-5. We find no evidence that any prohibited ex parte communication took
place. See 5 C.F.R. § 1201.101. 4
Board’s Denver Field Office if he disagrees with that decision. Remand Order,
¶ 12. We therefore find that OPM is in noncompliance with the Board’s Remand
Order.
¶9Accordingly, we order OPM to issue a final decision that addresses the
recalculation of the appellant’s CSRS retirement annuity and the appellant’s
refund request. In its final decision, OPM shall address the appellant’s challenges
to the merits of his refund request as set forth in his pleadings before the Board.
OPM shall also provide a clear explanation of its calculations for any amounts
previously refunded to the appellant. OPM shall advise the appellant in its new
final decision of his right to file an appeal with the Board’s Denver Field Office if
he disagrees with that decision.
ORDER
¶10We ORDER OPM to submit to the Clerk of the Board, within 30 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. OPM must
serve all parties with copies of its submission.
¶11OPM’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. DE-0831-14-
0340-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.
§ 1201.14.5
¶12The appellant may respond to OPM’s evidence of compliance within
20 days of the date of service of OPM’s submission. 5 C.F.R. § 1201.183(a)(8).
If the appellant does not respond to OPM’s evidence of compliance, the Board
may assume that he is satisfied with OPM’s actions and dismiss the petition for
enforcement.
¶13OPM 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 OPM’s
noncompliance in this case. 5 C.F.R. § 1201.183. 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).
¶14This 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 issue 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.6 | Miller_Richard_L_DE-0831-14-0340-C-1 Order.pdf | 2024-03-14 | RICHARD MILLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-14-0340-C-1, March 14, 2024 | DE-0831-14-0340-C-1 | NP |
2,097 | https://www.mspb.gov/decisions/nonprecedential/Holzberg_LarryNY-0842-22-0160-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY HOLZBERG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0842-22-0160-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
arry Holzberg , Ossining, New York, pro se.
Karla W. Yeakle and Tiffany Slade , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed his appeal for lack of jurisdiction because the Office of
Personnel Management (OPM) had not issued a final decision. On petition for
review, the appellant essentially argues that the Board should assert jurisdiction
because, according to him, OPM issued its initial decision only after the threat 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).
a hearing on the issues, which is evidence that OPM refuses to issue decisions “in
any semblance of regular and timely manner.” Petition for Review File, Tab 1
at 3. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Holzberg_LarryNY-0842-22-0160-I-1_Final_Order.pdf | 2024-03-14 | LARRY HOLZBERG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0842-22-0160-I-1, March 14, 2024 | NY-0842-22-0160-I-1 | NP |
2,098 | https://www.mspb.gov/decisions/nonprecedential/Cogan_Ronald_L_CH-3443-22-0251-I-1__2681077 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD L. COGAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-3443-22-0251-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald L. Cogan , Magnolia, Ohio, pro se.
Sherry E. Streicker , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
appears to argue, for the first time, that the agency improperly failed to provide
him with paid military leave for his periods of service with the Ohio Military
Reserve. 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 | Cogan_Ronald_L_CH-3443-22-0251-I-1__2681077 Final Order.pdf | 2024-03-14 | RONALD L. COGAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-22-0251-I-1, March 14, 2024 | CH-3443-22-0251-I-1 | NP |
2,099 | https://www.mspb.gov/decisions/nonprecedential/Alford_Wade_DE-0752-20-0208-I-2_DE-0752-21-0103-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WADE ALFORD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-20-0208-I-2
DE-0752-21-0103-I-1
DATE: March 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wade Alford , Casa Grande, Arizona, pro se.
Samuel J. Schmidt , Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removals and granted in part and denied in part the
appellant’s request for corrective action. For the reasons discussed below, we
GRANT the agency’s petition for review and DENY the appellant’s cross petition
for review. We REVERSE the administrative judge’s findings that the appellant
proved his affirmative defenses of whistleblower reprisal and race discrimination,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 as MODIFIED the administrative judge’s analysis of the appellant’s
claim of reprisal for equal employment opportunity (EEO) activity to account for
the standards announced in Pridgen v. Office of Management and Budget ,
2022 MSPB 31 ¶¶ 20-22, 30, and AFFIRM the remainder of the initial decision
without modification, still REVERSING the appellant’s removals.
BACKGROUND
The agency removed the appellant, a preference eligible City Carrier,
effective April 4, 2020, based on the charge of “violation of the [agency]
standards of conduct: unacceptable behavior,” for his role in a December 12,
2019 workplace altercation with a coworker. Alford v. U.S. Postal Service ,
MSPB Docket No. DE-0752-20-0208-I-1, Initial Appeal File (0208 IAF), Tab 9
at 78-81, 91-96, Tab 10 at 107. The appellant appealed his removal to the Board,
to which he argued, among other things, that his removal constituted race
discrimination and whistleblower reprisal. 0208 IAF, Tab 1, Tab 11, Tab 17
at 7-10. During the hearing, the administrative judge noted that due process
issues would likely result in a reversal of the removal. Alford v. U.S. Postal
Service, MSPB Docket No. DE-0752-20-0208-I-2, Appeal File (0208 I-2 AF),
Tab 29 (Hearing Transcript (HT 1) at 100-02) (colloquy of the administrative
judge). Subsequently, the agency filed evidence showing that it had rescinded the
decision notice. 0208 IAF, Tab 43 at 7. The administrative judge then dismissed
the appeal without prejudice, at the appellant’s request. 0208 IAF, Tab 49.
The agency designated a new deciding official and removed the appellant
for a second time, effective January 29, 2021, based on the original proposal
notice. Alford v. U.S. Postal Service , MSPB Docket No. DE-0752-21-0103-I-1,
Initial Appeal File (0103 IAF), Tab 9 at 9-13. The appellant filed a new appeal
based on the second removal, which the administrative judge joined with the
refiled appeal of the appellant’s first removal. 0103 IAF, Tabs 1, 14.
0208 I-2 AF, Tab 9. The administrative judge accepted for adjudication the2
appellant’s affirmative defenses raised in his first removal as defenses to his
second removal, and further accepted new defenses the appellant asserted.
0208 I-2 AF, Tab 15 at 15-16, Tab 18.
After reconvening the hearing, the administrative judge issued an initial
decision reversing the appellant’s removals and granting in part, and denying in
part, the appellant’s request for corrective action. 0208 I-2 AF, Tab 48, Initial
Decision (ID). The administrative judge first found that the appeal of the first
removal was not moot because the appellant’s affirmative defenses from that
removal remained to be adjudicated. ID at 3-4. She then determined that the first
deciding official’s consideration of the appellant’s prior misconduct as an
aggravating penalty factor without prior notice to the appellant violated the
appellant’s due process rights. ID at 4-5. Thus, she found that the first removal
must be reversed. ID at 5. Next, the administrative judge found that the agency
failed to prove its charge in the second removal action. ID at 7-17. Finally, the
administrative judge concluded that the appellant proved his whistleblower
reprisal and race discrimination affirmative defenses for both removals, but failed
to prove any other affirmative defenses. ID at 17-25. Among other remedies, the
administrative judge ordered the agency to provide the appellant with interim
relief if either party filed a petition for review. ID at 26-28.
The agency filed a petition for review in which it argues, among other
things, that the administrative judge erred in finding that the appellant established
his race discrimination and whistleblower reprisal affirmative defenses. Petition
for Review (PFR) File, Tab 1. The appellant filed a response and a cross petition
for review. PFR File, Tab 8. The agency replied to the appellant’s response to its
petition for review and responded to the appellant’s cross petition for review.
PFR File, Tabs 1213. The appellant also filed a petition for enforcement of the
administrative judge’s interim relief order, to which the agency responded. PFR
File, Tabs 2, 4, 11.3
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has substantially complied with the interim relief order.
The Board will not entertain a petition for enforcement of an interim relief
order before a final decision is issued; rather, it will treat such a petition as a
motion to dismiss the agency’s petition for review. Johnson v. Department of
Veterans Affairs , 2023 MSPB 9, ¶ 7. Accordingly, we consider the appellant’s
petition for enforcement as a request to dismiss the agency’s petition for review.
With its petition for review, the agency submitted evidence that the
appellant remained on the agency payroll as a City Carrier, that it determined that
it would be unduly disruptive to return him to duty during the pendency of the
petition for review, that he was placed on administrative leave beginning June 4,
2022, and that it was processing his back pay for the period from May 19, the
date of the initial decision, to June 4, 2022. PFR File, Tab 1 at 30-36. The
agency filed additional evidence of its compliance efforts on review. PFR File,
Tab 11 at 10-28. The agency thus substantially complied with the interim relief
order and the appellant’s motion to dismiss the petition for review is denied. See
Bryant v. Department of the Army , 2022 MSPB 1, ¶ 7 (considering an agency’s
petition for review when the agency was in the process of providing interim relief
when it filed its petition for review).
We affirm the reversals of the agency’s removal actions.
We affirm the administrative judge’s reversal of the agency’s first removal
action for due process issues and reversal of the second removal action due to the
agency’s failure to prove its charge, discerning no reason to disturb the rationales
underlying those dispositions. ID at 4-5, 7-17, 25. Although the agency objects
to having been required by the administrative judge to prove the elements of a
threat charge set forth in Metz v. Department of the Treasury , 780 F.2d 1001,
1002 (Fed. Cir. 1986), it raises the objection for the first time on review and fails
to show that its objection is based on new and material evidence not previously
available despite its due diligence. Rather, because the record shows that the4
agency waived its objection during the appeal, we decline to consider it. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Zaborowski v.
Department of the Army , 34 M.S.P.R. 299, 301-02 (1987), aff’d, 852 F.2d 1293
(Fed. Cir. 1988) (Table); 0208 I-2 AF, Tab 32 at 6-9.
The appellant failed to prove his affirmative defense of race discrimination.
Since the initial decision was issued, the Board has clarified the standards
for proving disparate treatment discrimination. Title VII of the Civil Rights Act
of 1964, as amended, requires that actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a); see Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 31;
Pridgen, 2022 MSPB 31, ¶ 20. To prove discrimination under Title VII, an
appellant must prove that prohibited discrimination was at least a motivating
factor in the agency’s action. Pridgen, 2022 MSPB 31, ¶ 21.
The appellant failed to prove that his race was a motivating factor in his
removal. The appellant, who is African American, argued that he was
discriminated against on the basis of race because the proposing official in both
of his removals and the deciding official in the first removal are Hispanic, while
his coworker, who also is Hispanic, was not disciplined. 0208 IAF, Tab 11
at 4-5.
The administrative judge noted the races of the agency officials involved in
removing the appellant . ID at 21-22. She then determined that, because the
record was silent regarding the difference in treatment between the appellant and
his coworker, whom the deciding official in the second removal action conceded
at the hearing had used abusive language during the altercation, she “must infer”
that the agency was motivated by racial discrimination in its decision to remove
the appellant but not discipline the coworker. ID at 22. The administrative judge
then found that the proposing and deciding officials ignored certain evidence
because they were “determined to find the appellant solely responsible” for the
altercation, and that because of the lack of credible evidence to support both5
deciding officials’ decisions, the appellant established his race discrimination
affirmative defense. ID at 22-23.
The proposing official and both deciding officials testified that, based on
their reviews of the agency’s evidence, they viewed the appellant as the instigator
of, and aggressor in, the altercation, to the point of initiating physical contact.
HT 1 at 10-11, 19-24 (testimony of the first deciding official); 0208 I-2 AF,
Tab 27, Hearing Transcript 2 (HT 2) at 24-26 (testimony of the second deciding
official), 78-79 (testimony of the proposing official). The witness statements in
the agency investigation show no reason to doubt that those officials’
understandings of the altercation were genuine.2 0208 IAF, Tab 10 at 98-105.
For employees to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, comparators
must have engaged in conduct similar to the appellant’s without differentiating or
mitigating circumstances. Hooper v. Department of Interior, 120 M.S.P.R. 658,
¶ 6 (2014). Here, the evidence available to the agency at the time of its decisions
showed differentiating circumstances between the conduct of the appellant and
his coworker. Thus, the two were not similarly situated. See Gregory v.
Department of the Army , 114 M.S.P.R. 607, ¶¶ 43-44 (2010) (finding that a
coworker was not similarly situated to an appellant because the coworker’s
misconduct was not sufficiently similar to the appellant’s). The appellant
presented no additional evidence, under the various methods of proof that the
Board set forth in Pridgen, to show that race was at least a motivating factor in
2 The administrative judge found that the proposing and deciding officials, being
“determined to find the appellant solely responsible” for the altercation, ignored written
statements of three witnesses purportedly indicating that they did not feel threatened or
fear working at the appellant’s post office. ID at 22-23. However, only one of those
three witnesses wrote in a statement that she was not afraid to work in the appellant’s
post office. 0208 IAF, Tab 10 at 100, 104-105. Another one of those witnesses wrote
that the appellant has anger issues and has had prior confrontations with several
employees. Id. at 104. On the other hand, more than one witness wrote that the
appellant’s actions aroused feelings of fear. Id. at 98, 103. The administrative judge’s
finding that the agency ignored evidence and her depiction of the purportedly ignored
evidence were thus erroneous. 6
the removal. Thus, although we agree with the administrative judge that the
agency failed to prove the charge, we also find that the appellant failed to
establish his race discrimination affirmative defense. Accordingly, we reverse
the administrative judge’s finding of race discrimination.
We modify the administrative judge’s analysis of the appellant’s EEO reprisal
affirmative defense to account for the standard articulated in Pridgen .
We also modify the administrative judge’s analysis of the appellant’s EEO
reprisal affirmative defense, to which she applied the test announced in Warren v.
Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) in finding that the
appellant failed to show that the deciding officials were “in anyway motivated to
retaliate against the appellant.” ID at 23. In Pridgen, 2022 MSPB 31, ¶ 30, we
stated that claims of retaliation for opposing discrimination in violation of
Title VII are analyzed under the same framework used for Title VII
discrimination claims discussed above. The application of the standards
articulated in Pridgen would not, however, require disturbing the administrative
judge’s conclusion that the appellant failed to prove his EEO reprisal affirmative
defense.
The appellant failed to prove his affirmative defense of whistleblower reprisal.
To prove whistleblower reprisal in a case involving an employee of the
U.S. Postal Service, an appellant must show: (1) a protected disclosure was
made; (2) the accused official knew of the disclosure; (3) the adverse action under
review could have been retaliation under the circumstances; and (4) there was a
genuine nexus between the alleged retaliation and the adverse action. See
Warren, 804 F.2d at 656-58; Mack v. U.S. Postal Service , 48 M.S.P.R. 617,
621-22 (1991). To establish a genuine nexus, an appellant must show that the
adverse action was taken because of his protected activity. Mattison v.
Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016). This requires the
Board to weigh the severity of the appellant’s alleged misconduct against the
intensity of the agency’s motive to retaliate. Id.; see Warren, 804 F.2d at 658.7
In concluding that the appellant met his burden under the Warren test, the
administrative judge found that there was direct evidence that the appellant’s
2011 Office of the Special Counsel (OSC) complaint played an “essential role” in
both decisions to remove the appellant. ID at 19. According to the
administrative judge, this evidence consisted of testimony in which the deciding
officials agreed with a note the proposing official wrote in support of the
proposed removal purportedly stating that the appellant’s statements in the
investigation of the altercation were less credible because he had made “false or
exaggerated” claims in his 2011 OSC complaint. ID at 19-20.
Upon review, we find that the administrative judge misinterpreted this
evidence. Looking at the text of the proposing official’s note, the reference to
“false or exaggerated” statements does not refer to the appellant’s allegations in
his OSC complaint, but rather to his allegation that management and his coworker
conspired to remove him due to past issues, possibly including his EEO activity,
OSC complaint, and union activity. 0208 IAF, Tab 9 at 103-04. Consistent with
this interpretation of the note, the proposing official testified that he did not know
anything about the appellant’s accusations in his 2011 OSC complaint, which was
“prior to [him].” HT 2 at 105 (testimony of the proposing official). Although
both deciding officials testified that they interpreted the “false or exaggerated”
language to refer to the appellant’s protected activity, namely his 2011 OSC
complaint, they also testified that they did not consider the proposing official’s
statements regarding the appellant’s credibility in deciding to remove the
appellant. HT 1 at 35-36, 92, 97 (testimony of the first deciding official); HT 2
at 48, 69 (testimony of the second deciding official). Nothing in the record
provides any basis to doubt the veracity of this testimony.
Returning to the Warren test, the appellant has not shown that he was
removed because of his OSC complaint—which was made over 8 years prior to
his proposed removal—precluding a finding of genuine nexus. See Carter v.
Small Business Administration , 61 M.S.P.R. 656, 668-69 (1994) (finding that the8
passage of 10 years between an appellant’s EEO complaint and her proposed
removal supported a lack of genuine nexus); 0208 IAF, Tab 3 at 21, Tab 9 at 91.
Even if the proposing or deciding officials could be said to have had some
retaliatory motive due to any of the appellant’s protected activity, including the
2011 OSC complaint, there is no reason to believe that it outweighed the severity
of the appellant’s misconduct as depicted in the agency’s evidence as discussed,
or that the appellant was removed because of that protected activity. See Pyun v.
Social Security Administration , 111 M.S.P.R. 249, ¶ 14 (2009) (finding that there
was no genuine nexus when the inadequacy of the appellant’s performance
substantially outweighed the intensity of the agency’s motive to retaliate, of
which there was little evidence). We discern no evidence which would show that
the appellant otherwise established his whistleblower reprisal affirmative defense,
and we thus reverse the administrative judge’s finding that the appellant
established that defense.3
3 We decline to consider the agency’s claim in its reply to the appellant’s response to its
petition for review that the administrative judge erred by not dismissing the case on
grounds of adjudicatory efficiency because the agency failed to raise the claim in its
petition for review. Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 8 n.4;
5 C.F.R. § 1201.114(a)(4); PFR File, Tab 12 at 12. In any event, because the
appellant’s claims adjudicated in his appeal under the Uniformed Services Employment
and Reemployment Rights Act differed from those in the present appeal, dismissal on
adjudicatory efficiency grounds would be inappropriate. Alford v. U.S. Postal Service ,
MSPB Docket No. DE-4324-20-0132-I-1, Initial Decision (Apr. 16, 2020). Next,
regarding the appellant’s claim in his cross petition for review that the administrative
judge erred in denying an exhibit he filed during the appeal and his motions to file
evidence and argument after the record closed, the administrative judge had wide
discretion to exclude irrelevant, immaterial, or unduly repetitious evidence. We find
that she did not abuse this discretion in excluding the appellant’s hearing exhibit, which
was not material to the issues in this case. Dieter v. Department of Veterans Affairs ,
2022 MSPB 32, ¶ 23; PFR File, Tab 8 at 28-29; 0208 I -2 AF, Tab 16 at 7-34. Further,
the administrative judge correctly denied the appellant’s motions to admit new evidence
or argument because the appellant failed to show that such new evidence or argument
was not readily available before the record closed or that it was in rebuttal to new
evidence or argument submitted by the agency just before the close of the record.
McClenning v. Department of the Army , 2022 MSPB 3, ¶ 19; 5 C.F.R. § 1201.59(a)-(c);
0208 I-2 AF, Tabs 43-47.9
ORDER
We ORDER the agency to cancel both removal actions and restore the
appellant to his position effective April 4, 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.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service Regulations, as appropriate, no later than 60 calendar days after
the date of this decision. We ORDER the appellant to cooperate in good faith in
the agency’s efforts to calculate the amount of back pay, interest, and benefits
due, and to provide all necessary information the agency requests to help it carry
out the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision10
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.
This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15
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. | Alford_Wade_DE-0752-20-0208-I-2_DE-0752-21-0103-I-1_Final_Order.pdf | 2024-03-14 | WADE ALFORD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-20-0208-I-2, March 14, 2024 | DE-0752-20-0208-I-2 | NP |
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