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2,100 | https://www.mspb.gov/decisions/nonprecedential/Baker_Timothy_E_SF-0752-21-0024-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY E. BAKER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBERS
SF-0752-20-0661-I-2
SF-0752-21-0024-I-1
DATE: MARCH 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy E. Baker , Bremerton, Washington, pro se.
Mona Williams , Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has a filed petition for review of the initial decisions, which
affirmed his indefinite suspension and his removal . We JOIN these appeals for
adjudication under 5 C.F.R. § 1201.36(a)(2), and DISMISS the petition for review
as untimely filed without good cause shown, 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was a WG-02 Machinist whom the agency indefinitely
suspended, effective July 16, 2020, based on the suspension of his security
clearance. Baker v. Department of the Navy , MSPB Docket No. SF-0752-20-
0661-I-1, Initial Appeal File (0661 IAF), Tab 6 at 11-19. The agency removed
the appellant effective September 15, 2020, based on the alleged misconduct
underlying his security clearance suspension. Baker v. Department of the Navy ,
MSPB Docket No. SF-0752-21-0024-I-1, Initial Appeal File (0024 IAF), Tab 4
at 12, Tab 5 at 53-61.
The appellant appealed both adverse actions to the Board, and on
February 10, 2021, the administrative judge issued two separate initial decisions
affirming the agency’s actions. 0661 IAF, Tab 1; Baker v. Department of the
Navy, MSPB Docket No. SF-0752-20-0661-I-2, Appeal File (I-2 AF), Tab 11,
Initial Decision (0661 ID); 0024 IAF, Tab 15, Initial Decision (0024 ID). Each
initial decision informed the appellant that it would become final on March 17,
2021, and that date would be the deadline for filing a petition for review with the
Board, unless the appellant received the initial decision more than 5 days after it
was issued, in which case the filing deadline would be 30 days from the date of
receipt. 0661 ID at 7; 0024 ID at 9-10. The initial decisions were served on the
appellant by U.S. mail the same day. I-2 AF, Tab 12; 0024 IAF, Tab 16.
On March 22, 2021, the appellant filed a petition for review, disputing the
underlying allegations of misconduct in both appeals. Baker v. Department of the
Navy, MSPB Docket No. SF-0752-20-0661-I-2, Petition for Review File
(0661 PFR File), Tab 1; Baker v. Department of the Navy , MSPB Docket No. SF-
0752-21-0024-I-1, Petition for Review File (0024 PFR File), Tab 1. The petition
did not address the issue of timeliness.
The appellant’s petition for review contained the docket numbers of both
appeals. Therefore, the Office of the Clerk of the Board docketed this filing as
two separate petitions—one in each appeal. The Office of the Clerk of the Board2
then issued acknowledgment letters in each appeal informing the appellant that
his petitions for review appeared to be untimely because they were filed after
March 17, 2021. 0661 PFR File, Tab 2 at 1-2; 0024 PFR File, Tab 2 at 1-2. The
acknowledgment letters informed the appellant that, under the Board’s
regulations, a petition for review that appears to be untimely must be
accompanied by a motion to either accept the petition as timely or to waive the
deadline for good cause shown. 0661 PFR File, Tab 2 at 2; 0024 PFR File, Tab 2
at 2. The appellant was further informed that his motion must be supported by an
affidavit or sworn statement made under the penalty of perjury. 0661 PFR File,
Tab 2 at 2; 0024 PFR File, Tab 2 at 2. To assist the appellant, the Office of the
Clerk of the Board enclosed with each acknowledgment letter a template motion
for him to use. 0661 PFR File, Tab 2 at 2, 7-8; 0024 PFR File, Tab 2 at 2, 7-8.
The Office of the Clerk of the Board further informed the appellant that his
motion was due by March 30, 2021, and that if he failed to file the required
motion, his petition for review might be dismissed as untimely. 0661 PFR File,
Tab 2 at 2; 0024 PFR File, Tab 2 at 2. The appellant has not responded to the
acknowledgment letters, and the agency has not responded to the petition for
review.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the initial decision
is issued or, if the appellant shows that he received the initial decision more than
5 days after it was issued, within 30 days after the date of receipt. Williams v.
Office of Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R.
§ 1201.114(e). For the following reasons, we find that the appellant’s petition for
review was untimely filed. The initial decisions’ certificates of service reflect
that they were mailed to the appellant on February 10, 2021, at his address of
record. I-2 AF, Tab 12; 0024 IAF, Tab 16. Board precedent and regulations
recognize that documents placed in the mail are presumed to be received in3
5 days. Lagreca v. U.S. Postal Service , 114 M.S.P.R. 162, ¶ 6 (2010); see
5 C.F.R. § 1201.4(l). The appellant has not asserted that he failed to receive the
initial decisions in due course, and so we find that the deadline for filing the
petition for review was March 17, 2021—thirty-five days after the initial
decisions were issued. The appellant filed his petition for review by mail,
postmarked March 22, 2021. 0661 PFR File, Tab 1 at 5; 0024 PFR File, Tab 1
at 5. The appellant does not allege that he placed the petition in the stream of
mail prior to that date, and so we find that March 22, 2021 was the date of filing.
See 5 C.F.R. § 1201.4(l). Thus, the petition for review was untimely by 5 days.
Because the petition for review was untimely, we proceed to the issue of
whether there is good cause to waive the deadline under 5 C.F.R. § 1201.114(g).
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of 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). To establish good cause for the untimely
filing of a petition for review, a party must show that he exercised due diligence
or ordinary prudence under the particular circumstances of the case. Morton v.
Department of the Navy , 53 M.S.P.R. 165, 167 (1992), aff’d per curiam , 991 F.2d
810 (Fed. Cir. 1993) (Table).
In this case, the appellant is proceeding pro se, and the 5-day filing delay
was not particularly lengthy. See Schuringa v. Department of the Treasury ,
106 M.S.P.R. 1, ¶¶ 2, 9 (2007) (finding that a filing delay of 4 days was
minimal). Nevertheless, absent good cause shown, the Board will not excuse an
untimely petition for review no matter how minimal the delay. Bond v.
Department of the Army , 51 M.S.P.R. 322, 324 (1991); e.g., Smith v. Department4
of the Army, 105 M.S.P.R. 433, ¶ 6 (2007) (declining to excuse the appellant’s
1-day delay in filing his petition for review when the appellant failed to explain
the delay). The appellant’s failure to submit a motion explaining the
circumstances of his untimely filing, as directed by the Office of the Clerk of the
Board, and required under 5 C.F.R. § 1201.114(g), leaves us with no basis to
conclude that he acted with due diligence or ordinary prudence such that his
untimely filing might be excused. See De La Cruz Espan v. Office of Personnel
Management, 95 M.S.P.R. 403, ¶¶ 6-7 (2004). Nor is there any information in the
petition for review or any of the other documents in the record that sheds any
light on the circumstances of the appellant’s untimely filing.
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 decisions remain the final decisions of the
Board regarding the indefinite suspension and removal appeals.
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.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 7
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Baker_Timothy_E_SF-0752-21-0024-I-1__Final_Order.pdf | 2024-03-13 | TIMOTHY E. BAKER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-21-0024-I-1, MARCH 13, 2024 | SF-0752-21-0024-I-1 | NP |
2,101 | https://www.mspb.gov/decisions/nonprecedential/Abraham_Jeffrey_R_DC-1221-21-0642-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY R. ABRAHAM,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-21-0642-W-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
effrey R. Abraham , Mercer, Pennsylvania, pro se.
Ownie Eng and Susan Reutter , 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 individual right of action (IRA) appeal for lack of jurisdiction. On
review, the appellant argues that his barments may be overturned if found to be
arbitrary or capricious, the agency violated a requirement that he be notified of
the reasons for his barments, and the agency was allowed to control the outcome
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
of the appeal by concealing or controlling information based on assertions of
classification. Petition for Review (PFR) File, Tab 1 at 7, 9.2 The appellant also
filed a motion for leave to submit new evidence, which he describes as a 2018
agency report of investigation (ROI) into his whistleblower reprisal complaint, an
agency letter to his Senator’s office stating that the ROI could not be released,
and a letter from his employing agency “exonerating” him of the agency’s
classified information spillage allegation.3 PFR File, Tab 7. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
2 In support, he cites language from an Air Force legal reference guide, which itself is
not a policy statement, rule, regulation, or other legal authority, The Military
Commander and the Law, 193 (The Judge Advocate General’s School, U.S. Air Force,
17th ed. 2021), that appears to have been taken from the following language in
Cafeteria and Restaurant Workers Union v. McElroy , 367 U.S. 886, 898 (1961): “[w]e
may assume that [the petitioner] could not constitutionally have been excluded from the
[military installation] if the announced grounds for her exclusion had been patently
arbitrary or discriminatory—that she could not have been kept out because she was a
Democrat or a Methodist.” Because the grounds for the appellant’s barment orders
were not patently arbitrary or discriminatory, the Board need not address the
constitutional limits of the Mount Weather Executive Director’s barment authority.
Regarding the appellant’s assertion that the agency violated a requirement that he be
notified of the reasons for his barments, t he Air Force publication is not in itself, nor
does it cite, a legal authority for such a requirement. The Military Commander and the
Law, 194. In any event, even assuming that such a notice requirement existed, the
agency sent both barment decisions, with supporting justifications, to the appellant’s
employing agency, Initial Appeal File (IAF), Tab 16 at 87-88, Tab 19 at 42-44, and the
pleadings demonstrate that the appellant was informed of the agency’s reasons for his
barments. IAF Tab 16 at 63, Tab 19 at 38-40. Finally, the appellant’s assertion that the
agency was allowed to control the outcome of the appeal by concealing or controlling
information based on assertions of classification is unpersuasive. The administrative
judge, to whom this appeal was reassigned because he possessed the requisite security
clearance, IAF, Tab 14 at 1, was prepared to review the agency’s classified documents,
but determined that such was not necessary to adjudicate this appeal at the jurisdictional
stage. IAF, Tab 25, Initial Decision at 2 n.1.
3 Because the appellant’s proffer as to what this new evidence establishes would, even if
true, fail to cure the Board’s jurisdictional defect, we deny the motion.
3
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s finding that the
appellant nonfrivolously alleged that his barments from the agency’s Mount
Weather facility constituted “personnel actions” under 5 U.S.C. § 2302(a)(2)(A),
we AFFIRM the initial decision.4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
4 The administrative judge correctly found that the Board lacked jurisdiction over the
appellant’s IRA appeal because it could not review the merits of his barments from
Mount Weather. However, to the extent the administrative judge determined that those
barments constituted “personnel actions,” any such finding was incorrect under the
circumstances. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 & n.9
(2016) (upholding the administrative judge’s finding that the denial of an appellant’s
access to restricted areas of a military installation and classified documents did not
constitute personnel actions).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | Abraham_Jeffrey_R_DC-1221-21-0642-W-1_Final_Order.pdf | 2024-03-13 | JEFFREY R. ABRAHAM v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-21-0642-W-1, March 13, 2024 | DC-1221-21-0642-W-1 | NP |
2,102 | https://www.mspb.gov/decisions/nonprecedential/Arnold_ThaddeusAT-315H-22-0464-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THADDEUS ARNOLD,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-315H-22-0464-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thaddeus Arnold , Centerville, Georgia, pro se.
Kristi Marie Winger Minor , Esquire, Warner Robins, 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 for lack of jurisdiction his appeal of his termination during his
probationary period. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant asserts that he would like a hearing on the matter and
seemingly argues the merits of the agency’s removal action. Petition for Review
(PFR) File, Tab 1 at 3-4. Because the appellant failed to make a nonfrivolous
allegation of Board jurisdiction, however, he is not entitled to a hearing.
See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (explaining that,
to be entitled to a jurisdictional hearing, an appellant must make a nonfrivolous
allegation that the Board has jurisdiction over his appeal). Moreover, because the
Board lacks jurisdiction over the matter, we cannot consider the appellant’s
merit-based arguments. See Schmittling v. Department of the Army , 219 F.3d
1332, 1336-37 (Fed. Cir. 2000) (explaining that the Board must first resolve the
threshold issue of jurisdiction before proceeding to the merits of an appeal).
The appellant avers that unspecified “paperwork” was sent to an incorrect
address, causing him to receive it late. PFR File, Tab 1 at 3. This vague
assertion does not warrant a different outcome. See 5 C.F.R. § 1201.114(b)
(explaining that a petition for review must be supported by specific references to
the record). To the extent the appellant is arguing that he did not receive Board
filings, his argument is unavailing. Indeed, as a registered e -filer, Initial Appeal
File (IAF), Tab 1 at 2, the appellant consented to accept all documents issued by2
the Board in electronic form, i.e., via email, see 5 C.F.R. § 1201.14(e)(1) (2022).
He was therefore required by regulation to monitor his case at the Repository at
e-Appeal Online to ensure that he received all case-related documents.
See 5 C.F.R. § 1201.14(j)(3) (2022).
Last, the appellant asserts that he was unable to “submit [his] appeal on
employment” due to an unspecified illness. PFR File, Tab 1 at 3. The nature of
the appellant’s argument is again unclear. See 5 C.F.R. § 1201.114(b). Indeed,
the appellant filed his Board appeal shortly after the agency effected his removal;
he also timely filed his petition for review. IAF, Tab 1, Tab 5 at 9-10; PFR File,
Tab 1. To the extent the appellant argues that an unspecified illness precluded
him from making nonfrivolous allegations regarding jurisdiction before the
administrative judge, he could have made such allegations on review; however,
he makes no assertions discernably relevant to the jurisdictional issue.
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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.4
The Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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.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 | Arnold_ThaddeusAT-315H-22-0464-I-1 Final Order.pdf | 2024-03-13 | THADDEUS ARNOLD v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-315H-22-0464-I-1, March 13, 2024 | AT-315H-22-0464-I-1 | NP |
2,103 | https://www.mspb.gov/decisions/nonprecedential/Dixon-Johnson_CarlaDA-0842-22-0224-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLA DIXON-JOHNSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0842-22-0224-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carla Dixon-Johnson , Houston, Texas, pro se.
Alison Pastor , 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 affirmed the reconsideration decision of the Office of Personnel
Management (OPM) finding that she is not eligible to receive a Federal
Employees’ Retirement System (FERS) annuity supplement and that OPM
correctly calculated her average pay for purposes of her annuity computation.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 reargues that she is entitled to a FERS
annuity supplement based on her interpretation of the OPM Civil Service
Retirement System and FERS Handbook and asserts that the administrative judge
abused her discretion by failing to credit the appellant’s pleadings. 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.
Under 5 U.S.C. § 8421(a), only an individual entitled to an immediate
retirement annuity under section 8412(a), (b), (d), (e), and (f), or an early
retirement annuity under section 8414(a), (b), and (c), is entitled to a FERS
annuity supplement. As an annuitant under 5 U.S.C. § 8412(g), the appellant
does not fall within any of the subsections of 5 U.S.C. § 8421(a) and so the
administrative judge correctly found that she is not entitled to a FERS annuity
supplement. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 7 | Dixon-Johnson_CarlaDA-0842-22-0224-I-1 Final Order.pdf | 2024-03-13 | null | DA-0842-22-0224-I-1 | NP |
2,104 | https://www.mspb.gov/decisions/nonprecedential/Brannon_Kevin_S_AT-0752-22-0523-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN BRANNON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-22-0523-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brandon Keith Hayes , Warner Robins, Georgia, for the appellant.
Gregory Lloyd , Esquire, Robins Air Force Base, 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 his appeal of an alleged involuntary resignation for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of establishing by preponderant
evidence that his resignation was involuntary and therefore tantamount to a
forced removal. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110,
¶ 5 (2010). To overcome the presumption that resignation is voluntary, the
employee must show that it was the result of the agency’s misinformation or
deception or that he was coerced by the agency. Id. As is the case with all
alleged constructive actions, the appellant must demonstrate that (1) he lacked a
meaningful choice in the matter, and (2) it was the agency’s wrongful actions that
deprived him of that choice. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶ 8 (2013). To obtain a hearing on the issue of jurisdiction over an alleged
constructive adverse action, the appellant must first make nonfrivolous
allegations that, if proven, would establish Board jurisdiction. See Garcia v.
Department of Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir. 2006).
On review, the appellant argues that his resignation was the result of
agency misinformation concerning the masking requirement.2 However,
assuming the appellant is correct that, contrary to the information provided by his
2 We assume without deciding that the appellant’s new argument is based on evidence
not available to him before the close of the record below. 2
supervisors, masking was not mandatory under the heat conditions, he has not
explained how the alleged misinformation deprived him of a meaningful choice
other than to resign. To the contrary, it is evident from the undisputed record that
the appellant had other options available to him, such as wearing a mask under
protest or accepting the risk that the agency would propose disciplinary action for
his decision to remain at home without leave. The fact an employee is faced with
the unpleasant choice of either resigning or opposing a potential removal action
does not rebut the presumed voluntariness of his or her ultimate choice of
resignation. Schultz v. U.S. Navy , 810 F.2d 1133, 1136 -37 (Fed. Cir. 1987). We
further note that the appellant’s citation to 5 C.F.R. § 715.202(b) is inapposite, as
he did not attempt to withdraw his resignation before its effective date. As the
appellant has not made a nonfrivolous allegation that his resignation was
involuntary, we discern no error in the administrative judge’s decision to dismiss
the appeal on the written record.
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.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Brannon_Kevin_S_AT-0752-22-0523-I-1__Final_Order.pdf | 2024-03-13 | KEVIN BRANNON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-22-0523-I-1, March 13, 2024 | AT-0752-22-0523-I-1 | NP |
2,105 | https://www.mspb.gov/decisions/nonprecedential/Jackson_DaniusAT-3330-18-0472-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIUS JACKSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3330-18-0472-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danius Jackson , Georgetown, Kentucky, pro se.
Tsopei Robinson , West Palm Beach, Florida, 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 under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed an appeal alleging that the agency violated his veterans’
preference rights under VEOA in connection with his application for a
position as a Police Officer, GS-0083-6, under vacancy announcement number
CBAJ-18-10118605-MP, which recruited for vacancies in Clarksville,
Murfreesboro, and Nashville, Tennessee. Initial Appeal File (IAF), Tab 1. The
administrative judge issued a jurisdictional order explaining the applicable
burdens under VEOA and ordered the appellant to file evidence and argument
establishing the Board’s jurisdiction. IAF, Tab 3 at 1-7. The administrative
judge also informed the appellant that, if the appellant established Board
jurisdiction, he would adjudicate the appeal after holding a hearing or after
allowing for further development of the written record. Id. at 7. The appellant
did not respond to the jurisdictional order.
Without holding a hearing, the administrative judge issued a decision on
the merits, denying the appellant’s request for corrective action. IAF, Tab 6,
Initial Decision (ID). The administrative judge found that, although the appellant
established Board jurisdiction, he was not entitled to corrective action under2
VEOA. ID at 4-7. In particular, the administrative judge found that the record
reflected that the agency considered the appellant’s application and provided him
an opportunity to compete for the position. ID at 6. The appellant has filed a
petition for review, which the agency has opposed. Petition for Review (PFR)
File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
When an agency accepts applications from individuals outside its own
workforce under merit promotion procedures, it must allow “preference eligibles
and veterans who have been separated from the armed forces under honorable
conditions after 3 years or more of active service” the opportunity to compete.
5 U.S.C. § 3304(f)(1). Here, the agency accepted applications from outside
its workforce under merit promotion procedures, and thus, the provisions of
5 U.S.C. § 3304(f)(1) apply. IAF, Tab 5 at 8; s ee Washburn v. Department of the
Air Force, 119 M.S.P.R. 265, ¶¶ 2-5, 11 (2013).
The record reflects that the agency found the appellant qualified for the
position and referred him to the selecting official, but did not interview him or
select him for the position.2 IAF, Tab 5 at 6, 16, 55-57, 63, 67, 71. Thus, as the
administrative judge correctly found, the agency allowed the appellant to compete
for the position on the same basis as all of the other candidates. ID at 6.
The statute, 5 U.S.C. § 3304(f)(1), requires nothing more. See, e.g.,
Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶ 11 (2014)
(stating that, in a right to compete VEOA appeal under 5 U.S.C. § 3304(f)(1), the
Board does not determine whether a preference eligible is qualified for a
particular position of Federal employment or whether he should have been
selected for the position in question, but rather only assesses whether the
2 Although, as the administrative judge found, it appears that the agency did not make a
selection for the vacancy in Clarksville, Tennessee, IAF, Tab 5 at 62-65, the Board has
held that an agency’s decision not to fill a particular vacancy does not violate a
veteran’s preference rights, see Scharein v. Department of the Army , 91 M.S.P.R. 329,
¶ 10 (2002), aff’d, No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).3
preference eligible was permitted to compete for the position on the same basis as
other candidates), aff’d, 818 F.3d 1361 (Fed. Cir. 2016)
We will consider the appellant’s evidence and argument submitted for the first
time on review because the administrative judge failed to issue a close of
record order.
Because the administrative judge found Board jurisdiction under VEOA
and declined to hold a hearing, ID at 1, 4-5, he was responsible for notifying the
parties that there would be no hearing, for setting a date on which the
record would close, and for affording the parties the opportunity to submit
evidence regarding the merits of the appeal before the record closed,
Jarrard v. Department of Justice , 113 M.S.P.R. 502, ¶ 11 (2010). Instead, the
administrative judge closed the record in this VEOA appeal without affording the
parties proper warning or an opportunity to make final submissions. Thus, we
find it appropriate to consider the appellant’s arguments and evidence submitted
for the first time on review. See Jarrard, 113 M.S.P.R. 502, ¶ 14 n.2.
Nonetheless, we find that remand is unnecessary because there is no genuine
dispute of material fact, and that the agency must prevail as a matter of law. See
Waters-Lindo v. Department of Defense , 112 M.S.P.R. 1, ¶ 5 (2009) (stating that
the Board may decide the merits of a VEOA appeal without a hearing where there
is no genuine dispute of material fact and one party must prevail as a matter of
law).
On review, the appellant appears to dispute the agency’s contention below
that it did not find him to be eligible for reinstatement because he failed to submit
a standard form 50 for his prior service at the Veterans Administration. IAF,
Tab 5 at 5; PFR File, Tab 1 at 5. Such an argument, however, is unrelated to the
appellant’s status as a veteran and does not establish a violation of the appellant’s
veterans’ preference rights under VEOA, which, as discussed, only required the
agency to afford the appellant an opportunity to compete for the position.
Moreover, the Board otherwise lacks jurisdiction over an agency’s decision not to4
reinstate an employee pursuant to 5 C.F.R. § 315.401. See Hicks v. Department
of the Navy, 33 M.S.P.R. 511, 513 (1987).
On review, the appellant also disputes the agency’s decision not to hire him
and argues that he is qualified as evidenced by his receipt of several job offers for
police officer positions with other Federal agencies. PFR File, Tab 1 at 5-6,
11-23. However, as discussed above, in a right to compete VEOA appeal, the
Board does not determine whether a preference eligible is qualified for a
particular position or whether he should have been selected for the position.
Miller, 121 M.S.P.R. 88, ¶ 11. The appellant also alleges that the agency’s
decision not to select him constitutes reprisal for a prior equal employment
opportunity (EEO) complaint that he filed against the agency as well as race
discrimination.3 PFR File, Tab 1 at 5, 9-10. In support of this argument, he
submits documents relating to his EEO complaint. Id. at 24-43. However, the
Board has no authority to review claims of reprisal or discrimination based on
race in VEOA appeals. See Slater v. U.S. Postal Service , 112 M.S.P.R. 28, ¶ 8
(2009); Ruffin v. Department of the Treasury , 89 M.S.P.R. 396, ¶ 12 (2001).
Finally, to the extent the appellant argues that the agency
violated his veterans’ preference rights in connection with vacancy announcement
CBAJ-10266706-18-MP, PFR File, Tab 1 at 6-8, such a claim was the subject of
the appellant’s separate appeal docketed as Jackson v. Department of Veterans
Affairs, MSPB Docket No. AT-3330-19-0144-I-1, and the Board issued a separate
decision regarding the appellant’s petition for review in that matter .
3 The appellant also states that African American applicants who were also disabled
veterans were rejected without an explanation. IAF, Tab 1 at 5; PFR File, Tab 1 at 9. It
is not clear whether the appellant is attempting to raise a claim that the agency’s
decision not to hire him constituted discrimination based on his uniformed service in
violation of the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA). However, there is no time limit for filing a USERRA appeal with the
Board. Thus, if the appellant wishes to pursue such a claim, he must file a new appeal
with the Board’s Atlanta Regional Office.5
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 | Jackson_DaniusAT-3330-18-0472-I-1 Final Order.pdf | 2024-03-13 | DANIUS JACKSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3330-18-0472-I-1, March 13, 2024 | AT-3330-18-0472-I-1 | NP |
2,106 | https://www.mspb.gov/decisions/nonprecedential/Hudson_KeishaPH-0752-18-0261-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEISHA HUDSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-0752-18-0261-I-1
DATE: March 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Faye R. Cohen , Esquire, Philadelphia, Pennsylvania, for the appellant.
Joseph Rieu , Esquire, Arlington, Virginia, for the agency.
Julie L. Kitze , Esquire, Philadelphia, Pennsylvania, 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
sustained her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant was formerly employed as a Transportation Security
Specialist Explosives Detection Canine Handler, SV-1801, at Philadelphia
International Airport. Initial Appeal File (IAF), Tab 4, Subtab 4a. By notice
dated February 27, 2018, the agency proposed to remove the appellant on charges
of lack of candor (three specifications) and unprofessional conduct. Id.,
Subtab 4d. Under the lack of candor charge, the agency alleged that on
November 1, 2, and 8, 2017, the appellant told agency officials that she had been
interviewed by unnamed individuals and that she subsequently admitted in a
November 22, 2017 written statement that no such interviews occurred. Id.
at 2-3. The charge of unprofessional conduct was based on an October 27, 2017
text exchange between the appellant and a coworker, in which, according to the
agency, the two conspired to submit a false incident report and workers’
compensation claim.2 Id. at 4-5.
The appellant provided a written response, in which she argued that the text
message conversation with her coworker also included protected equal
employment opportunity (EEO) activity, specifically, her efforts to assist her
coworker in pursuing a potential hostile work environment claim, and that her
removal would constitute unlawful retaliation for that protected activity. Id.,
Subtab 4c at 5. By letter dated March 23, 2018, the deciding official notified the
appellant of his decision to remove her, effective that same day. Id., Subtab 4b.
2 The agency cited three messages in particular. In the first, the appellant wrote, “Hang
on till Monday. You can have a breakdown and be covered under workers comp.” IAF,
Tab 4, Subtab 4d at 65. In the second, the appellant wrote, “Yup, that’s why I want you
to wait until Monday. I will you [sic] find you in a bathroom crying, call you an
ambulance and I’ll write the incident report dictating what I saw/heard. You will be on
the payroll for the rest of your life.” Id. In the following message, the appellant wrote,
“Once I dial 911 it can’t be reversed or we will both be unemployed.” Id. at 66. 2
The appellant filed a timely Board appeal, in which she explicitly raised an
affirmative defense of retaliation for protected EEO activity. IAF, Tab 1 at 4. In
his summary of the prehearing conference, the administrative judge noted that the
appellant’s retaliation claim was among the issues to be adjudicated, IAF, Tab 12
at 2, and the appellant again asserted the defense at the hearing, Hearing Compact
Disc (HCD) (closing statement by the appellant’s representative). Following the
hearing, the administrative judge issued an initial decision affirming the removal
action. IAF, Tab 19, Initial Decision (ID). In reaching that result, the
administrative judge sustained the charges, found a nexus between the appellant’s
conduct and the efficiency of the service, and further found that the removal
penalty was within the bounds of reasonableness. ID at 3-7. However, the initial
decision did not address the appellant’s retaliation claim.
On petition for review, the appellant objects to the initial decision on the
following grounds: (1) the administrative judge failed to address her affirmative
defense of retaliation for protected EEO activity; (2) the administrative judge did
not make a credibility determination concerning her hearing testimony; and
(3) the administrative judge erred in his Douglas factors3 analysis by failing to
address the appellant’s claim of disparate penalties. Petition for Review (PFR)
File, Tab 1. The agency has responded to the appellant’s petition. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The charge of unprofessional conduct requires proof that the appellant intended to
defraud the agency, and the administrative judge must make an explicit credibility
determination concerning the appellant’s testimony that she did not so intend.
When an agency uses general charging language such as “unprofessional
conduct,” the Board must look to the specification to determine what conduct the
agency is relying on as the basis for its proposed disciplinary action. See
3 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 action cases. 3
Lachance v. Merit Systems Protection Board , 147 F.3d 1367, 1371 (Fed. Cir.
1998) (interpreting charge of “unacceptable and inappropriate behavior by a
supervisor”). Here, in the underlying specification, the agency alleges that, on
October 27, 2017, the appellant and her coworker “planned to submit a false
incident report and worker’s compensation claim.” IAF, Tab 4, Subtab 4b at 4,
Subtab 4d at 4. The specification further states that the appellant “had a
pre-meditated plan to submit a false incident report” and that she was
“influencing a co-worker to file a false workers’ compensation claim as well.”
Id. Considering the repeated use of the word “false,” we conclude that, to prove
its charge, the agency must show by preponderant evidence that the appellant
planned to commit an act of falsification.4 See Boltz v. Social Security
Administration, 111 M.S.P.R. 568, ¶¶ 16-18 (2009) (finding that, despite using a
general charge, the agency was required to prove the elements of falsification
where the underlying specifications repeatedly used the word “false” in
describing the appellant’s statements).
To prove a charge of falsification, the agency must show by preponderant
evidence that the appellant knowingly provided wrong information with the
intention of defrauding, deceiving, or misleading the agency. Naekel v.
Department of Transportation , 782 F.2d 975, 977 (Fed. Cir. 1986). Boltz,
111 M.S.P.R. 568, ¶ 19. Although the agency has not alleged that the appellant
carried out the plan to file a false incident report and have her coworker file a
false workers’ compensation claim, the specification clearly implies that she
hatched the plan with fraudulent intent. Thus, the agency must establish that
4 We recognize that the proposal and decision letters also include some statements that,
taken alone, could support the proposition that the agency did not charge the appellant
with intentional falsification, but we find that these statements do not overcome the
clear references to falsification elsewhere in the specification. See Boltz v. Social
Security Administration , 111 M.S.P.R. 568, ¶ 18 (2009); cf. Lachance, 147 F.3d at 1372
(finding that a showing of intent was not required where the agency alleged that the
appellant acted with intent to impede an investigation but also clearly stated, as an
alternative basis for the charge, that his conduct would have been unacceptable and
inappropriate behavior “[e]ven if this was not [his] intent”). 4
element of intent in order to prove its charge. See Lachance, 147 F.3d at 1371-72
(observing that, while intent is not necessarily an element of a general charge, a
showing of intent may be required if the conduct described in the specification
itself includes an element of intent).
The appellant testified at the hearing that she did not intend to file a false
incident report or for her coworker to file a false workers’ compensation claim
and that her October 27, 2017 text message was a “ruse” to prevent the coworker
from harming herself over the weekend. HCD (testimony of the appellant). The
administrative judge did not credit that testimony, finding that, “[w]hile the
appellant would like the intent to be interpreted more innocently, the text message
exchange seems to clearly law out a plan for [the coworker] to defraud the agency
through the instruction of the appellant.” ID at 4.
While we do not necessarily disagree with that finding, we agree with the
appellant that the administrative judge should not have discredited her testimony
without making an explicit credibility determination, addressing the applicable
Hillen factors.5 See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (holding 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). Accordingly, on remand, the
administrative judge should make an explicit credibility determination, supported
by an analysis of the relevant Hillen factors, including, if appropriate, his
5 In Hillen v. Department of the Army , 35 M.S.P.R. 453 (1987), the Board held that, to
resolve credibility issues, an administrative judge must identify the factual questions in
dispute, summarize the evidence on each disputed question, state which version he
believes, and explain in detail why he found the chosen version more credible,
considering such factors as: (1) the witness’s opportunity and capacity to observe the
event or act in question; (2) the witness’s character; (3) any prior inconsistent statement
by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the
witness’s version of events by other evidence or its consistency with other evidence;
(6) the inherent improbability of the witness’s version of events; and (7) the witness’s
demeanor. Id. at 458.5
observations of witness demeanor, and make a new finding on the merits of the
charge, as construed above.6
The appeal must be remanded for adjudication of the appellant’s claim of
retaliation for protected EEO activity.
In a case such as this one, in which the appellant has been affected by an
appealable action and alleges that a basis for the action was discrimination
prohibited by 42 U.S.C. § 2000e-16, the Board is required by statute to decide
both the issue of discrimination and the appealable action. 5 U.S.C. § 7702(a)(1).
Here, the appellant has raised a claim that her removal was the result of
retaliation for protected Title VII activity,7 which constitutes a violation of
42 U.S.C. § 2000e-16. See Savage v. Department of the Army , 122 M.S.P.R. 612,
¶¶ 36-37 (2015), overruled in part by Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 23-25. The Board has a statutory obligation to
6 We discern no error in the administrative judge’s finding that the agency proved the
charge of lack of candor. A charge of lack of candor requires proof of the following
elements: (1) that the employee gave incorrect or incomplete information; and (2) that
she did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016). The parties have stipulated that the appellant engaged in the charged
misconduct, namely, that on November 1, 2, and 8, 2017, she told agency officials that
she had been interviewed by unnamed individuals and that she subsequently admitted in
a November 22, 2017 statement that these interviews never took place. IAF, Tab 16
at 5-6 (stipulations 6-7, 9), Tab 4, Subtab 4d at 24-28 (the appellant’s November 22,
2017 statement); see 5 C.F.R. § 1201.63 (providing that the parties may stipulate to any
matter of fact and that the stipulation will satisfy a party’s burden of proving the fact
alleged). The appellant was presumably aware at the time she made her inaccurate
statements that the interviews had not occurred.
7 In portions of the text message conversation between the appellant and her coworker,
which was relayed to management before the agency proposed the removal action, the
appellant appears to have engaged in protected activity under 5 U.S.C. § 2302(b)(1) by
offering her coworker advice and resources on pursuing a Title VII hostile work
environment complaint. IAF, Tab 4, Subtab 4d at 74-79; see In re Frazier , 1 M.S.P.R.
163, 191 n.36 (1979) (noting that 42 U.S.C. § 2000e-16, referenced in 5 U.S.C.
§ 2302(b)(1), includes claims of reprisal for opposition to employment practices made
unlawful by Title VII), aff’d, 672 F.2d 150 (D.C. Cir. 1982); see also Parnell v.
Department of the Army , 58 M.S.P.R. 128, 131 (1993) (citing Frazier). This is not to
say, however, that the entirety of the conversation constitutes protected activity.6
adjudicate that claim, and the administrative judge erred in not addressing it in
his initial decision. See Spithaler, 1 M.S.P.R. at 589.
On remand, the administrative judge should adjudicate the appellant’s
claim of retaliation for protected EEO activity consistent with the Board’s recent
decision in Pridgen v. Office of Management and Budget , 2022 MSPB 31. To
prove such a claim, the appellant must show that reprisal was a motivating factor
in the contested action, i.e., that reprisal played “any part” in the agency's action
or decision. Pridgen, 2022 MSPB 31, ¶¶ 21, 30.
In the event the administrative judge finds that the appellant did not establish her
affirmative defense, he should consider her claim of disparate penalties in
assessing the reasonableness of the penalty .
In addressing the Douglas factors, the administrative judge did not address
the appellant’s disparate penalties claim. This was error. See Spithaler,
1 M.S.P.R. at 589. In the event the administrative judge finds that the appellant
did not establish her affirmative defense, he should revise the penalty analysis to
address the appellant’s disparate penalties claim in accordance with our recently
issued decision in Singh v. U.S. Postal Service , 2022 MSPB 15. 7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.8 | Hudson_KeishaPH-0752-18-0261-I-1 Remand Order.pdf | 2024-03-13 | KEISHA HUDSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-0752-18-0261-I-1, March 13, 2024 | PH-0752-18-0261-I-1 | NP |
2,107 | https://www.mspb.gov/decisions/nonprecedential/Fairbanks_Summer_SF-0432-22-0524-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUMMER FAIRBANKS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0432-22-0524-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Forasiepi , Esquire, and Linda A. Sulik , Esquire, Dallas, Texas,
for the appellant.
Alexess Rea Smith , Esquire, and Martha A. Boden , Baltimore, 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
affirmed her performance-based removal under 5 U.S.C. chapter 43 and found
that she failed to prove her affirmative defenses of discrimination based on age
and disability and retaliation for prior equal employment opportunity activity. 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).
petition for review, the appellant argues that the administrative judge erred in
concluding that the agency met its burden to prove her unacceptable performance
by preponderant evidence. She also challenges the administrative judge’s finding
that she did not prove her affirmative defense claims. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; 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
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Fairbanks_Summer_SF-0432-22-0524-I-1__Final_Order.pdf | 2024-03-13 | SUMMER FAIRBANKS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0432-22-0524-I-1, March 13, 2024 | SF-0432-22-0524-I-1 | NP |
2,108 | https://www.mspb.gov/decisions/nonprecedential/Steblein_Matthew_P_PH-315H-22-0093-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW PAUL STEBLEIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-315H-22-0093-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Paul Steblein , Philadelphia, Pennsylvania, pro se.
Jon D. Pavlovcak and Kimberly M. Engel , Philadelphia, Pennsylvania, 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. 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).
Because the appellant was serving in a 2-year probationary period and he
had completed less than 2 years of current continuous service when he was
terminated, the administrative judge properly found that the appellant failed to
make a nonfrivolous allegation that he qualifies as an “employee” with appeal
rights to the Board under 5 U.S.C. § 7511, as amended by 10 U.S.C. § 1599e.
Initial Appeal File (IAF), Tab 9, Initial Decision at 4. The appellant does not
challenge this finding on review and we discern no reason to disturb it.
For the first time on review, the appellant argues that his termination was
based on marital status discrimination. Petition for Review (PFR) File Tab 1 at 4.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). However, the issue of jurisdiction is
always before the Board and may be raised by either party or by the Board sua
sponte at any time during a proceeding. Ney v. Department of Commerce ,
115 M.S.P.R. 204, ¶ 7 (2010). For the reasons stated below, we find that the
appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 C.F.R. § 315.806.2
To make a nonfrivolous allegation of marital status discrimination,
an appellant must allege facts which, taken as true, would show that he was
treated differently because of his marital status or facts that go to the essence of
his status as married, single, or divorced. Marynowski v. Department of the Navy ,
118 M.S.P.R. 321, ¶ 9 (2012). An appellant’s allegations regarding marital status
discrimination must be “more than mere conjecture.” Ellis v. Department of the
Treasury, 81 M.S.P.R. 6, ¶ 13 (1999); see Stokes v. Federal Aviation
Administration, 761 F.2d 682, 686 (Fed. Cir. 1985) (stating that to establish
Board jurisdiction an appellant must make more than a pro forma pleading that is
merely conclusory). Here, the termination notice shows that the agency
terminated the appellant during his probationary period for getting into
an altercation with another coworker. IAF, Tab 7 at 4. The appellant alleges that
the agency also wanted to terminate him because he had “court ordered
obligations to [his] son, which conflicts with the 24/7 shift schedule” and that he
made the agency aware of his child custody situation prior to being hired.
PFR File, Tab 1 at 4. The Board has held that childcare responsibilities per se are
not dependent on an individual’s marital status and do not go to the essence of
marital status. Green–Brown v. Department of Defense , 118 M.S.P.R. 327, ¶ 7
n.2 (2012). The appellant has not alleged facts which, taken as true, would show
that he was treated differently because of his marital status or that go to the
essence of his marital status. For instance, he has not alleged that the agency
would have treated a married employee more favorably under the same or similar
circumstances, or that the agency otherwise exhibited a keen interest in his
marital status. See, e.g., Lipniarski v. Merit Systems Protection Board ,
26 F. App’x 919, 922-23 (Fed. Cir. 2001)2 (finding that a probationary employee
failed to nonfrivolously allege marital status discrimination because he did not
present any evidence that the agency treated single employees more favorably
2 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Mauldin v.
U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011 ).3
than married employees regarding extended leave for family obligations);
Marynowski, 118 M.S.P.R. 321, ¶ 9 (finding that a probationary employee
nonfrivolously alleged marital status discrimination because she alleged that the
individual who recommended her termination took a keen interest in her marital
status). Thus, we believe the appellant has not made a nonfrivolous allegation of
marital status discrimination.
Lastly, on review, the appellant argues the merits of his termination. PFR
File, Tab 1 at 5-6. Because the Board lacks jurisdiction over this appeal, it
cannot consider the appellant’s arguments regarding the merits of his termination.
Kellum v. Veterans Administration , 2 M.S.P.R. 65, 67 (1980). Therefore, we find
that the administrative judge properly determined that the appellant has not made
a nonfrivolous allegation of Board jurisdiction.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 On review, the appellant submitted a page from the MSPB website and re-submitted
the first page of her termination notice that was already part of the record below. E.g.,
compare IAF, Tab 7 at 4, with PFR File, Tab 1 at 6-7. They are only being considered
here to the extent they impact the issues on review.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Steblein_Matthew_P_PH-315H-22-0093-I-1 Final Order.pdf | 2024-03-13 | MATTHEW PAUL STEBLEIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-315H-22-0093-I-1, March 13, 2024 | PH-315H-22-0093-I-1 | NP |
2,109 | https://www.mspb.gov/decisions/nonprecedential/Simpson_Valerie_PH-0714-18-0410-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE SIMPSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-18-0410-I-1
DATE: March 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Faye R. Cohen , Esquire, Philadelphia, Pennsylvania, for the appellant.
Stacey R. Conroy , Esquire, Philadelphia, Pennsylvania, 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
affirmed her removal taken under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
GRANT the petition for review, VACATE the initial decision, and REMAND the
case to the Northeastern Regional Office for further adjudication in accordance
with this Remand Order. On remand, the administrative judge should (1) provide
the parties with an opportunity to present evidence and argument regarding
whether the agency’s error in reviewing the proposed removal for substantial
evidence was harmful; (2) provide further findings as to whether the appellant has
established that her protected disclosure was a contributing factor in the agency’s
decision to remove her; and (3) review the agency’s penalty selection by
considering the penalty factors.
BACKGROUND
The appellant filed the instant appeal, challenging her July 2018 removal
from her position as a GS-6 Advanced Medical Support Assistant at a Veterans
Affairs Medical Center (VAMC). Initial Appeal File (IAF), Tab 1 at 4, Tab 4
at 6-9. The agency based its removal action, taken pursuant to the authority of
38 U.S.C. § 714, on three specifications of conduct unbecoming a Federal
employee that took place in May 2018. IAF, Tab 4 at 6, 11-12. After holding the
requested hearing, the administrative judge issued an initial decision sustaining
two out of three specifications of the agency’s charge and finding that the
appellant failed to prove her affirmative defenses of harmful procedural error and
whistleblower reprisal. IAF, Tab 14-1, Hearing Recording (HR); IAF, Tab 15,
Initial Decision (ID). The administrative judge did not consider the
reasonableness of the agency’s imposed penalty, noting that such was immaterial
in appeals filed under § 714, and sustained the appellant’s removal. ID at 19-20.
The appellant has filed an untimely petition for review. PFR File, Tab 1.
She has also filed a motion for the Board to accept her filing as timely or, in the
alternative, to waive the time limit for filing based on good cause. Petition for
Review (PFR) File, Tabs 1, 5. The agency has submitted an untimely response in2
opposition to the appellant’s petition for review but did not accompany its
response with any motion for waiver. PFR File, Tab 7.
ANALYSIS
The appellant’s petition for review was untimely filed, but she has established
good cause for her filing delay.
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). Here, as the initial decision was issued on December 17, 2018,
the appellant’s petition for review would have been due January 21, 2019.2 ID.
However, the deadline was automatically extended because of a partial shutdown
of the Federal Government, requiring the Board to cease operations from
December 22, 2018, through January 25, 2019, for a total of 35 days. See PFR
File, Tab 3 at 1. The Board issued a press release on the eve of the partial
shutdown notifying parties that the Board’s electronic filing system would not be
available and that all filing and processing deadlines would be extended by the
number of calendar days the Board is shut down.3 Id. Thus, accounting for this
automatic extension, the deadline for filing the appellant’s petition for review
was February 25, 2019. The appellant filed her petition for review by fax and
U.S. mail on February 27, 2019. PFR File, Tab 1, Tab 5 at 6. Thus, her petition
for review was untimely by 2 days.
The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. Miller v. Department of the Army , 112 M.S.P.R. 689,
2 The initial decision erroneously set forth that the petition for review was due by an
earlier date. ID at 28.
3 Press Release, U.S. Merit Systems Protection Board, Status of the U.S. Merit Systems
Protection Board During a Partial Government Shutdown (Dec. 21, 2018),
https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During_a_Par
tial_Government_Shutdown_1580906.pdf. 3
¶ 13 (2009); 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 misfortune 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); see Alonzo, 4 M.S.P.R. at 183 (good cause is an elastic concept, which
entitles the party to the application of the broad principles of justice and good
conscience).
The length of the delay is a factor that must be considered in every good
cause determination, and a minimal delay favors a finding of good cause. See
Walls v. Merit Systems Protection Board , 29 F.3d 1578, 1582 (Fed. Cir. 1994).
The minimal nature of a 2–day delay is a factor in the appellant’s favor. Id.
Furthermore, the appellant’s excuse for her late filing is reasonable. According
to the appellant’s affidavit, she contacted the Office of the Clerk of the Board on
or about January 12, 2019, prior to the original deadline for her petition for
review and during the partial government shutdown, because she was unable to
access the Board’s electronic filing system. PFR File, Tab 5 at 12. She was
unrepresented at this time. Id. at 5, 7. She avers that she was told that she should
add the length of the shutdown to the date on which the Federal Government
reopened and, thus, upon reopening, understood her deadline to be March 1, 2019.
Id. at 12. Regardless of whether the appellant was, in fact, provided
misinformation, or was merely confused by the press release or other information,
her explanation attributing her minimal delay to the partial government shutdown4
is persuasive. We note that at some later point, the appellant obtained the
assistance of an attorney who, with greater prudence, could have determined the
correct filing deadline. Id. at 8. Nonetheless, we find that the appellant’s
representation by an attorney at the time of filing is outweighed by the other
relevant factors. Moreover, the agency has presented no evidence or argument
suggesting that it would be prejudiced by a waiver of the filing time limit. PFR
File, Tab 7; see Moorman, 68 M.S.P.R. at 63 (explaining that, once good cause
has been demonstrated, the Board must determine whether the agency has shown
that it would be prejudiced by a waiver of the time limit). Accordingly, we waive
the filing time limit for good cause shown.
We find no reason to disturb the administrative judge’s findings that the agency
proved its charge and that the appellant did not prove her affirmative defense of
harmful procedural error.
The agency charged the appellant with three specifications of conduct
unbecoming a Federal employee for conduct that postdated the June 23, 2017
enactment of the VA Accountability Act.4 IAF, Tab 4 at 6, 11-12. The
administrative judge found that two out of three specifications of the agency’s
charge were supported by substantial evidence and sustained the charge. ID
at 14-19. He also found that the appellant did not prove her affirmative defense
of harmful procedural error concerning the agency’s labeling of its charge or its
failure to make a written summary of her oral reply. ID at 23-27. On review, the
appellant challenges some, but not all, of these findings but has provided no basis
for us to disturb them. PFR File, Tab 1 at 5-7. Thus, the administrative judge
may incorporate these findings in his new initial remand decision. However, if
any argument or evidence presented by the parties concerning the issues on
remand, as set forth herein, affects the administrative judge’s analysis of these
4 Preenactment misconduct is not an issue in this case. Cf. Sayers v. Department of
Veterans Affairs, 954 F.3d 1370, 1380-82 (Fed. Cir. 2020) (holding that 38 U.S.C.
§ 714 cannot apply retroactively to conduct that took place before its enactment and
vacating the petitioner’s removal for that reason). 5
issues, he should address such argument or evidence in the remand initial
decision.
On remand, the administrative judge should provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal for substantial evidence was harmful.
In sustaining the appellant’s proposed removal, the deciding official found
that “[the] charge as stated in the notice of proposed removal was supported by
substantial evidence.” IAF, Tab 4 at 6. In Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), the U.S. Court of Appeals for
the Federal Circuit determined that the agency erred by applying a substantial
evidence burden of proof to its internal review of a disciplinary action under
38 U.S.C. § 714. The court found that substantial evidence is the standard of
review to be applied by the Board, whereas the agency’s deciding official must
use a preponderance of the evidence burden of proof. Id. at 1298-1301. In
implementing the Federal Circuit’s decision in Rodriguez, we determined that an
agency’s application of the substantial evidence standard of proof should be
analyzed as a harmful error affirmative defense. Semenov v. Department of
Veterans Affairs , 2023 MSPB 16, ¶¶ 22-25.
Because Rodriquez and Semenov were issued after the issuance of the
initial decision and the appellant’s petition for review in the instant appeal, the
administrative judge should entertain any new harmful error affirmative defense
that the appellant might raise based on the same. If the appellant raises such an
affirmative defense, the administrative judge should provide the parties with an
opportunity to present evidence and argument, including a supplemental hearing
if requested, addressing this issue. See 5 U.S.C. § 7701(a)(1), (b)(1). The
administrative judge should then address this affirmative defense in his remand
initial decision.
Regardless of whether the appellant proves harmful error, if any argument
or evidence on remand affects the administrative judge’s analysis of the other6
issues, the administrative judge should address such argument or evidence in the
remand initial decision.
On remand, the administrative judge should provide further findings as to
whether the appellant’s protected disclosure was a contributing factor in her
removal.
Before the administrative judge, the appellant raised an affirmative defense
of whistleblower reprisal concerning her complaints to the VAMC Compliance
and Ethics Officer and several managers in January 2018 about a backlog of
ultrasound orders in need of scheduling. IAF, Tab 1 at 6, Tab 12 at 7, 11, 23-24;
ID at 11-12. The administrative judge found that the appellant proved that she
made disclosures protected under 5 U.S.C. § 2302(b)(8) because, according to her
testimony, the matter reported evidenced a violation of an agency policy requiring
that all ultrasound requests be scheduled within 30 days. ID at 21. Neither party
challenges this finding on review, and we decline to disturb it.
Having found that the appellant proved that she made protected disclosures,
the administrative judge considered whether she proved that they were a
contributing factor in the agency’s removal action. ID at 21-22; see Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015) (explaining that, in
removal appeals in which the appellant raises an affirmative defense of
whistleblower reprisal, the appellant must show that the protected disclosure was
a contributing factor in the agency’s removal action). To prove that a disclosure
was a contributing factor in a personnel action, the appellant need only
demonstrate that the protected disclosure was one of the factors that tended to
affect the personnel action in any way. Ayers, 123 M.S.P.R. 11, ¶ 25; Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish
contributing factor is the knowledge/timing test. Wadhwa v. Department of
Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d per curiam , 353 F. App’x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action7
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. 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.
Here, the administrative judge found that the appellant did not establish her
prima facie case because she did not prove that the deciding official had
knowledge of her reported violations of the 30-day scheduling policy, nor did she
establish that any manager who did know about the appellant’s disclosures was
the source of the misconduct accusation against her. ID at 21-22. However, the
administrative judge did not address that the individual who proposed the
appellant’s removal based on a third-party’s accusation was copied by the
appellant on emails in which she made protected disclosures.5 IAF, Tab 4 at 13,
Tab 12 at 23-24; ID at 11; see Visconti v. Environmental Protection Agency ,
78 M.S.P.R. 17, 23–24 (1998) (a proposing official’s knowledge of protected
disclosures may be imputed to the deciding official). On remand, the
administrative judge should consider whether the appellant has established that
the proposing official had actual knowledge of these disclosures and, as the
proposing official, influenced the agency’s removal action, thus satisfying the
knowledge prong of the knowledge/timing test.
Moreover, the knowledge/timing test is not the only way an appellant can
establish that her protected disclosures were a contributing factor in the agency’s
personnel action. If an appellant fails to satisfy the knowledge/timing test, the
Board must consider other evidence, such as that pertaining to the strength or
5 Neither party requested to call the proposing official as a witness at the hearing.8
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding official, and
whether those individuals had a desire or motive to retaliate against the appellant.
Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 26 (2013); Dorney,
117 M.S.P.R. 480, ¶ 15. These factors are a nonexhaustive list of the evidence
that may be relevant to a contributing factor determination. See Dorney,
117 M.S.P.R. 480, ¶ 15 (reflecting that the listed factors are the types of factors
to be considered). Here, the administrative judge discussed some evidence
relevant to the contributing factor determination, such as the appellant’s
testimony that her managers became upset with her because her disclosures risked
causing them to receive poor evaluations, but only as factual background. ID
at 11. He did not address this evidence in the context of the appellant’s prima
facie case. ID at 22. Thus, we find that the administrative judge erred by not
addressing the alternative to the knowledge/timing test set forth in Dorney after
concluding that the protected disclosures did not satisfy the knowledge/timing
test. ID at 22.
On remand, the administrative judge must reconsider whether the appellant
has established that her protected disclosures were a contributing factor in the
agency’s personnel action. See Dorney, 117 M.S.P.R. 480, ¶ 14. If the
administrative judge determines that the appellant’s disclosures did not satisfy the
knowledge/timing test, then he must consider other relevant evidence. Id., ¶ 15.
If, after this analysis, the administrative judge finds that the appellant has proven
contributing factor, then the administrative judge must determine whether the
agency has proven by clear and convincing evidence that it would have taken the
same personnel action in the absence of the protected disclosures. See Ayers,
123 M.S.P.R. 11, ¶¶ 12, 27. As the parties were provided a full opportunity to
submit argument and evidence on these issues below, the administrative judge
need not provide the parties with a new opportunity to submit argument and
evidence concerning the appellant’s whistleblower reprisal claim. However, if9
any argument or evidence presented by the parties concerning the issues on
remand affects the analysis of this claim, he must address it.
On remand, the administrative judge should review the agency’s penalty selection
by considering the Douglas factors.
The administrative judge, in interpreting 38 U.S.C. § 714(d)(2)(B), stated
that the reasonableness of the agency’s imposed penalty, along with a
consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), was immaterial. ID at 19-20; see
38 U.S.C. § 714(d)(2)(B) (providing that, “if the decision of the Secretary is
supported by substantial evidence, the administrative judge shall not mitigate the
penalty prescribed by the Secretary.”). Notwithstanding his conclusion that the
Douglas factors were immaterial, he provided some discussion of the merits of
the appellant’s arguments concerning Douglas factor 6, i.e., the consistency of the
penalty with those imposed upon other employees for the same or similar
offenses. ID at 20 n.3; see Douglas, 5 M.S.P.R. at 305. On review, the appellant
reraises her allegation of disparate penalties and argues that the administrative
judge, having found that the agency failed to prove one of its specifications, was
obliged to fully consider the Douglas factors. PFR File, Tab 1 at 9-10.
The administrative judge did not have the benefit of the Federal Circuit’s
recent decisions on the applicability of the Douglas factors in § 714 appeals. See
Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1379 (Fed. Cir. 2020);
see also Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1323-27 (Fed.
Cir. 2021); Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1322-27
(Fed. Cir. 2021). In Sayers, the Federal Circuit clarified that, while the Board
may not “mitigate the penalty,” § 714 nevertheless requires the Board to review
for substantial evidence the entirety of the agency’s removal decision—including
the penalty. 954 F.3d at 1379. In Connor, the Federal Circuit addressed the
continued relevance of the Douglas factors and concluded that § 714 “did not
alter preexisting law, which required the VA and the Board to apply the Douglas10
factors to the selection and review of penalties in VA disciplinary actions.”
8 F.4th at 1326. It stated, “if the Board determines that the VA failed to consider
the Douglas factors or that the chosen penalty is unreasonable, the Board must
remand to the VA for a redetermination of the penalty.” Id. at 1326-1327; see
Semenov, 2023 MSPB 16, ¶¶ 44-49 (remanding to the administrative judge to
review the agency’s penalty selection by considering the Douglas factors).
Here, the deciding official did not reference the Douglas factors in his
removal decision. IAF, Tab 4 at 6-9. He testified at the hearing concerning his
consideration of some of the factors set forth in Douglas, including the
seriousness of the misconduct, the appellant’s years of service, and whether there
were options other than removal. HR (testimony of the deciding official); see
Douglas, 5 M.S.P.R. at 305-06. However, he also testified, when asked about
whether he conducted a penalty analysis in the appellant’s case, that he was “not
required” to conduct a Douglas analysis. HR (testimony of the deciding official).
He explained that he “looked at the penalties, but, under [§] 714, you look at the
severity of the act and then you’re encouraged to move quickly on the severity of
the act.” Id. Without the benefit of the Federal Circuit’s decisions regarding the
Board’s obligation to review the penalty in § 714 appeals, the administrative
judge did not fully develop the issue of whether the agency considered the
Douglas factors and whether the penalty of removal was reasonable. On remand,
the administrative judge should permit the parties to submit additional evidence
and argument on the penalty issue, determine whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and
whether the agency’s penalty was reasonable, and, if not, remand the appellant’s
removal to the agency for a new removal decision. See Semenov, 2023 MSPB 16,
¶ 50. 11
ORDER
We vacate the initial decision and remand the appeal to the regional office
for further adjudication consistent with this order.6
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.12 | Simpson_Valerie_PH-0714-18-0410-I-1__Remand_Order.pdf | 2024-03-13 | VALERIE SIMPSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-18-0410-I-1, March 13, 2024 | PH-0714-18-0410-I-1 | NP |
2,110 | https://www.mspb.gov/decisions/nonprecedential/Pizano_DanielSF-0752-21-0296-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL PIZANO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-21-0296-I-2
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
oel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Laura Dawn Berumen , Esquire, Chula Vista, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which affirmed his removal. On petition for review, the appellant argues that the
administrative judge failed to properly weigh the evidence, that her credibility
determinations are not entitled to deference, and that the penalty of removal is
unreasonable. Petition for Review File, Tab 1. Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
such 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 | Pizano_DanielSF-0752-21-0296-I-2_Final_Order.pdf | 2024-03-13 | DANIEL PIZANO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-21-0296-I-2, March 13, 2024 | SF-0752-21-0296-I-2 | NP |
2,111 | https://www.mspb.gov/decisions/nonprecedential/Madigan_Patrick_J_SF-0752-22-0069-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK J. MADIGAN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-22-0069-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin Johnson , Esquire, Richmond, Virginia, for the appellant.
David Fitzpatrick , Pearl Harbor, Hawaii, 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 from his position as a GS-14 Supervisory General Engineer
for failure to follow instructions. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s removal was based on the charge of failure to follow
instructions, which contained 55 specifications involving the use of his
Government-issued cell phone (PED). Initial Appeal File (IAF), Tab 6 at 16-24,
277-84. In his petition for review, the appellant reiterates his arguments
presented before the administrative judge that the agency erred in sustaining these
specifications because it did not prove that he failed to follow clear instructions
that were actually communicated to him. Petition for Review (PFR) File, Tab 1
at 17; IAF, Tab 18 at 13. He points to various pieces of evidence in support of
his argument that the agency’s policies were ambiguous and unclear. PFR File,
Tab 1 at 17-21. Because the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions, we discern
no reason to disturb his finding that the appellant failed to follow the agency’s
clear instructions on the use of PEDs. IAF, Tab 30, Initial Decision (ID) at 4-34;
see Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357,
359 (1987); see also Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997).
The appellant also challenges the administrative judge’s finding as to
nexus, arguing that his misconduct was insignificant. PFR File, Tab 1 at 22; ID2
at 34-35. He contends that his use of his PED in a secured space did not create
meaningful security threats or result in the actual disclosure of classified
information. PFR File, Tab 1 at 21-22. These arguments provide no basis to
disturb the administrative judge’s findings. It is well established that the charge
of failure to follow instructions relates directly to the efficiency of an employee’s
service. See, e.g., Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 24
(2014); Howarth v. U.S. Postal Service , 77 M.S.P.R. 1, 7 (1997).
Finally, the appellant raises several penalty-related arguments. PFR File,
Tab 1 at 22-25. He downplays the nature and seriousness of his offense and
argues that the initial decision did not address his strong performance history or
mitigating circumstances, including COVID-19 and the ambiguity of the agency’s
PED policy. Id. at 23-24. He also argues that the administrative judge did not
address the agency’s action of allowing the appellant to continue working
remotely after its discovery of the misconduct, which he argues weakens its
position that he could not be rehabilitated. Id. at 25. Here, the deciding official
provided a detailed, written discussion of all relevant Douglas factors and
testified regarding his consideration of the factors. IAF, Tab 6 at 17-20, Tab 28,
Hearing Transcript at 61-64 (testimony of the deciding official). Contrary to the
appellant’s assertions, we agree with the administrative judge that the deciding
official considered all relevant Douglas factors and exercised his discretion
within tolerable limits of reasonableness. ID at 34-38; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981).
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.3
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Madigan_Patrick_J_SF-0752-22-0069-I-1 Final Order.pdf | 2024-03-13 | PATRICK J. MADIGAN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-22-0069-I-1, March 13, 2024 | SF-0752-22-0069-I-1 | NP |
2,112 | https://www.mspb.gov/decisions/nonprecedential/Lamb_AddysNY-0752-19-0223-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADDYS LAMB,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-19-0223-I-1
DATE: March 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Irena Delgado , New York, New York, for the appellant.
David S. Friedman , Esquire, New York, New York, 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 appeal as withdrawn. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
the appeal to the New York Field Office for further adjudication in accordance
with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant is employed by the agency as a Mail Handler Equipment
Operator. Initial Appeal File (IAF), Tab 1 at 3; Petition for Review (PFR) File,
Tab 5 at 77-78. He filed a Board appeal, alleging that the agency reduced his
grade from PS-05 to PS-04 and engaged in retaliatory acts. IAF, Tab 1 at 4, 11.
During the pendency of the appeal, the appellant informed the administrative
judge that he wished to withdraw his appeal without prejudice. IAF, Tab 17.
The administrative judge ordered the appellant to clarify whether he sought a
dismissal without prejudice or withdrawal of the appeal. IAF, Tab 16.
The appellant responded that he wished to withdraw the appeal without prejudice
“as long as the agency discontinue[d] its unlawful, deceptive, and [retaliatory]
conduct.” IAF, Tab 18. The administrative judge issued an initial decision that
dismissed the appeal as withdrawn. IAF, Tab 19, Initial Decision (ID).
The appellant has filed a petition for review of the initial decision.
PFR File, Tab 1. He asserts that the agency continued to discriminate against him
based on his age and disability and engaged in fraudulent and deceptive conduct
that resulted in reprisal and physical and financial harm. Id. at 1. Specifically,
he observes that the agency made a fraudulent claim that it was not aware of the
reason for his absences from work and targeted him with unmerited discipline,
even though he had submitted medical documentation and the agency was aware
of his work-related injury. Id. He provides documents to support his assertions2
2 These documents relate to, among other thing, the appellant’s absences from duty, his
medical condition, claims of an on-the-job injury, and a predisciplinary interview. PFR
File, Tab 1 at 4-29. Some of the documents are in the record below, some post -date the
close of the record below, and others were not submitted below and do not predate the
close of the record below. To the extent that the documents were not submitted below
and are from prior to the close of the record below, 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). Regardless, none of the documents submitted by the appellant are
relevant to the dispositive issue, the effect of his withdrawal of his appeal. On remand,
the administrative judge should determine the admissibility of documents on which the2
and requests a hearing to present his affirmative defenses. Id. at 1, 4-29.
The agency has filed a response, PFR File, Tab 5, to which the appellant has filed
an untimely reply,3 PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and,
in the absence of unusual circumstances such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it has been
withdrawn merely because the appellant wishes to proceed before the Board.
Cason v. Department of the Army , 118 M.S.P.R. 58, ¶ 5 (2012). However, a
relinquishment of one’s right to appeal to the Board must be by clear,
unequivocal, and decisive action. Id.
Here, the appellant asserted below that he wished to withdraw the appeal
without prejudice “as long as the agency discontinue[d] its unlawful, deceptive,
and [retaliatory] conduct.” IAF, Tab 18. The administrative judge subsequently
dismissed the appeal as withdrawn without making any finding as to whether the
appellant’s withdrawal was clear, unequivocal, and decisive. ID at 1-2. In his
petition for review, the appellant has not alleged any unusual circumstances that
appellant relies to support his claim. 5 C.F.R. § 1201.41(b)(3).
3 In an order granting the agency an extension of time to file a response to the
appellant’s petition for review, the Office of the Clerk of the Board informed the
appellant that he could file a reply to the response within 10 days of the date of service
of the agency’s response. PFR File, Tab 4. The certificate of service with the agency’s
response to the petition for review indicates that the response was served on the
appellant by the U.S. Postal Service on June 29, 2020. PFR File, Tab 5 at 96. Allowing
for delivery time by the Postal Service, as provided for in the Board’s regulations,
5 C.F.R. § 1201.23, the appellant’s reply was due on or before July 14, 2020. The
appellant filed his reply to the petition for review on October 20, 2020, over 3 months
past the filing deadline. PFR File, Tab 6 at 41. Thus, it was untimely filed. Moreover,
the appellant has not offered an explanation for the filing delay. Thus, we have not
considered the appellant’s reply to the agency’s response to the petition for review. In
any event, neither the pleading nor the attachments address the dispositive issue before
the Board, the effect of the withdrawal of the appellant’s appeal.3
would justify the reinstatement of his appeal or otherwise raised any challenges to
the dismissal of his appeal as withdrawn.
Nonetheless, the Board will not honor a request to withdraw an appeal
unless it is clear, unequivocal, and decisive and reflects an understanding that
withdrawal is an act of finality, i.e., a dismissal with prejudice. Cason,
118 M.S.P.R. 58, ¶ 5. The appellant’s responses to the administrative judge’s
orders reflect that he sought dismissal without prejudice or at the very least was
confused about the proceeding. IAF, Tabs 17-18. Under the circumstances, we
find that his withdrawal did not meet the standard of being clear, decisive, and
unequivocal.
Thus, we remand this case for the resumption of adjudication, including a
determination as to whether the Board has jurisdiction over the appeal.
On remand, the administrative judge should provide the parties with the requisite
notice and consider their additional evidence to the extent it relates to the
dispositive issue.
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this case to the New York Field Office for further adjudication in accordance with
this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Lamb_AddysNY-0752-19-0223-I-1 Remand Order.pdf | 2024-03-13 | ADDYS LAMB v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-19-0223-I-1, March 13, 2024 | NY-0752-19-0223-I-1 | NP |
2,113 | https://www.mspb.gov/decisions/nonprecedential/James_Gabriela_M_AT-0752-22-0366-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GABRIELA MICHELLE JAMES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-22-0366-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Forsythe , Esquire, Huntsville, Alabama, for the appellant.
Roderick Eves , 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 her removal appeal as untimely filed without good cause shown. On
petition for review, the appellant makes no argument but resubmits a document
she filed 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | James_Gabriela_M_AT-0752-22-0366-I-1__Final_Order.pdf | 2024-03-13 | GABRIELA MICHELLE JAMES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0366-I-1, March 13, 2024 | AT-0752-22-0366-I-1 | NP |
2,114 | https://www.mspb.gov/decisions/nonprecedential/Hamilton_Kish_CarylineAT-0843-22-0044-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARYLINE HAMILTON KISH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0843-22-0044-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Caryline Hamilton Kish , Hinesville, Georgia, 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
affirmed the decision of the Office of Personnel Management (OPM) denying her
application for a lump-sum death benefit under the Federal Employees’
Retirement System (FERS) because she was not the decedent’s designated
beneficiary. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant alleges circumstances surrounding the decedent’s
will executed in February 2020, near the end of her life, suggesting that the will
did not reflect the decedent’s intent. Petition for Review (PFR) File, Tab 1
at 2-3. She also submits medical records, for the first time, reflecting the
decedent’s cancer diagnosis and treatment in support of her argument that the
decedent lacked the mental capacity to designate a FERS beneficiary. Id. at 4-47.
We find no reason for disturbing the administrative judge’s decision in this
case. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (declining to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
We agree with the administrative judge that OPM properly applied the decedent’s
signed and witnessed November 22, 2019 FERS Designation of Beneficiary Form
in determining that the appellant had been replaced as the decedent’s beneficiary
and was not entitled to the lump-sum death benefit. Initial Appeal File (IAF),
Tab 10 at 8-9, 24, Tab 20, Initial Decision; see 5 U.S.C. § 8424(d). Thus, the2
appellant’s arguments on review regarding the decedent’s February 2020 will are
not material to the issue of her FERS entitlement.
The medical evidence submitted by the appellant on review could be
relevant to the issue of the legal validity of the November 22, 2019 designation
form and, consequently, her entitlement. PFR File, Tab 1 at 4-47. However, the
Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the close of
the record despite the party’s due diligence. See Chin v. Department of Defense ,
2022 MSPB 34, ¶ 8; Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
The appellant reported to the administrative judge that she was unable to obtain
these records, IAF, Tab 18 at 4-7, and has provided no explanation in her petition
for review regarding how they became available, PFR File, Tab 1. Furthermore,
the medical evidence does not warrant a different outcome in this case because it
does not establish that the decedent was mentally incapacitated on November 22,
2019, the date of her beneficiary designation. Id. at 4-47; IAF, Tab 10 at 24; see
Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15 (declining to grant a
petition for review absent a showing that new evidence 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) (same).
Therefore, we affirm the administrative judge’s 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
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.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.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. 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 | Hamilton_Kish_CarylineAT-0843-22-0044-I-1__Final_Order.pdf | 2024-03-13 | CARYLINE HAMILTON KISH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-22-0044-I-1, March 13, 2024 | AT-0843-22-0044-I-1 | NP |
2,115 | https://www.mspb.gov/decisions/nonprecedential/Gray_Lowell_J_CH-3443-22-0220-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOWELL JAMES GRAY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-3443-22-0220-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lowell James Gray , Parkville, Missouri, pro se.
Alexander R. Rivera , Esquire, Denver, Colorado, 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 for lack of jurisdiction his appeal on the agency’s denial of his request
for a reasonable accommodation. On petition for review, the appellant reports he
had been unable to access the website, i.e., e-Appeal Online, during his initial
appeal. He states, “For that reason alone, I request reconsideration.” Petition for
Review (PFR) File, Tab 1 at 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. 5 C.F.R. § 1201.113(b).
We have considered the claimant’s allegations that he did not receive the
administrative judge’s jurisdictional order at the time it was issued. Initial
Appeal File, Tab 3; PFR File, Tab 1. However, the appellant acknowledges that
he had access to e-Appeal Online when filing his petition for review. PFR File,
Tab 1 at 1, 4. Having access to the order and notice of the jurisdictional issue, he
failed nevertheless to make a nonfrivolous allegation of Board jurisdiction on
review. Id. Further, denials of reasonable accommodation requests are not
actions that are independently appealable to the Board. Lethridge v. U.S. Postal
Service, 99 M.S.P.R. 675, ¶ 8 (2005). Therefore, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Gray_Lowell_J_CH-3443-22-0220-I-1 Final Order.pdf | 2024-03-13 | LOWELL JAMES GRAY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-3443-22-0220-I-1, March 13, 2024 | CH-3443-22-0220-I-1 | NP |
2,116 | https://www.mspb.gov/decisions/nonprecedential/Teninty_MichaelAT-0752-22-0285-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL TENINTY,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-0752-22-0285-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Geralyn F. Noonan , Esquire, Fort Myers, Florida, for the appellant.
Ashley Geisendorfer , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2After the filing of the petition for review, the agency submitted both a
signed settlement agreement and a motion to dismiss pursuant to the agreement.
PFR File, Tabs 5-6. The agency’s motion requests that both the appeal 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).
petition for review be dismissed. PFR File, Tab 6 at 4. The appellant thereafter
filed a motion consenting to the dismissal of the matter with prejudice based on
the parties’ settlement agreement. PFR File, Tab 8 at 4.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, but do not intend for the agreement to be entered into the
record for enforcement by the Board as the agreement instead provides for
enforcement through the equal employment opportunity procedures set forth at
29 C.F.R. § 1614.504. PFR File, Tab 5 at 9-10. As the parties do not intend for
the Board to enforce the settlement agreement, we need not address the additional
considerations regarding enforcement and do not enter the settlement agreement
into the record for enforcement. Accordingly, we find that dismissing the appeal
with prejudice to refiling (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113). 2
NOTICE 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 courtappointed 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 | Teninty_MichaelAT-0752-22-0285-I-1_Final_Order.pdf | 2024-03-13 | MICHAEL TENINTY v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-0752-22-0285-I-1, March 13, 2024 | AT-0752-22-0285-I-1 | NP |
2,117 | https://www.mspb.gov/decisions/nonprecedential/Verhulst_Brian_DE-0752-22-0060-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN VERHULST,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-0752-22-0060-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Forasiepi , Esquire, and Kelly A. Dowd , Esquire, Dallas, Texas
for the appellant.
Emily Bright Hays , 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
affirmed his removal from Federal service for inappropriate conduct. On petition
for review, the appellant argues that the administrative judge erred in finding that
the agency did not violate his due process rights by failing to provide sufficiently
detailed notice of the allegations against him, disputes the administrative judge’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).
credibility findings, and argues that the agency’s penalty determination was
inappropriate. Petition for Review File, Tab 3 at 9-29. 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 | Verhulst_Brian_DE-0752-22-0060-I-1__Final_Order.pdf | 2024-03-13 | BRIAN VERHULST v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-0752-22-0060-I-1, March 13, 2024 | DE-0752-22-0060-I-1 | NP |
2,118 | https://www.mspb.gov/decisions/nonprecedential/Sutula_Eric_J_DC-315H-22-0299-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC J. SUTULA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-315H-22-0299-I-1
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John V. Berry , Esquire, and Melissa L. Watkins , Esquire, Reston, Virginia,
for the appellant.
Christiann C. Burek , 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 probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant reasserts his argument from below that he
was not subject to a probationary period. Petition for Review (PFR) File, Tab 1.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant was subject to a
probationary period pursuant to 5 C.F.R. § 315.801(a)(1), that he was terminated
prior to the completion of that probationary period, and that he, therefore, was not
an “employee” with Board appeal rights pursuant to 5 U.S.C. § 7511(a)(1).
Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 5-9. She also
appropriately found that the appellant failed to nonfrivolously allege a regulatory
right to an appeal with the Board pursuant to 5 C.F.R. § 315.806(b). ID at 9-11.
Thus, she found that the Board lacked jurisdiction to hear the appellant’s
probationary termination appeal. ID at 11. Absent jurisdiction, she correctly
declined to consider the appellant’s claims of harmful error and a due process
violation, and his challenges to the agency’s assessment of his performance,
which served the basis of his termination. Id.; see Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012). Based on our review of the record, we discern
no basis to disturb these findings.
On review, the appellant argues, among other things, that the administrative
judge’s finding that he was subject to a probationary period pursuant to 5 C.F.R.2
§ 315.801(a)(1) was in error. Under that section, the first year of service of
an employee who received either a career-conditional or career appointment to
the competitive service is a probationary period when the employee was
appointed from a competitive list of eligibles. Because the administrative judge
found that the appellant’s appointment met the criteria of section 315.801(a)(1),
she found that the appellant was subject to a probationary period. ID at 6-7.
For the first time on review, the appellant asserts that he was hired under a Direct
Hire Authority and not a competitive list of eligibles, and that the Direct Hire
Authority under which he was hired eliminates consideration of, among other
things, competitive rating and rankings. PFR File, Tab 1 at 10-12. Generally,
the Board will not consider an argument raised for the first time on review absent
a showing that it is based on new and material evidence that was not previously
available despite the party’s due diligence. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). However, because the appellant’s argument
concerns the question of jurisdiction, and jurisdiction is always before the Board,
we consider it here. See Lovoy v. Department of Health and Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003).
It is undisputed that the appellant was hired under a Direct Hire Authority.
IAF, Tab 5 at 5, 20. Although that authority generally allows agencies to hire
without regard to considerations such as veteran’s preference, competitive rating
and ranking, and the rule of three, the appellant has not pointed to any law, rule,
or regulation mandating that an appointment under that authority may not be
made after consideration of other eligible candidates. PFR File, Tab 1. Indeed,
in the instant matter, the appellant was appointed after consideration was given to
applicants identified on a certificate of eligibles. IAF, Tab 5 at 8, 13. Moreover,
the appellant admits that he has no knowledge of how he was selected, and he
does not deny that he was selected from a certificate of eligibles. PFR File, Tab 1
at 10-11. Although he argues that the “certificate of eligibles” referenced by the
agency, IAF, Tab 5 at 13, is different from a “competitive list of eligibles” as3
contemplated in 5 C.F.R. § 315.801(a)(1), PFR File, Tab 4 at 10, he does not cite
to any authority defining either term. Absent any clearly expressed intent to the
contrary, the plain meaning of the regulation controls. See, e.g., Jones v. Office
of Personnel Management , 107 M.S.P.R. 115, ¶ 8 n.4 (2007). We construe the
plain meaning of a “competitive list of eligibles” to be a certificate of eligibles
that is generated by an agency following a vacancy announcement from which it
will competitively review and select a candidate for appointment to the position.
Given that the appellant was undisputedly selected from a certificate of eligibles
following consideration from other competitive candidates, we conclude that he
was “appointed from a competitive list of eligibles” as contemplated in 5 C.F.R.
§ 315.801(a)(1), despite the Direct Hire Authority utilized by the agency. We,
therefore, agree with the administrative judge that the appellant was subject to a
1-year probationary period pursuant to 5 C.F.R. § 315.801(a)(1)2 and that he was
terminated prior to the completion of that probationary period.
Accordingly, we discern no basis to disturb the initial decision dismissing
the appellant’s probationary termination 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
2 The appellant also argues for the first time on review that his February 16, 2021
appointment was a reinstatement, and thus, that he was not subject to a probationary
period pursuant to 5 C.F.R. § 315.801(b)(2). PFR File, Tab 1 at 15-16. However, he
has not provided any other details supporting his bare assertion that his appointment
was a reinstatement. We find that his claim that his appointment to the competitive
service position was “by definition, a reinstatement” is too broad, vague, and
conclusory to constitute a nonfrivolous allegation that he was reinstated. See 5 C.F.R.
§ 1201.4(s).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Sutula_Eric_J_DC-315H-22-0299-I-1__Final_Order.pdf | 2024-03-13 | ERIC J. SUTULA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-315H-22-0299-I-1, March 13, 2024 | DC-315H-22-0299-I-1 | NP |
2,119 | https://www.mspb.gov/decisions/nonprecedential/Stubblefield_StanleyCH-0731-18-0293-I-8 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY STUBBLEFIELD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0731-18-0293-I-8
DATE: March 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stanley Stubblefield , Milwaukee, Wisconsin, pro se.
Erin Buck Kaiser , Esquire, Milwaukee, Wisconsin, 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
affirmed the agency’s negative suitability determination. On petition for review,
the appellant appears to generally disagree with the administrative judge’s
finding, arguing that the “[a]gencies [sic] decision was based on false accusations
by police who poorly fabricated a story.” Petition for Review File, Tab 1 at 5.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 | Stubblefield_StanleyCH-0731-18-0293-I-8 Final Order.pdf | 2024-03-13 | STANLEY STUBBLEFIELD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0731-18-0293-I-8, March 13, 2024 | CH-0731-18-0293-I-8 | NP |
2,120 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Tiffany_AT-0752-22-0334-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIFFANY JACKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-22-0334-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tiffany Jackson , Jackson, Mississippi, pro se.
Theresa M. Gegen , 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 her appeal as untimely filed without good cause shown.
On petition for review, the appellant argues that the administrative judge erred in
finding that her timely internal appeal with the agency did not relieve her of her
obligation to meet the regulatory time limit for filing a Board appeal. PFR File,
Tab 1 at 3. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant’s argument that the administrative judge should have treated her Board
appeal as a mixed case and found good cause for extending her filing deadline is
without merit. While the Board has held that, pursuant to 5 U.S.C. § 7702(f), it must
consider timely an appeal in a mixed case that was filed on time but with an agency
other than the Board, Williams v. U.S. Postal Service , 115 M.S.P.R. 318, ¶ 10 (2010), a
“mixed case” is one involving both an appealable personnel action and a claim of
discrimination. 5 U.S.C. § 7702(a)(1); Wood v. Department of Defense , 71 M.S.P.R.
104, 106 (1996); Marenus v. Department of Health & Human Services , 39 M.S.P.R.
498, 502 n.1 (1989). There is no evidence that the appellant filed a formal complaint of
discrimination. Therefore, the regulatory time limits applicable to mixed cases are not
applicable here.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Jackson_Tiffany_AT-0752-22-0334-I-1_Final_Order.pdf | 2024-03-12 | TIFFANY JACKSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0334-I-1, March 12, 2024 | AT-0752-22-0334-I-1 | NP |
2,121 | https://www.mspb.gov/decisions/nonprecedential/Wuwert_Reinhold_A_CH-0831-22-0036-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REINHOLD A. WUWERT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-22-0036-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reinhold A. Wuwert , Toledo, Ohio, pro se.
Tanisha Elliott Evans , 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
affirmed the final decision of the Office of Personnel Management that awarded
his former spouse 35.69% of his Civil Service Retirement System gross monthly
annuity. On petition for review, the appellant argues that the administrative
judge failed to timely issue the initial decision. Petition for Review File, Tab 1
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 4. Specifically, he argues the administrative judge exceeded her authority by
issuing the initial decision on March 11, 2022, thirty-two days after she issued an
order dated February 7, 2022 suspending case processing for 30 days. Id. The
appellant also asserts that his former spouse should be awarded 35.39% of his
annuity as specified in the initial decision. Id. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
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
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Wuwert_Reinhold_A_CH-0831-22-0036-I-1_Final_Order.pdf | 2024-03-12 | REINHOLD A. WUWERT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-22-0036-I-1, March 12, 2024 | CH-0831-22-0036-I-1 | NP |
2,122 | https://www.mspb.gov/decisions/nonprecedential/Van_Walden_Erik_L_SF-844E-18-0014-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIK VAN WALDEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-18-0014-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erik Van Walden , Olympia, Washington, pro se.
Linnette Scott , 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
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying his application for disability retirement. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. Except as
expressly MODIFIED as to the reason for finding certain medical evidence
unpersuasive, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as a GS-13 Program Support Officer
with the Department of Agriculture’s U.S. Forest Service. Initial Appeal File
(IAF), Tab 5 at 44, 81. He resigned from Federal service effective
September 19, 2015, due to “medical reasons.” Id. at 70-73, 81. On April 12,
2016, he filed an application for a disability retirement annuity under the Federal
Employees’ Retirement System (FERS). Id. at 74-80. In his Applicant’s
Statement of Disability, he described his conditions as post-traumatic stress
disorder, major depression, mitral valve prolapse, blood pressure, syncope,
dysautonomia, mixed personal traits, and back injury. Id. at 42.
On January 11, 2017, OPM issued an initial decision denying the
appellant’s disability retirement application. Id. at 23-29. The appellant then
requested reconsideration, which OPM denied. Id. at 4-8. OPM concluded that
the submitted medical evidence failed to establish a disabling medical condition.
Id. at 4, 6. The appellant timely filed an appeal with the Board. IAF, Tab 1.
He did not request a hearing. Id. at 2. 2
Based on the written record, the administrative judge affirmed OPM’s final
decision, finding that the appellant did not prove his entitlement to disability
retirement under FERS. IAF, Tab 17, Initial Decision (ID). The administrative
judge found that the appellant showed that he filed an application for FERS
disability retirement within the required timeframe; he had completed 18 months
of civilian service creditable under FERS; his medical condition, generally, was
expected to last for at least 1 year; and he had not declined a reasonable offer of
reassignment to a vacant, funded position at the same grade or pay level.
ID at 17-18. However, he then found that the appellant failed to establish by
preponderant evidence that, one, while employed in a position subject to FERS,
he became disabled because of a medical condition, resulting in a deficiency in
performance, conduct, or attendance, or if there was no such deficiency, the
disabling medical condition was incompatible with either useful and efficient
service or remaining in the position; and two, accommodation of his medical
conditions in the position he held was unreasonable. ID at 18.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The appellant argues that the administrative judge improperly
weighed the medical evidence and that the evidence in support of his claim for
disability retirement is strong and unrefuted. Id. at 25-26. The appellant also
requests anonymity to protect his right to privacy. Id. at 27-29. The agency has
not filed a response to the appellant’s petition.2
2 To the extent that the appellant’s pleadings suggest he lacks the capacity to pursue his
appeal on his own, we find no need to provide French procedures. IAF, Tab 11 at 17,
Tab 14 at 8; PFR File, Tab 1 at 29, Tab 4 at 4; see French v. Office of Personnel
Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987) (requiring the Board to develop
procedures to address situations in which an incompetent appellant is proceeding
without assistance “to ensure the presence of a competent conservator or attorney if
possible”). The appellant received below, and continues to receive on review, the
assistance of an attorney. IAF, Tab 11 at 17, 28, Tab 14 at 8; PFR File, Tab 4 at 4.
Although this individual is not the appellant’s designated representative, he has
provided substantial and competent assistance. Thus, we determine that the appellant is
not entirely pro se such that Board intervention would be required. See Moses v. Office
of Personnel Management , 80 M.S.P.R. 535, 538 (1998) (explaining that the Board’s3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s motion for anonymity is denied.
The Board has not adopted a rigid, mechanical test for determining whether
to grant anonymity, but instead applies certain general principles in making such
determinations. Ortiz v. Department of Justice , 103 M.S.P.R. 621, ¶ 10 (2006).
Those factors include whether identification creates a risk of retaliatory physical
or mental harm, whether anonymity is necessary to preserve privacy in a matter of
a sensitive and highly personal nature, or whether the anonymous party is
compelled to admit his intention to engage in illegal acts, thereby risking criminal
prosecution. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 10
(2007). The Board also considers whether anonymity is necessary to prevent a
clearly unwarranted invasion of the privacy of a third party or whether anonymity
is necessary to preserve the appellant’s physical safety. Id. Other potentially
relevant factors include whether the appellant requested anonymity at the
commencement of the proceeding before the Board or immediately after the need
for anonymity became apparent, and which party placed the sensitive matter in
question at issue in the appeal. Id.
A party seeking anonymity must overcome the presumption that parties’
identities are public information. Id., ¶ 11. Anonymity should be granted to
litigants before the Board only in unusual circumstances, and the determination
whether to grant anonymity must depend on the particular facts of each case. Id.
A litigant seeking anonymity before the Board must present evidence establishing
that harm is likely, not merely possible, if his name is disclosed. Id. Even when
some harm is likely, the Board grants anonymity only if the likelihood and extent
of harm to the appellant significantly outweighs the public interest in the
disclosure of the parties’ identities. Id.
Here, the appellant has requested anonymity to preserve the privacy of his
medical information. PFR File, Tab 1 at 27-28. In considering the
obligations under French exist only when the appellant is “entirely pro se”). 4
aforementioned factors, we find that the appellant filed the disability retirement
application at issue in the instant appeal, thus placing his medical condition at
issue. See Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579, ¶ 23
(2012) (granting the appellant’s request for anonymity when the agency’s actions
at issue resulted from improperly requiring the appellant to undergo a fitness for
duty medical examination, and thus, the agency placed her sensitive medical
information at issue); IAF, Tab 5 at 74-80. In addition, the appellant did not
request anonymity at the commencement of the proceeding before the Board but
waited until filing his petition for review. See Pinegar, 105 M.S.P.R. 677, ¶ 10.
Moreover, in requesting anonymity, the appellant has offered nothing more than
an allegation that he has an “implicit right to privacy,” he has not explained why
“harm is likely,” and he has not offered any evidence to support his allegation.
PFR File, Tab 1 at 27-29. While it is understandable that the appellant wishes to
preserve his privacy, he has failed to rebut the presumption that the parties’
identities are public information in Board cases. See Pinegar, 105 M.S.P.R. 677,
¶ 19 (explaining that medical conditions arise in many Board cases, and absent
information about the appellant’s condition that would cause extreme
embarrassment or exposure to public ridicule, does not warrant anonymity).
Therefore, we deny the appellant’s motion requesting anonymity.
The appellant failed to show by preponderant evidence that he qualifies for
disability retirement.
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.3
Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 8 (2008);
5 C.F.R. § 1201.56(b)(2)(ii) . To qualify for disability retirement benefits under
FERS, an individual must meet the following requirements: (1) the individual
3 Contrary to the appellant’s assertions on review, OPM’s failure to present medical
evidence contrary to that presented by the appellant is a factor for consideration but
does not automatically establish that the appellant has met his burden. PFR File, Tab 1
at 9; see Bridges v. Office of Personnel Management , 21 M.S.P.R. 716, 719 (1984). 5
must have completed at least 18 months of creditable civilian service; (2) the
individual, while employed in a position subject to FERS, must have become
disabled because of a medical condition, resulting in a deficiency in performance,
conduct, or attendance, or, if there is no such deficiency, the disabling medical
condition must be incompatible with either useful and efficient service or
retention in the position; (3) the disabling medical condition must be expected to
continue for at least 1 year from the date the disability retirement benefits
application is filed; (4) accommodation of the disabling medical condition in the
position held must be unreasonable; and (5) the individual must not have
declined a reasonable offer of reassignment to a vacant position. 5 U.S.C.
§ 8451(a), (c); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. § 844.103(a).
As the administrative judge observed, there is no dispute that the appellant
completed 18 months of creditable civilian service and that some of his medical
conditions had continued, or would be expected to continue, for more than a year
after his application for disability retirement. ID at 17. The administrative judge
also found that the appellant established that he had not declined a reasonable
offer of reassignment to a vacant position. ID at 17-18. Thus, as noted by the
administrative judge, the only issues in this appeal relate to the appellant’s
medical condition and its effects on his ability to perform in his former position,
i.e., eligibility criteria (2) and (4).4 ID at 18.
We agree with the administrative judge’s finding that the appellant did not
show that his medical conditions resulted in a deficiency in performance,
conduct, or attendance. ID at 21. As thoroughly summarized by the
administrative judge, the appellant submitted medical documentation to support
his application for disability retirement. ID at 2-15; IAF, Tab 5 at 9-22, 42-69,
Tab 11 at 19-29. However, he noted that the only possible performance, conduct,
4 On review, the appellant argues that his medical condition was expected to last for at
least a year and that he was never offered reassignment. PFR File, Tab 1 at 22-24.
Because the administrative judge found in favor of the appellant on requirements
(3) and (5), which relate to these arguments, they provide no basis to grant review. 6
or attendance deficiency identified in the appellant’s disability retirement
application pertained to his attendance, which appeared to be as a result of his
resignation. ID at 21; IAF, Tab 5 at 44-45. The appellant’s supervisor submitted
a statement in connection with the appellant’s disability retirement application.
IAF, Tab 5 at 44-45. He indicated that the appellant had no performance or
conduct deficiencies prior to his resignation. Id. As for the appellant’s
attendance, he indicated it was not unacceptable but that the appellant was no
longer coming to work due to his “voluntary resignation for medical reasons
effective 9/19/15.” Id. at 45.
On review, the appellant argues that his attendance issues began before his
resignation. PFR File, Tab 1 at 16-17. He alleges that, due to his June 2015
syncopal episode, he was absent from his position until his resignation in
September 2015. Id. at 5 n.3, 12-13, 17. He also suggests that he has a history of
medically related attendance problems, as detailed in a letter from a psychiatrist
which indicates he received a cautionary letter in November 2013. Id. at 16-17.
However, because attendance issues standing alone do not establish entitlement to
disability retirement under FERS without some corroborating evidence showing
impaired performance of duties, the administrative judge correctly found that the
appellant failed to establish this element. See Harris v. Office of Personnel
Management, 110 M.S.P.R. 249, ¶ 17 (2008); Wilkey-Marzin v. Office of
Personnel Management , 82 M.S.P.R. 200, ¶ 11 (1999) (explaining that an absence
without a reasoned explanation of how an appellant’s medical condition
precluded her from performing her duties cannot alone support a finding of
disability).
Because the appellant’s disabilities did not result in a deficiency in his
performance, conduct, or attendance in his former position, the relevant question
is whether the appellant’s medical condition is incompatible with either useful
and efficient service or retention in his former position. See Henderson,
109 M.S.P.R. 529, ¶ 11. The administrative judge found that the appellant failed7
to establish by preponderant evidence a disabling medical condition that was
incompatible with useful and efficient service or retention in his former position.
ID at 25. In reaching this determination, he evaluated the medical evidence and
found that the three medical opinions provided by the appellant in support of his
claim were unpersuasive. ID at 22-24.
On review, the appellant claims that the administrative judge applied an
erroneous legal standard in assessing the medical opinions, in violation of
Vanieken-Ryals v. Office of Personnel Management , 508 F.3d 1034 (Fed. Cir.
2007). PFR File, Tab 1 at 9-10, 25-26. The appellant claims that he met his
burden because all three health care providers stated that he was “completely
disabled—unable to return to work in any capacity” without contradiction by
OPM, id. at 21, and that he is not required to prove a link between his disabilities
and an inability to perform his job duties, id. at 25 n.45. He also alleges that,
contrary to the administrative judge’s finding, his health care provider who has a
bachelor of medicine, bachelor of surgery (MBBS) degree is qualified and had
sufficient opportunity to observe the appellant. Id. at 15, 21-22. However, as
discussed below, we find that the administrative judge correctly weighed the
evidence to find that the appellant did not show that his medical conditions were
incompatible with either useful and efficient service or retention in his position.
ID at 25.
To establish an inability to render useful and efficient service, the appellant
must show that his medical condition is inconsistent with working in general,
working in a particular line of work, or working in a particular type of setting.
Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶ 16 (2012)
(articulating this standard in the context of an application for disability retirement
under the Civil Service Retirement System); see Jackson v. Office of Personnel
Management, 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the holding in Henderson
applies to FERS disability retirement appeals). A determination of disability is
based on objective clinical findings, diagnoses and medical opinions, subjective8
evidence of pain and disability, and evidence showing the effect of the
individual’s condition on his ability to perform the duties of his position.
Henderson, 117 M.S.P.R. 313, ¶ 19. The U.S. Court of Appeals for the Federal
Circuit concluded in Vanieken-Ryals, 508 F.3d at 1042, that it is a legal error for
OPM or the Board “to reject submitted medical evidence as entitled to no
probative weight at all solely because it lacks so-called ‘objective’ measures such
as laboratory tests.” Pursuant to Vanieken-Ryals, OPM and the Board may give
limited weight to medical evidence “in the face of factors such as doubts about
professional competence, contrary medical evidence, failure of the professional to
consider relevant factors, lack of particularity in relating diagnosis to nature and
extent of disability, etc.” 508 F.3d at 1042. In assessing the probative value of
medical opinions, the Board considers whether the opinion was based on a
medical examination, whether the opinion provided a reasoned explanation for its
findings as distinct from mere conclusory assertions, the qualifications of the
expert rendering the opinion, and the extent and duration of the expert’s
familiarity with the treatment of the appellant. Slater v. Department of Homeland
Security, 108 M.S.P.R. 419, ¶ 15 (2008), overruled on other grounds by Haas v.
Department of Homeland Security , 2022 MSPB 36, ¶ 14. When, as here, the
health care providers did not testify, the probative value of their reports depends
on the circumstances of the case. Id. (citing Borninkhof v. Department of Justice ,
5 M.S.P.R. 77, 83-87 (1981)).
Here, the administrative judge thoroughly analyzed the medical opinions of
the appellant’s three health care providers but ultimately found that the reports
had little probative value. ID at 22-24; IAF, Tab 5 at 14-15, 46-50, 67, Tab 11
at 19-29. First, the administrative judge found that the medical opinion of the
appellant’s health care provider with an MBBS degree was unpersuasive due to
the lapse in time between the appellant’s resignation in September 2015 and the
provider’s two examinations of the appellant in August 2016 and December 2017,
of which each report largely consisted of his review of the appellant’s medical9
records rather than his familiarity with the treatment of the appellant himself. ID
at 22. Contrary to the appellant’s argument, it was appropriate for the
administrative judge to assess the extent and duration of the provider’s familiarity
with the appellant and to observe that the record lacked information on the
provider’s qualifications. PFR File, Tab 1 at 15, 21 -22; ID at 22; see Slater,
108 M.S.P.R. 419, ¶ 15. The appellant also argues that the administrative judge
improperly required this and other health care providers to link the appellant’s
medical conditions with his specific job duties. PFR File, Tab 1 at 25 n.45. We
agree.
Nothing in the law mandates that a single provider tie all pertinent
evidence together. Henderson, 117 M.S.P.R. 313, ¶ 19. Further, an appellant is
not required to show that he cannot perform in his position and may prove
disability by showing he cannot work in any job. Vanieken-Ryals, 508 F.3d
at 1043; Henderson, 117 M.S.P.R. 313, ¶ 19. Thus, the administrative judge’s
reliance on the lack of evidence tying the appellant’s specific job duties to his
medical condition was improper. ID at 22. Nonetheless, we agree with his
finding that the reports of the appellant’s provider with an MBBS degree are
entitled to little weight because his qualifications to diagnose and treat medical
conditions are unclear. The appellant’s assertion on review that this provider is a
“specialist in family medicine and a full professor at the Fiji National
University’s School of Medicine” does not address these concerns. PFR File,
Tab 1 at 15. We also find that the probative value of this provider’s reports is
limited because it is unclear that the provider did, in fact, examine the appellant
at all. Specifically, he stated only that the appellant “presented” himself in
August 2016. IAF, Tab 5 at 14. Further, his December 2017 report does not
suggest that he examined the appellant. IAF, Tab 11 at 19-21. Absent any
evidence that this provider was either qualified to diagnose the appellant or even
examined him, we cannot give his report any weight. 10
Similarly, we agree with the administrative judge’s finding that the medical
opinion of a psychiatrist certified in psychosomatic medicine, IAF Tab 5 at 46-50,
Tab 11 at 25-29, was unpersuasive due to her lack of familiarity with and
treatment of the appellant, as she personally interacted with the appellant only
twice in 2015 and reviewed largely unproduced medical records and discovery
responses drafted by the appellant. See Slater, 108 M.S.P.R. 419, ¶ 15;
ID at 23-24. The administrative judge concluded that her opinion lacked
reasoned explanations. ID at 24. We agree. Although the appellant argues on
review that this psychiatrist treated him for 2 years, he does not dispute that the
only treatment she provided was two appointments in 2015. PFR File, Tab 1
at 22.
Finally, the administrative judge analyzed the medical reports from another
treating psychiatrist, IAF, Tab 5 at 67, Tab 11 at 22-24, but found them
inconsistent and improbable. ID at 24. Specifically, that psychiatrist’s July 2015
medical opinion, closest in proximity to a June 2015 syncopal episode that the
appellant suffered while working, simply states that the syncope was caused by
job-related stress. IAF, Tab 5 at 67. As noted by the administrative judge, it was
not until the December 2017 medical opinion that this psychiatrist stated that the
appellant was unable to perform his job without risking harm to himself or others
due to high levels of stress, post -traumatic stress disorder, and depression. IAF,
Tab 11 at 24; ID at 24. However, this assessment did not provide a reasoned
explanation of his findings, was inconsistent with his prior report, and was over
2 years removed from his treatment of the appellant. See Slater, 108 M.S.P.R.
419, ¶ 15; Borninkhof, 5 M.S.P.R. at 87 (observing that one of the relevant factors
in assessing the weight to be accorded to hearsay evidence is its consistency with
other evidence in the record).
Thus, despite all three health care providers arriving at the same
conclusion, we agree with the administrative judge’s determination that their
reports were ultimately unpersuasive. ID at 24-25. Accordingly, we agree with11
the administrative judge that the appellant is not eligible for disability retirement
under FERS.5
The appellant’s additional claims on review fail to provide a reason to disturb the
initial decision.
The appellant alleges that the administrative judge “gave an appearance of
bias” when he sua sponte suspended appeal processing for 21 days.6 PFR File,
Tab 1 at 10 n.26; IAF, Tab 12. He also disputes some of the administrative
judge’s factual findings as demonstrating bias. PFR File, Tab 1 at 18, 20. 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. Smets v. Department of the Navy , 117 M.S.P.R. 164,
¶ 15 (2011), aff’d per curiam , 498 F. App’x 1 (Fed. Cir. 2012); Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980). Administrative
judges have wide discretion to control the proceedings before them, and
dismissing an appeal without prejudice is a procedural option committed to their
sound discretion. King v. Department of the Army , 84 M.S.P.R. 235, ¶ 4 (1999).
We decline to infer bias on the administrative judge’s decision to suspend the
case or his other case-related rulings. Vaughn v. Department of the Treasury ,
119 M.S.P.R. 605, ¶ 18 (2013).
5 Because a disability retirement applicant must establish that he meets all of the
eligibility requirements, and the appellant failed to establish that he was unable,
because of his medical conditions, to render useful and efficient service in his former
position, we need not consider whether he established the other eligibility requirements,
i.e., whether accommodation of the disabling medical condition in the position held was
unreasonable. Thus, we do not address the appellant’s arguments on review as to this
criterion. PFR File, Tab 1 at 12-13, 17-20, 23.
6 On review, the appellant also frames this issue as the administrative judge improperly
extending the deadline for OPM to submit its close of record submission. PFR File,
Tab 1 at 10 n.26. However, the order at issue suspended case processing for both
parties. IAF, Tab 12. Furthermore, both OPM and the appellant submitted their close
of record submissions on December 22, 2017, IAF, Tabs 10, 11, while the
administrative judge issued his order on December 26, 2017, IAF, Tab 12. Thus, this
argument does not provide a basis for review. 12
Additionally, the appellant contends that the administrative judge
improperly denied his motion to compel discovery. PFR File, Tab 1 at 10 n.26.
The Board will not find reversible error in an administrative judge’s discovery
rulings absent an abuse of discretion that prejudiced the appellant’s substantive
rights. White v. Government Printing Office , 108 M.S.P.R. 355, ¶ 9 (2008).
The appellant specifically argues that OPM failed to explain its reasoning as to
how his disabilities could be accommodated, as requested in the appellant’s
interrogatories nos. 1-3. PFR File, Tab 1 at 10 n.26; IAF Tab 7 at 14-15, 18.
We agree with the administrative judge that interrogatory no. 2, which asked
OPM whether it was accusing the appellant’s former employing agency of
submitting false or incorrect information when it certified he could not be
accommodated, was not relevant to this appeal or reasonably calculated to lead to
the discovery of admissible evidence. IAF, Tab 9 at 2, Tab 7 at 14; see
Chandler v. Department of the Treasury , 120 M.S.P.R. 163, ¶ 10 (2013)
(explaining that relevant information, in the context of discovery, includes
information that appears reasonably calculated to lead to the discovery of
admissible evidence). As to interrogatories nos. 1 and 3, which asked OPM to
explain whether it disagreed with the employing agency’s determination that
accommodations were not possible and to detail what accommodation was
possible for each identified condition, we agree with the administrative judge that
OPM’s response, referring the appellant to its initial and reconsideration
decisions, was sufficient. IAF, Tab 9 at 1-2, Tab 7 at 14-15.
In any event, the decision in this appeal does not turn on whether the
appellant could be accommodated, and the administrative judge’s refusal to
compel responses to interrogatories on this topic does not affect the outcome
here. Thus, having reviewed the appellant’s arguments on review, we find that
the administrative judge did not abuse his discretion in denying the motion to
compel.13
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any15
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s16
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Van_Walden_Erik_L_SF-844E-18-0014-I-1__Final_Order.pdf | 2024-03-12 | ERIK VAN WALDEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-18-0014-I-1, March 12, 2024 | SF-844E-18-0014-I-1 | NP |
2,123 | https://www.mspb.gov/decisions/nonprecedential/Seay_Alika_M_AT-844E-22-0026-P-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALIKA MONET SEAY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-22-0026-P-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alika Monet Seay , Quitman, Georgia, pro se.
Sheba Dunnings Banks , 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
denied the appellant’s request for compensatory damages. On petition for review,
the appellant argues, among other things, that the Office of Personnel
Management discriminated against her in the processing of her application for
disability retirement benefits. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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 matter, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
except as expressly MODIFIED to DISMISS rather than deny the request for
compensatory damages.
The administrative judge denied the appellant’s request for compensatory
damages on the grounds that such a claim must rest upon a Board finding of
discrimination or retaliation in violation of a statute permitting compensatory
damages, and the Board had not made any findings on the merits in the
appellant’s disability retirement appeal. Damages File, Tab 3, Initial Decision
at 3-4. We agree with this determination by the administrative judge. However,
this determination leads us to conclude that the appellant had no entitlement to
compensatory damages, and thus dismissal, rather than a denial of the appellant’s
request for compensatory damages, was the appropriate disposition. Jackson v.
U.S. Postal Service , 79 M.S.P.R. 46, 54-55 (1998) (dismissing a claim for
compensatory damages when there was no finding of discrimination entitling the
appellant to damages). We therefore modify the initial decision to dismiss the
request.2
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Seay_Alika_M_AT-844E-22-0026-P-1__Final_Order.pdf | 2024-03-12 | ALIKA MONET SEAY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-22-0026-P-1, March 12, 2024 | AT-844E-22-0026-P-1 | NP |
2,124 | https://www.mspb.gov/decisions/nonprecedential/Nance_Lequita_T_AT-0845-22-0136-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEQUITA T. NANCE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-22-0136-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lequita T. Nance , Phenix City, Alabama, pro se.
Jo Bell , 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 affirmed the reconsideration decision of the Office of Personnel
Management (OPM) finding that she had been overpaid annuity benefits under the
Federal Employees’ Retirement System and that she did not qualify for a waiver
of collection or adjustment of the collection schedule. On petition for review, 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).
appellant reasserts that OPM improperly calculated her high-3 salary and that the
$29,413 overpayment amount is inaccurate because it includes a period for which
she had already repaid. 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.2 Petition for Review (PFR) File, Tab 1. The Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision. Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d).
The appellant’s documents submitted for the first time on review are social
security benefit statements and an August 26, 2019 letter from the Social Security
Administration detailing the appellant’s social security benefits at that time,
2 Some of the documents the appellant includes with her 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 41-44; Initial Appeal File, Tab 18 at 2-9; see Brough v.
Department of Commerce , 119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will
grant a petition for review based on new and material evidence under certain
circumstances, but that evidence that is already a part of the record is not new). We
decline to discuss these documents further.2
which do not warrant a different outcome. PFR File, Tab 1 at 28-40.
We therefore decline to consider these documents further.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nance_Lequita_T_AT-0845-22-0136-I-1_Final_Order.pdf | 2024-03-12 | LEQUITA T. NANCE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-22-0136-I-1, March 12, 2024 | AT-0845-22-0136-I-1 | NP |
2,125 | https://www.mspb.gov/decisions/nonprecedential/Castlin_Carlton_AT-0752-17-0714-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLTON CASTLIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0714-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Harley , Mount Pleasant, South Carolina, for the appellant.
Karen Rodgers , Montgomery, Alabama, for the agency.
Sophia Haynes , Esquire, Decatur, Georgia, 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
mitigated the appellant’s removal to a 3-day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review, AFFIRM the
administrative judge’s findings that the agency proved its charge as modified 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
sustain an additional specification, REVERSE the administrative judge’s decision
to mitigate the penalty, and SUSTAIN the appellant’s removal.
BACKGROUND
The appellant was employed by the agency as an Advanced Medical
Support Assistant. Initial Appeal File (IAF), Tab 8 at 12. The agency proposed
his removal on June 8, 2017. Id. at 56-57. Effective July 19, 2017, the agency
removed him based on one charge of inappropriate conduct supported by four
specifications. Id. at 12, 14-17. According to the specifications, while on duty,
the appellant called a female coworker a profane epithet (specification A), made
critical comments and gestures about other female coworkers’ attire and body
parts (specifications B and C), and made sexually explicit comments and gestures
to another female coworker (specification D). Id. at 14-15.
The appellant filed an appeal of his removal, challenging the sufficiency of
the charges and raising affirmative defenses of race, age, sex, and sexual
orientation discrimination.2 IAF, Tab 1 at 3, Tab 19 at 5, Tab 28, Initial Decision
(ID) at 15. After holding a hearing, the administrative judge issued an initial
decision mitigating the appellant’s removal to a 3-day suspension. ID at 1-2,
13-15. He found that the agency proved specification A, but not the remaining
specifications; there was a nexus between the nature of the proven on-duty
misconduct and the efficiency of the service; and a 3-day suspension was the
maximum penalty warranted under the circumstances. ID at 4-15. He found that
2 In the initial decision, the administrative judge did not consider the appellant’s
inchoate equal employment opportunity (EEO) reprisal affirmative defense that he
arguably raised in his initial appeal. ID at 15; IAF, Tab 1 at 3. The appellant did not
assert that affirmative defense in any of his subsequent pleadings; object to the
administrative judge’s status conference summary, which limited the appellant’s
affirmative defenses to discrimination based on race, age, sex, and sexual orientation; or
file a petition for review or other pleading challenging the initial decision that failed to
address this potential affirmative defense. ID at 15; IAF, Tabs 19, 20. Accordingly, we
find that, under these circumstances, the appellant waived or abandoned his EEO
reprisal affirmative defense. See Thurman v. U.S. Postal Service , 2022) (setting forth a
nonexhaustive list of factors for determining whether the appellant waived or
abandoned an affirmative defense).
3
the appellant did not prove his affirmative defenses.3 ID at 15-22. The agency
has filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency does not dispute the administrative judge’s finding that it proved the
inappropriate conduct charge. ID at 13; see Canada v. Department of Homeland
Security, 113 M.S.P.R. 509, ¶ 9 (2010) (observing that a charge of improper
conduct has no specific element of proof and is established by proving that the
employee committed the acts alleged in support of the broad label). Rather, it
asserts that the administrative judge erred in not sustaining specifications B, C,
and D and in mitigating the imposed penalty. PFR File, Tab 1 at 4-12. The
appellant has not filed a response.
3 The administrative judge’s findings on the affirmative defenses are not challenged by
either party on review. We note, however, that subsequent to the administrative judge’s
decision, the Supreme Court issued its decision in Bostock v. Clayton County , 590 U.S.
644 (2020). In Bostock, the Court considered whether 42 U.S.C. § 2000e–2(a)(1), the
Title VII provision outlawing discrimination by private employers “because of” sex,
also prohibits discrimination on the basis of sexual orientation or transgender status.
Bostock, 590 U.S. at 649-62. The Court concluded that it does, holding that when an
employer takes action against an individual for being homosexual or transgender, “[s]ex
plays a necessary and undistinguishable role in the decision, exactly what Title VII
forbids.” Id. at 652. Here, although the administrative judge did not have the benefit of
the Bostock decision, he nonetheless adjudicated the appellant’s sexual orientation
discrimination claim, applying EEOC precedent on the matter.
The administrative judge properly assessed whether the appellant proved his sexual
orientation claim under a “motivating factor” causation standard. ID at 17. While the
private sector provision of Title VII prohibits discrimination “because of” sex, the
provision applicable in the context of Federal employment more broadly requires that
all personnel actions affecting covered employees “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a); Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 20. We
agree with the administrative judge’s finding that the appellant failed to prove this
claim. Because there is no challenge on review to the administrative judge’s analysis of
this affirmative defense and because it is not obvious that application of Bostock would
yield a different result, we decline to readjudicate 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 a party’s substantive rights provides no basis to reverse an initial
decision; 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in
a timely filed petition or cross petition for review.”).
4
ANALYSIS
In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service.4 MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)(ii). To meet
this burden, the agency must prove its charge, establish a nexus between the
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir.
1997). A preponderance of the evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q).
Specification C is sustained.
As alleged by the agency, and found by the administrative judge, the
appellant stated that he “cannot work here with all these women” and made hand
motions describing breasts and hips. ID at 9; IAF, Tab 8 at 14. The
administrative judge found that, although the appellant made the critical
comments and gestures about his female coworkers described in specification C,
they were not objectively inappropriate because they were legitimate commentary
about his female coworkers’ attire. ID at 9-10. In its petition for review, the
agency disagrees. PFR File, Tab 1 at 6-7.
In finding the proven conduct not objectively inappropriate, the
administrative judge credited the testimony of the coworker to whom the
appellant made the comment and gesture (coworker 1) that she found the
appellant’s conduct to be humorous and accurate. ID at 9-10. We do not disturb
4 The agency issued its removal decision after the President signed into law, on June 23,
2017, the Department of Veterans Affairs Accountability and Whistleblower Protection
Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, 131 Stat. 862. However, the
agency did not invoke the VA Accountability Act in removing the appellant, and
therefore the administrative judge properly adjudicated the appeal under chapter 75 of
Title 5. ID at 3; IAF, Tab 8 at 12, 14-17, 56-57.
5
that credibility finding; however, coworker 1’s opinion is not relevant here; the
appellant’s comments were directed not at her but at another coworker. See
Batara v. Department of the Navy , 123 M.S.P.R. 278, ¶¶ 7-8 (2016) (explaining
that a supervisor’s opinions as to the appropriate penalty are insufficient to
overcome the deciding official’s judgment concerning the seriousness of the
misconduct and the appropriateness of the agency-imposed penalty). Similarly,
the appellant’s specific intent in engaging in the conduct is not determinative.
Fernandez v. Department of Agriculture , 95 M.S.P.R. 63, ¶¶ 6-8 (2003)
(explaining that improper conduct is a general charge containing no specific
element of intent, although intent may be relevant to the penalty determination).
When evaluating the appellant’s comment and gestures in the context described
by the administrative judge, and deferring to his credibility determinations
thereto, we find that the specified conduct reflects an inappropriate expression of
the appellant’s focus, not just on his female coworkers’ attire, but on their
physical appearance and body parts.5 ID at 9-10; IAF, Tab 8 at 14. Assuming,
without finding, that an objective person test is appropriate, we find that a
reasonable person in the shoes of the intended target of the appellant’s comments
and gestures would be offended by them.
Further, as the administrative judge found, the appellant was not sharing
his purported concerns with management officials at the time; instead, he spoke
to a coworker about his particular disapproval of his other female coworkers. ID
at 9-10. Assuming again that an objective person test is appropriate, the
appellant’s behavior clearly fell outside of what is appropriate for the workplace.
The appellant’s inappropriate conduct was consistent with the types of disruptive
behavior that the agency prohibited in its code of conduct. IAF, Tab 8 at 137-47.
5 As explained above, the agency did not charge the appellant with sexual harassment or
violating a sexual harassment policy, for which charge the agency would have been
required to prove that the appellant’s conduct was both objectively and subjectively
offensive—that a reasonable person would find his conduct hostile or offensive and that
the victim in fact perceived it to be so. Salazar v. Department of Energy , 88 M.S.P.R.
161, ¶¶ 6, 13 (2001).
6
We note that the code of conduct apprised employees that “disruptive behavior
[was] subject to corrective action up to and including removal/discharge.” Id.
at 137, 147. The appellant, who had recently completed new -employee
orientation, was on notice of this policy and the inappropriateness of his conduct.
Id. at 63, 66-68. Accordingly, we find that the appellant’s comment and gestures
were inappropriate, reverse the administrative judge’s finding otherwise, and
sustain specification C.
We decline to consider the agency’s remaining challenges to the administrative
judge’s findings on the sufficiency of the charge.
The agency also argues that the administrative judge erred in not sustaining
specifications B and D and in denying its request for rebuttal witnesses and
certain evidence. PFR File, Tab 1 at 5-10. As discussed below, we find that the
agency’s penalty of removal was within the tolerable bounds of reasonableness
for the appellant’s misconduct sustained in specifications A and C. Accordingly,
we find it unnecessary to reach a decision on the propriety of the administrative
judge’s findings regarding specifications B and D or to address the agency’s
remaining assertions of error concerning the sufficiency of the charge. See
Gaines v. Department of the Air Force , 94 M.S.P.R. 527, ¶ 6 (2003) (declining to
address the agency’s assertions of error regarding a charge raised on review when
the administrative judge sustained a different charge that warranted the
appellant’s removal).
The appellant’s removal is sustained.
In its petition for review, the agency asserts that its penalty decision should
be sustained. PFR File, Tab 1 at 10-11. The administrative judge determined that
the penalty was clearly unreasonable for the single instance of inappropriate
misconduct that he sustained and the appellant’s significant rehabilitation
potential. ID at 14-15. However, we find that removal is within the bounds of
reasonableness given our finding that the agency proved specifications A and C.
7
When, as here, the agency’s charge is sustained, but some of the underlying
specifications are not sustained, the agency’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within the
parameters of reasonableness. Parker v. U.S. Postal Service , 111 M.S.P.R. 510,
¶ 8, aff’d per curiam , 355 F. App’x 410 (Fed. Cir. 2009). In assessing the
reasonableness of the agency’s penalty, the Board must take into consideration
the failure of the agency to sustain all of its supporting specifications. Id., ¶ 8.
That failure may require, or contribute to, a finding that the agency’s penalty is
not reasonable. Id. In such a case, the Board will look for evidence showing that
the agency would have imposed the same penalty for the sustained specifications.
Id.
Nevertheless, the Board’s function is to assure that management’s
judgment has been properly exercised, not to displace management’s
responsibility or to decide what penalty it would impose. Id. Thus, 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. The Board will consider such factors as the nature
and seriousness of the offense, the employee’s past disciplinary record, the
consistency of the penalty with the agency’s table of penalties, and the
consistency of the penalty with those imposed on others for similar offenses.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
The Board has long held that the most important of the Douglas factors is
the nature and seriousness of the offense. Boo v. Department of Homeland
Security, 122 M.S.P.R. 100, ¶ 18 (2014). Among the considerations included in
this factor is the relationship of the offense to the employee’s duties, position,
and responsibilities, including whether the offense was intentional or was
frequently repeated. Id.
The deciding official determined that the appellant had displayed a pattern
of misconduct, which he found directly interfered with the appellant’s
8
performance of his duties and violated agency policy. IAF, Tab 8 at 15, 59,
Tab 26, Hearing Compact Disc, Day 1 (HCD1), part 5 at 5:00-7:15, 20:00-22:00
(testimony of the deciding official). He considered that the appellant’s position
required contact with veteran patients, caregivers, and family members, and daily
interactions with multiple coworkers. IAF, Tab 8 at 15, 59. This determination
holds even when considering only the sustained misconduct. Although the
misconduct described in specification D is arguably the most serious, the
misconduct described in the sustained specifications was also serious. IAF, Tab 8
at 14; see Wilson v. Department of Justice , 68 M.S.P.R. 303, 310 (1995)
(explaining that disrespectful conduct as manifested by the use of insulting or
abusive language is serious and not conducive to a stable working atmosphere).
More importantly, when considering the misconduct described in
specifications A and C together, the agency proved that the appellant has engaged
in a pattern of inappropriate behavior that was contrary to the level of
professionalism any agency may reasonably expect from its employees. IAF,
Tab 8 at 14, 112, 116; see Redfearn v. Department of Labor , 58 M.S.P.R. 307,
316 (1993) (recognizing that an agency is entitled to expect its employees to
conform to certain accepted standards of civil behavior and decorum). Although
the deciding official did not indicate whether he would have removed the
appellant even if some of the specifications were not sustained, the Board has
previously sustained the penalty of removal when an appellant has engaged in a
pattern of improper conduct. See, e.g., Kirkland-Zuck v. Department of Housing
and Urban Development , 90 M.S.P.R. 12, ¶¶ 18-20 (2001) (upholding the
appellant’s removal for disrespectful conduct that was intentional, repeated,
serious, and directed at supervisors, coworkers, and non-agency personnel over
several months), aff’d per curiam , 48 F. App’x 749 (Fed. Cir. 2002). As
explained below, the appellant has not demonstrated that there are sufficient
mitigating factors that outweigh the seriousness of his misconduct. Cf. Suggs v.
Department of Veterans Affairs , 113 M.S.P.R. 671, ¶¶ 12-15 (2010) (finding that
9
the presence of significant mitigating factors justified reducing the penalty of
removal for one charge of disrespectful conduct to a 30-day suspension), aff’d per
curiam, 415 F. App’x 240 (Fed. Cir. 2011).
We further find that the deciding official, whom the administrative judge
found credible, ID at 20-21, adequately considered the remaining relevant
Douglas factors. The deciding official considered the appellant’s prior
disciplinary record as an aggravating factor. IAF, Tab 8 at 60, 62. We discern no
error with that finding. Barely 1 year prior to the incidents underlying his
removal and while employed at a different agency facility, the appellant was
suspended for 14 days for negligence of duties, inappropriate conduct, and failure
to follow supervisory instructions. IAF, Tab 8 at 111-16. As to the inappropriate
conduct charge, the agency found that the appellant yelled at his supervisor
several times and made statements that she perceived as threatening, among other
specified misconduct. Id. at 111-12. That misconduct was serious. See Davis v.
U.S. Postal Service , 120 M.S.P.R. 457, ¶ 16 (2013) (finding a verbal threat to a
supervisor is “without question” a serious offense); Gaines, 94 M.S.P.R. 527,
¶¶ 11-15 (upholding an appellant’s removal for a single change of inappropriate
behavior towards a supervisor). Moreover, while the deciding official found the
appellant’s 11 years of Federal Government service to be a mitigating factor, he
concluded that the remaining factors supported removal: his lack of remorse,
despite admitting to some of the charged misconduct; the negative effect that his
misconduct had on his work environment; the negative public attention that his
conduct could bring to the agency; that he was clearly on notice that his conduct
violated agency codes of conduct; and that removal was generally the next
appropriate discipline under the circumstances and consistent with the table of
penalties. IAF, Tab 8 at 21-22, 59-65, 70, 120-21, 185; HCD 1, part 5
at 5:00-46:30, part 6 at 1:25-18:35 (testimony of the deciding official).
In finding mitigation appropriate, the administrative judge considered that
the appellant had significant rehabilitative potential based on his “polite and
10
professional” conduct while on detail pending completion of the investigation
into his alleged misconduct. ID at 14-15. Even if the appellant conducted
himself in such a manner during that 10 -week time period, we are not persuaded
that his doing so suggests that he would not continue to make inappropriate
comments and gestures about his coworkers. IAF, Tab 8 at 118; see Crawford v.
Department of Justice , 45 M.S.P.R. 234, 238 (1990) (finding no error in the
deciding official’s decision not to weigh the appellant’s favorable appraisal for
his performance while on detail pending the agency’s removal decision). The
administrative judge erred in disagreeing with the deciding official’s weighing of
this mitigating factor.6 See generally Parker , 111 M.S.P.R. 510, ¶ 9. The
administrative judge’s decision to weigh this factor in the appellant’s favor
cannot substitute for the deciding official’s implicit decision not to give it any
weight.
Accordingly, we find that the agency’s chosen penalty is entitled to
deference because the deciding official considered all of the relevant Douglas
factors and the penalty of removal is not beyond the bounds of reasonableness
under these circumstances. Id., ¶¶ 8-9. We reverse the administrative judge’s
finding otherwise and sustain the agency’s removal decision.
For the foregoing reasons, we grant the agency’s petition for review, affirm
the administrative judge’s finding that the agency proved its charge as modified
to sustain an additional specification of the charge, reverse the administrative
judge’s decision to mitigate the penalty, and sustain the removal penalty.7
6 This case is distinguishable from Purifoy v. Department of Veterans Affairs , 838 F.3d
1367, 1372-73 (Fed. Cir. 2016). There, the Federal Circuit found that the Board should
have deferred to the administrative judge’s findings about the appellant’s potential for
rehabilitation because they were “necessarily intertwined” with her implicit demeanor
based credibility determinations. Id. Here, as explained above, the administrative
judge’s credibility determination is not relevant to determining whether the appellant
exhibited significant rehabilitation potential under these circumstances.
7 The agency has certified on review that, after the initial decision was issued, it
reinstated the appellant to his position pursuant to the administrative judge’s interim
relief order. ID at 23-24; PFR File, Tab 1 at 12. The appellant has not disputed the
11
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
agency’s certification. Following his reinstatement, the agency removed the appellant a
second time, effective April 15, 2019, based on new charges of misconduct. Castlin v.
Department of Veterans Affairs , MSPB Docket No. CH-0714-19-0303-I-1, Initial
Appeal File (0303 IAF), Tab 1 at 8-14. The appellant filed an appeal and, following his
requested hearing, 0303 IAF, Tabs 44, 46, the administrative judge issued an initial
decision affirming the appellant’s removal, Castlin v. Department of Veterans Affairs ,
MSPB Docket No. CH-0714-19-0303-I-1, Initial Decision at 15-35 (Oct. 9, 2019);
0303 IAF, Tab 47. That initial decision became final when neither party filed a petition
for review. See 5 C.F.R. § 1201.113(a) (providing that the initial decision generally
becomes the Board’s final decision 35 days after issuance unless a party files a timely
petition for review). An appeal is not moot if the appellant does not receive all of the
back pay to which he is entitled. Sredzinski v. U.S. Postal Service , 105 M.S.P.R. 571,
¶ 7 (2007). The appellant’s second removal and the decision upholding it did not render
this appeal moot because, prior to our issuance of the instant decision, there remained
an issue as to whether the appellant was entitled to back pay for the period between the
effective dates of his first and second removals. Our decision here resolves that issue in
favor of the agency.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Castlin_Carlton_AT-0752-17-0714-I-1_Final_Order.pdf | 2024-03-12 | CARLTON CASTLIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0714-I-1, March 12, 2024 | AT-0752-17-0714-I-1 | NP |
2,126 | https://www.mspb.gov/decisions/nonprecedential/Styles_Price_Melinda_K_AT-315H-22-0226-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELINDA KATRELL STYLES
PRICE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-22-0226-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
elinda Katrell Styles Price , Augusta, Georgia, pro se.
Joy Warner , and Sophia Haynes , Decatur, 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 her probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant argues that the “majority of [her] time being
away from work was due to health reasons,” and she alleges the agency’s
termination action was the result of discrimination because “[she has] asthma 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).
[is] overweight.” Petition for Review File, Tab 1 at 4-5. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
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 | Styles_Price_Melinda_K_AT-315H-22-0226-I-1_Final_Order.pdf | 2024-03-12 | MELINDA KATRELL STYLES PRICE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-22-0226-I-1, March 12, 2024 | AT-315H-22-0226-I-1 | NP |
2,127 | https://www.mspb.gov/decisions/nonprecedential/Perkins-Moore_Angela_J_CH-0752-22-0184-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA J. PERKINS-MOORE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-22-0184-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rayburn Wilkins , St. Louis, Missouri, for the appellant.
Erin E. Milligan , 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 for lack of jurisdiction her claim of involuntary retirement.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has submitted additional evidence on review in support of
her claim of involuntary retirement. Petition for Review (PFR) File, Tab 1.
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. Chin v. Department of Defense ,
2022 MSPB 34, ¶ 8; Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). The appellant states that she was deprived of the
opportunity to submit evidence to the administrative judge because she received
prompts on e-Appeal Online instructing her not to upload/submit additional
documents and that she would be notified and instructed if/when to submit any
documents. PFR File, Tab 1 at 3-4. We find that the appellant’s alleged belief
that she was not to file evidence was unreasonable considering the administrative
judge’s clear orders to file evidence and/or argument by a deadline of
March 10, 2022. Initial Appeal File (IAF), Tab 3 at 3, Tab 7 at 1. Thus, we find
that the appellant has not shown due diligence under the circumstances. 2
In addition, her new evidence and argument are not material because they
do not amount to nonfrivolous allegations that she was subjected to an appealable
adverse action, even considered in conjunction with her timely raised allegations.
See Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
For instance, she describes a series of actions by the agency going back to
2016 that she alleges were discriminatory, culminating in her decision to retire.
PFR File, Tab 1 at 4-5, 19-20, 29-30. However, accepting her allegations as true,
she has failed to allege circumstances in which a reasonable person in her
position would have found no choice but to retire in response to the agency’s
alleged actions. See, e.g., Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605, ¶ 12 (2009) (stating that, if an employee claims that his
resignation was coerced by the agency creating intolerable working conditions,
the employee must show a reasonable employee in his position would have found
the working conditions so difficult or unpleasant that they would have felt
compelled to resign); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶ 11 (2013) (explaining the jurisdictional requirement in constructive adverse
action appeals that the appellant lacked a meaningful choice).
The appellant also submits additional correspondence with the agency
following its return-to-work letter, including her renewed request for indefinite,
extended leave to undergo back surgery. PFR File, Tab 1 at 27 -31. The appellant
asserts in her sworn petition for review that she provided the “redundant” medical
documentation requested by the agency and that the agency’s denial of her
extended leave request violated Federal law.2 PFR File, Tab 1 at 5, 27-29, 37-38;
IAF, Tab 1 at 8. By stating that the medical documentation was “redundant,”
PFR File, Tab 1 at 29, the appellant does not appear to allege that her medical
documentation differed from the documentation previously submitted,
2 The appellant cites generally to the Americans with Disabilities Act of 1990 and the
Rehabilitation Act. PFR File, Tab 1 at 4, 6.3
id. at 33-34, or responded to the agency’s specific request for documentation
regarding “whether the leave will be a block of time” and “when the need for
leave will end,” id. at 35. The appellant also does not contest the agency’s
statements that she had expended the maximum amount of leave that could be
authorized under the Family and Medical Leave Act and had been absent from
duty for an additional 544.5 hours between April 12, 2020-May 4, 2021. IAF,
Tab 1 at 8; PFR File, Tab 1 at 27, 32. Thus, she has failed to allege facts that
could support a finding that the agency acted improperly in failing to approve her
request for indefinite, extended leave and instructing her to return to duty or face
removal. See Bean, 120 M.S.P.R. 397, ¶ 13 (explaining the jurisdictional
requirement that an involuntary retirement must be precipitated by an improper
agency action); cf. Schultz v. U.S. Navy , 810 F.2d 1133, 1136 (Fed. Cir. 1987)
(finding that a supervisor’s refusal to reconsider an absent without leave charge
after receiving a medical certificate that fully supported the leave request was
improper). Thus, we affirm the administrative judge’s decision that the
appellant’s retirement is not an appealable adverse action over which the Board
has jurisdiction.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Perkins-Moore_Angela_J_CH-0752-22-0184-I-1__Final_Order.pdf | 2024-03-12 | null | CH-0752-22-0184-I-1 | NP |
2,128 | https://www.mspb.gov/decisions/nonprecedential/Cray_Phillip_A_DA-0714-19-0257-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHILLIP A. CRAY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,DOCKET NUMBER
DA-0714-19-0257-I-1
DATE: March 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Nicole Taylor , Esquire, Dallas, Texas, for the appellant.
Sean A. Safdi and Daniel Morvant , Denver, Colorado, 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
affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was a GS-06 Health Technician in the Podiatry Section of the
Surgical Service in the agency’s Dallas Veterans Administration Medical Center.
Initial Appeal File (IAF), Tab 8 at 260. On March 15, 2019, the agency proposed
the appellant’s removal under 38 U.S.C. § 714 based on three charges:
(1) Inappropriate Acceptance of Gifts (one specification); (2) Failure to Follow
Policy (eight specifications); and (3) Inappropriate Conduct (one specification).2
Id. at 67-71. The first charge pertained to a November 27, 2017 technical
education forum that the appellant attended and for which the vendor presenting
the forum paid the appellant’s lodging and transportation expenses. Id. at 67. Six
specifications of Charge 2 pertained to allegedly unauthorized overtime that the
appellant incurred during May and June of 2018, and Specifications 7 and 8
pertained to alleged violations of the agency’s privacy policy and ethics code,
respectively. Id. at 67-68. Charge 3 pertained to patient care that the appellant
provided in one particular instance. Id. at 79. After the appellant responded, on
April 1, 2019, the deciding official issued a decision sustaining Charges 1 and 2
only and removing the appellant effective April 7, 2019. Id. at 17-21, 23.
The appellant filed a Board appeal, contesting the merits of his removal and
raising affirmative defenses of retaliation for equal employment opportunity
activity, violation of due process, and harmful procedural error. IAF, Tab 1,
Tab 20 at 3-4, Tab 33, Initial Decision (ID) at 11 n.5. After a hearing, the
administrative judge issued an initial decision affirming the appellant’s removal.
ID. She sustained Charge 1, pertaining to inappropriate acceptance of gifts, and
the six specifications of Charge 2 pertaining to unauthorized overtime. ID
at 2-11. The administrative judge found that the appellant failed to prove his
affirmative defenses. ID at 11-18.
2 The agency previously issued an identical proposal on November 29, 2018, but
rescinded it in order to allow the appellant to grieve a performance appraisal. IAF,
Tab 8 at 8, 26.2
The appellant has filed a petition for review, arguing that the administrative
judge erred in sustaining the charges.3 Petition for Review (PFR) File, Tab 1
at 1-2. He has attached documentation in support. Id. at 3-10. The agency has
filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the agency proved its charge
by substantial evidence.
In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the
agency bears the burden of proving its charges by substantial evidence.
38 U.S.C. § 714(d)(2)(a). At this stage of the appeal, only Charge 1 and
Charge 2, Specifications 1-6 are still in contention.
Under Charge 1, Inappropriate Acceptance of Gifts, the agency alleged that
the appellant accepted an unauthorized gift from the Musculoskeletal Transplant
Foundation (MTF), an approved agency vendor, in violation of 5 C.F.R. § 2635,
subpart B, when MTF expensed $848.71 to cover the cost of the appellant’s
airfare, lodging, and transportation to attend a technical education forum. IAF,
Tab 8 at 67. The administrative judge found that MTF was a “prohibited source”
within the meaning of 5 C.F.R. § 2635.203(d) and that the appellant accepted a
gift, in the form of travel and lodging, from that prohibited source. ID at 4-5.
Although these facts are essentially undisputed, the administrative judge
considered the appellant’s argument that his supervisor authorized him to attend
the MTF forum and was aware that MTF covered the travel costs for attendance.
ID at 5. However, considering the record as a whole, and applying the factors set
forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987), she
credited the supervisor’s testimony that the appellant did not ask for her
3 The appellant does not contest the administrative judge’s findings on the affirmative
defenses he raised below—allegations of reprisal for equal employment opportunity
activity, harmful error pertaining to a collective bargaining agreement provision, and a
due process violation. We therefore decline to revisit these findings, which appear
correct on their face. ID at 11-18; see 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for review.”).3
permission to attend the event, she never authorized the appellant to accept
payment of travel and lodging expenses from MTF, and she did not learn of his
attendance until after the fact. ID at 5-7.
On petition for review, the appellant argues that the administrative judge
failed to consider evidence documenting that his supervisor knew that he attended
the MTF technical education forum. PFR File, Tab 1 at 1. In support of his
argument, he cites to an excerpt from his fiscal year 2017 performance evaluation
as well as a performance self -assessment and request for quality step increase.
Id. at 1, 6-7. However, our review of these documents reveals no mention of the
November 2017 MTF forum. Although these documents tend to show that the
appellant’s supervisor was aware that he had attended multiple educational
conferences in the past year, mention of the MTF forum in particular is
conspicuously absent. Id. at 6-7. There is no basis to conclude from these
documents that the appellant’s supervisor was aware that he attended the MTF
forum, much less that she authorized him to accept reimbursement from MTF for
travel and lodging.4 For the reasons explained in the initial decision, we agree
with the administrative judge that the agency proved Charge 1 by substantial
evidence. ID at 4-7.
Under Charge 2, Failure to Follow Policy, Specifications 1-6, the agency
alleged that the appellant violated Veterans Administration North Texas
Healthcare System (VANTHCS) Memorandum No. 05-04 by performing overtime
work that had not been approved in advance. IAF, Tab 8 at 68-69. Specifically,
the agency alleged that the appellant worked unauthorized overtime as a sitter in
the hospital’s Nursing Service on six separate dates in May and June 2018, for a
total of 36 hours. Id. In her initial decision, the administrative judge found that
4 Even if the appellant’s supervisor did purport to authorize him to accept
reimbursement from MTF, we would still sustain the charge because it does not appear
to us that such purported authorization in this case would constitute a valid exception to
the general rule of 5 C.F.R. § 2635.202. Cf. 5 C.F.R. § 2635.204 (setting forth
exceptions to the prohibition for acceptance of certain gifts). 4
VANTHCS Memorandum No. 05-04 provides in relevant part that “overtime must
be requested and approved in advance of work being performed,” that supervisors
are the requesting officials for overtime, and the Service Chiefs are the approving
officials for overtime. ID at 8; IAF, Tab 8 at 234, 242. The administrative judge
found, and it appears to be undisputed, that the appellant’s supervisor did not
specifically approve the overtime in question. ID at 8. The appellant, however,
argued that his supervisor gave blanket approval for overtime work as long as it
was done outside the Podiatry Section. Id. The administrative judge, however,
found that no such blanket approval existed, and she sustained the specifications.
ID at 9-10.
On petition for review, the appellant appears to contest one of the
administrative judge’s findings that supported her ultimate conclusion about the
blanket approval, i.e., that an individual’s overtime is paid for by the service to
which he is officially assigned regardless of whether that overtime is performed
in a different service. ID at 9. Specifically, the appellant argues that Part III of
the agency’s Request for and Authorization of Overtime Work form indicates that
the service in which the individual is employed receives reimbursement from the
service in which the employee renders overtime. PFR File, Tab 1 at 2, 4-5. We
have examined Part III of these forms, but we find them to be somewhat
ambiguous. Part III seems to show that funds can be transferred from one “time
and labor unit” to another within the hospital incidental to overtime worked, but
it does not specify the conditions required for this to occur. Nor, as the agency
points out, does it indicate that any such transfer actually occurred in this case
because Part III of the forms has been left blank. PFR File, Tab 1 at 4-5, Tab 3
at 10 n.1. Furthermore, in reaching her conclusion, the administrative judge also
considered the agency’s written overtime policy,5 the credible testimony of the
5 We note that the appellant’s supervisor is a Section Chief and not a Service Chief.
IAF, Tab 8 at 44. It would therefore appear to be outside her authority under
VANTHCS Memorandum No. 05-04 to approve overtime, although she would be an
appropriate official to request overtime. IAF, Tab 8 at 242. 5
appellant’s supervisor, and the appellant’s recent detail to a non-patient care
position. ID at 9-10. Therefore, even if the appellant has identified some
evidence on review to support his allegation of blanket overtime approval outside
the Podiatry Section, we find that there is still substantial evidence to support the
agency’s allegation that the overtime at issue was unapproved. See 5 C.F.R.
§ 1201.4(p) (defining “substantial evidence”).
Finally, the appellant argues that the administrative judge should not have
relied on Hillen in assessing his credibility because, unlike the appellant in
Hillen, he never took a polygraph test. PFR File, Tab 1 at 1. He also appears to
argue that the administrative judge impugned his character by applying the Hillen
factors to his case. Id. We disagree. The instant appeal does not involve a
polygraph examination, but the holding in Hillen still applies, i.e., that 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) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its
consistency with other evidence; (6) the inherent improbability of the witness’s
version of events; and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
Furthermore, not every Hillen factor will necessarily be relevant in every case.
For instance, when there is no evidence in the record pertaining to the character
of a witness, this will not be a relevant factor for the administrative judge to
consider. See Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489,
¶¶ 14-15 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Like the
administrative judge in Mithen, the administrative judge in this case does not
appear to have noted any pertinent character evidence. Therefore, despite
character being listed as a potentially relevant credibility factor under Hillen, the6
appellant’s character does not appear to have factored into the administrative
judge’s decision.
We have reviewed the remainder of the documentary evidence that the
appellant has submitted with his petition, and we find that it is not material to the
outcome of the appeal. PFR File, Tab 1 at 3, 8-10.
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence regarding whether the agency’s error in reviewing
the proposed removal for substantial evidence was harmful.
The agency’s deciding official sustained the appellant’s removal based on
his conclusion that substantial evidence supported Charge 1 and Charge 2. IAF,
Tab 8 at 18. After the initial decision in this case was issued, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez v.
Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (2021), in which it
determined that the agency erred by applying a substantial evidence burden of
proof to its internal review of a disciplinary action under 38 U.S.C. § 714. The
court found that substantial evidence is the standard of review to be applied by
the Board, not the agency. Id. at 1298-1300. Instead, the agency’s deciding
official must use a preponderance of the evidence burden of proof to
“determine[]” whether “the performance or misconduct . . . warrants” the action
at issue. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). The holding in
Rodriguez applies to all cases pending with the Board, regardless of when the
events at issue took place. Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of
Rodriguez, and therefore were unable to address its impact on the appeal. We
therefore must remand this case for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a7
different conclusion from the one it would have reached in the absence or cure of
the error. Id., ¶ 23; 5 C.F.R. § 1201.4(r). The appellant bears the burden of
proving his affirmative defenses by preponderant evidence. Semenov,
2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the
administrative judge shall provide the parties with an opportunity to present
evidence and argument, including holding a supplemental hearing, addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24.
On remand, the administrative judge should apply the Douglas factors and review
the agency’s penalty selection. 6
The administrative judge found that because the agency proved the charge
by substantial evidence, the removal penalty must be affirmed. ID at 17-18.
After the initial decision was issued in this case, the Federal Circuit issued its
decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the Federal Circuit determined that the agency and the Board
must consider and apply the Douglas factors in selecting and reviewing the
penalty under 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26; see Semenov,
2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s
decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the
Douglas factors in reviewing the penalty in an action taken under 38 U.S.C.
§ 714).
The administrative judge and the parties did not have the benefit of
Connor, and thus were unable to address its impact on this appeal. Therefore,
remand is also required regarding this issue. Connor, 8 F.4th at 1326-27. On
remand, the administrative judge should permit the parties to submit additional
evidence and argument on the penalty issue, to include holding a supplemental
hearing on the penalty, if requested. See Semenov, 2023 MSPB 16, ¶ 50. In
6 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
provided a nonexhaustive list of factors relevant to penalty determinations.8
reviewing the penalty, the administrative judge should determine whether the
agency proved by substantial evidence that it properly applied the relevant
Douglas factors and whether the agency’s penalty selection was reasonable and, if
not, remand the appellant’s removal to the agency for a new removal decision.
Id. (citing Connor, 8 F.4th at 1326-27; Sayers v. Department of Veterans Affairs ,
954 F.3d 1370, 1375-76, 1379 (Fed. Cir. 2020)). If the appellant does not prevail
on the aforementioned affirmative defense on remand, and the administrative
judge affirms the agency’s choice of penalty, the administrative judge may adopt
prior findings concerning the agency’s charges and previously adjudicated
affirmative defenses in their remand initial decision.7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 We recognize that the administrative judge who oversaw the proceedings below and
issued the initial decision is no longer with the Board. This does not, however,
preclude the administrative judge assigned to this case on remand from incorporating
the prior administrative judge’s findings, where appropriate. See Lin v. Department of
the Air Force, 2023 MSPB 2, ¶ 24. 9 | Cray_Phillip_A_DA-0714-19-0257-I-1__Remand_Order.pdf | 2024-03-12 | null | DA-0714-19-0257-I-1 | NP |
2,129 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Renee_PH-1221-16-0453-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE NELSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-1221-16-0453-W-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renee Nelson , Silver Spring, Maryland, pro se.
David W. Claypool , Esquire, Silver Spring, Maryland, for the agency.
Paul N. Bley and Lauren Ruby , Falls Church, 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 her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant made a nonfrivolous allegation that one of her disclosures
was protected, we AFFIRM the initial decision.
BACKGROUND
The appellant is a GS-12 Program Analyst stationed at the agency’s
National Museum of Health and Medicine (NMHM). Initial Appeal File (IAF),
Tab 1 at 1, Tab 14 at 8. She filed an IRA appeal with the Board and did not
request a hearing. IAF, Tab 1 at 1, 10-12. The administrative judge issued an
order notifying the appellant that the Board might not have jurisdiction over her
appeal and informing her of her jurisdictional burden. IAF, Tab 9 at 1-6. He
ordered the appellant to file a statement detailing the elements of her claim,
including a list of each protected activity and personnel action that she was
claiming. Id. at 7-8. The appellant responded by filing more than 400 pages of
documentation that she previously submitted to the Office of Special Counsel
(OSC) and explaining that the information that the administrative judge requested
was contained therein. IAF, Tab 11.
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction on the bases that the2
appellant failed to make a nonfrivolous allegation that her claimed activity was
protected under the Whistleblower Protection Act (WPA), and that she failed to
identify any personnel action in which that activity might have been a
contributing factor. IAF, Tab 15, Initial Decision (ID) at 3-6. Specifically, he
found that the appellant’s OSC complaint did “not clearly identify what alleged
protected disclosures she made, when she made them, and to whom, nor what
personnel actions allegedly resulted.” ID at 3. However, he was able to glean
from OSC’s close-out letter that the appellant was primarily alleging reprisal for
disclosures that she made in a March 2014 letter to the Commanding General of
the U.S. Army Medical Research and Materiel Command (MRMC). ID at 3; IAF,
Tab 4 at 41, Tab 11, Subtab B at 16-19. The administrative judge found that the
letter chiefly concerned allegations of discrimination and harassment, which are
outside the purview of the Board’s IRA jurisdiction, as well as personal
complaints and grievances that did not rise to the level of whistleblowing activity.
ID at 3-4. He further found that the appellant’s claimed personnel actions either
predated the disclosure or did not constitute personnel actions within the meaning
of 5 U.S.C. § 2302(a)(2)(A). ID at 4-6.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1 at 2-29. Along with her
petition, the appellant has filed more than 500 pages of documentation that she
characterizes as new and material evidence. Id. at 2, 6-8, 30-536. The agency
has responded to the petition for review, PFR File, Tab 3, and the appellant has
filed a reply to the agency’s response, PFR File, Tab 4. After the close of the
record on review, the agency moved for leave to submit a motion to reject the
appellant’s reply as untimely. PFR File, Tab 5. The appellant opposes the
agency’s motion. PFR File, Tab 7.3
ANALYSIS2
First we address the agency’s motion for leave to oppose the appellant’s
reply as untimely. PFR File, Tab 5. The agency filed its response to the petition
for review electronically on September 14, 2017, PFR File, Tab 3, and it appears
that the appellant filed her reply by mail 14 days later on September 28, 2017,
PFR File, Tab 4 at 17. There is only a 10-day window to file a reply to a
response to a petition for review, but this time period is measured from the date
the response is served—not the date it is filed. 5 C.F.R. § 1201.114(e). The
appellant was not a registered e-filer, and there appears to be a dispute of fact
about the date that the agency served her its response by mail. PFR File, Tab 7;
see 5 C.F.R. § 1201.4(j), (l) (date of service by mail is generally determined by
postmark). Additionally, 5 C.F.R. § 1201.23 provides that 5 days are added to a
party’s deadline for responding to a document served on the party by mail.
However, in the interest of adjudicatory efficiency, we decline to resolve this
dispute because the outcome of this appeal would be the same regardless of
whether we granted the agency’s motion. Therefore, the motion is denied.
The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor 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).
In this case, neither below nor on review has the appellant clearly
explained what protected disclosures or activities she is claiming or what
personnel actions she is alleging. In particular, she has not provided any such
information in list format as the administrative judge directed her to do. IAF,
2 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.4
Tab 9 at 7-8. Because the alleged agency wrongdoing that she identifies all
seems to be directed at her, it is difficult to discern what she is claiming as a
protected disclosure and what she is claiming as a personnel action. The Board
does not expect pro se appellants to plead issues with the precision of an attorney,
Goodnight v. Office of Personnel Management , 49 M.S.P.R. 184, 187 (1991), but
its ability to address a pro se appellant’s claims may be limited to the extent that
her claims are unclear.
On petition for review, the appellant attempts to clarify her claims by
presenting a timeline of events. PFR File, Tab 1 at 8-10. The appellant states
that she began her protected activity in the spring of 2013 by making complaints
to the NMHM Director and Chief Administrator. Id. at 8. However, the appellant
does not explain the nature of these complaints, and to the extent that they are in
writing, she has not provided us sufficient information to locate them in the
record. See 5 C.F.R. § 1201.114(b) (providing that a petition for review must be
supported by specific references to the record). We therefore find that she has
not made a nonfrivolous allegation that these complaints constituted protected
disclosures.
Next, the appellant claims that she sent emails to the NMHM Director and
Chief Administrator on October 1, 2013, November 20, 2013, and January 23,
2014, concerning violations of her privacy rights and contractors overstepping
their authority and violating ethical rules. PFR File, Tab 1 at 5-6, 8-9. We have
located these emails in the record and reviewed them, but we find that they do not
even arguably evidence any category of wrongdoing under 5 U.S.C. § 2302(b)(8).
IAF, Tab 11, Subtab B at 31-36. Rather, they concern workplace disagreements,
alleged rude behavior by coworkers, and allegedly unfair criticism that the
appellant received from her supervisor and others. Id. We find that the appellant
has not made a nonfrivolous allegation that these disclosures were protected. See
Horton v. Department of the Navy , 60 M.S.P.R. 397, 401-02 (1994), aff’d,
66 F.3d 279 (Fed. Cir. 1995).5
Next, the appellant identifies a February 24, 2014 letter that she sent to the
MRMC Personnel Advisory Center, requesting intervention and information on
how to file a complaint against the agency and the contractor. PFR File, Tab 1
at 9. We have reviewed this letter, and we find that it is of the same general
nature as the three letters discussed in the preceding paragraph. IAF, Tab 11,
Subtab B at 2. The appellant stated in this letter that the agency was violating her
rights under the Privacy Act, 5 U.S.C. § 552a, but she provided no explanation of
her bare assertion. We therefore find that she has not made a nonfrivolous
allegation that she reasonably believed that this disclosure evidenced a violation
of law or any other form of wrongdoing under 5 U.S.C. § 2302(b)(8). See
Benton-Flores v. Department of Defense , 121 M.S.P.R. 428, ¶ 11 (2014) (stating
that a bald allegation of wrongdoing without any details is insufficient to
constitute a nonfrivolous allegation of a protected disclosure); see, e.g., Ormond
v. Department of Justice , 118 M.S.P.R. 337, ¶ 11 (2012).
The appellant also identifies letters dated March 11, May 1, and July 14,
2014, that she asserts she sent to the MRMC Commanding General. PFR File,
Tab 1 at 9. We have located and reviewed these letters as well. IAF, Tab 11,
Subtab B at 16-29. These three letters largely pertain to the same workplace
disputes and allegedly unfair criticism as do the other letters described above, as
well as discrimination, reasonable accommodation, and equal employment
opportunity (EEO) matters that, as the administrative judge correctly found,
provide no basis for jurisdiction under the WPA. ID at 4; see Applewhite v.
Equal Employment Opportunity Commission , 94 M.S.P.R. 300, ¶ 13 (2003); see
also McCray v. Department of the Army , 2023 MSPB 10, ¶¶ 20-22; Edwards v.
Department of Labor , 2022 MSPB 9, ¶¶ 21-23. However, we find that the
March 11, 2014 letter also contains one allegation of a violation of law that may
have constituted a protected disclosure. Specifically, the appellant alleged that
her supervisor sent a copy of her official personnel record to a contractor. IAF,
Tab 11, Subtab B at 17. Construing this pro se appellant’s claim generously, we6
find that she made a nonfrivolous allegation that she reasonably believed the
agency violated 5 U.S.C. § 552a(b), which generally prohibits the disclosure of
records such as personnel files without the consent of the person to whom the
records pertain. See Huffman v. Office of Personnel Management , 92 M.S.P.R.
429, ¶ 13 (2002) (“Any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation of a reasonable belief should be resolved in favor of” a
finding that jurisdiction exists). Our conclusion is further supported by the report
of an agency investigator who found the appellant’s supervisor did, in fact,
disclose a portion of the appellant’s personnel file to a contractor in violation of
the Privacy Act. IAF, Tab 14 at 40.
Nevertheless, we agree with the administrative judge that the appellant has
not identified any personnel action to which the agency subjected her after
March 11, 2014. ID at 4-6. The administrative judge acknowledged that, after
the Commanding General received her letter, the agency conducted an Army
Regulation 15-6 Investigation. ID at 3. However, as the administrative judge
correctly found, neither the conduct of the investigation nor the report of
investigation constituted “personnel actions” under 5 U.S.C. § 2302(a)(2)(A).3 ID
at 5; see Sistek v. Department of Veterans Affairs , 955 F.3d 948, 955 (Fed. Cir.
2020) (concluding that “retaliatory investigations, in and of themselves, do not
qualify as personnel actions” under the whistleblower protection statutory
scheme). We also find that the appellant did not nonfrivolously allege that the
investigation was pretext for gathering evidence to use to retaliate against her.
3 The appellant herself requested the investigation. IAF, Tab 11, Subtab B at 22. We
note that the National Defense Authorization Act for Fiscal Year 2018, Pub. L. 115-91,
131 Stat. 1283 (2017), amended 5 U.S.C. § 1214 by adding a provision authorizing the
Special Counsel to petition the Board for damages reasonably incurred during a
retaliatory investigation. 5 U.S.C. § 1214(i). However, this provision did not alter the
definition of “personnel action” under 5 U.S.C. § 2302(a)(2)(A), and in fact preserves
an explicit distinction between investigations and personnel actions. Id.7
See Sistek, 955 F.3d at 956-57; Mattil v. Department of State , 118 M.S.P.R. 662,
¶ 21 (2012); Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 7 (2007).4
The appellant lists numerous other allegedly retaliatory actions that the
agency took against her, including violating her privacy rights, sabotaging her
EEO complaint, and interfering with her workers’ compensation claim. PFR File,
Tab 1 at 5, 12-28. But the appellant’s arguments and assertions are limited in
terms of the details necessary to determine whether these matters, either alone or
together, could constitute the kind of personnel action covered under the
whistleblower statute. See 5 U.S.C. § 2302(a)(2)(A) (listing covered personnel
actions); see Rebstock v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 12 (2015) (agreeing with the administrative judge that vague, conclusory, and
unsupported allegations of a personnel action do not satisfy the Board’s
nonfrivolous pleading standard); Godfrey v. Department of the Air Force ,
45 M.S.P.R. 298, 202 (1990) (finding that “generalized assertions and fears
unsupported by reference to any specific matter,” are insufficient to establish a
personnel action). In addition, even if we were to assume that the appellant
nonfrivolously alleged that these matters constituted at least one covered
personnel action, the appellant has not explained with sufficient clarity when the
purported personnel actions happened so that we can determine if they occurred
after the appellant’s March 11, 2014 disclosure, and therefore could have been
taken in reprisal for the disclosure.5 Sherman v. Department of Homeland
Security, 122 M.S.P.R. 644, ¶ 8 (2015) (finding that a disclosure that occurred
4 In the initial decision, the administrative judge cited to the agency’s evidence in
analyzing whether the investigation constituted a nonfrivolous allegations of a
personnel action. ID at 5. After the issuance of the initial decision, the Federal Circuit
clarified, in Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir.
2020), that “[t]he Board may not deny jurisdiction by crediting the agency’s
interpretation of the evidence as to whether the alleged disclosures fell within the
protected categories or whether the disclosures were a contributing factor to an adverse
personnel action.” To the extent that the administrative judge improperly considered
the agency’s evidence, any such error is harmless. Based on the appellant’s allegations
alone, we find that she has not nonfrivolously alleged that the investigation was a
personnel action.8
after a personnel action could not have been a contributing factor in the personnel
action); Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 27
(2011) (same).
The appellant also makes several arguments that appear to relate to whether
the agency could prove, by clear and convincing evidence, that it would have
taken personnel actions against her notwithstanding her disclosures. PFR File,
Tab 1 at 2-4, 11-12, 16, 20, 27-29. However, the Board will reach this issue only
after the appellant has established jurisdiction over her appeal and proven her
prima facie case, which, for the reasons explained above and in the initial
decision, she has not. See Schmittling v. Department of the Army , 219 F.3d 1332,
1336-37 (Fed. Cir. 2000); Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 28 (2016).
Finally, the appellant asserts, without explaining, that the 506 pages of
documentation that she submitted with her petition for review were unavailable
before the close of the record below and support her allegations of reprisal. PFR
File, Tab 1 at 2, 6-8, 30-536. As an initial matter, absent a specific explanation
of how any particular portion of this voluminous documentation might affect the
outcome of this appeal, the Board will not pore through all of it in search of an
answer. See Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 10
(2015). Furthermore, to the extent that we have looked over this documentation,
we find that it consists entirely of the appellant’s own written arguments,
documents that predate the initial decision, documents already contained in the
case file, and copies of handbooks, statutes, and regulations. PFR File, Tab 1
at 30-546; see Vores v. Department of the Army , 109 M.S.P.R. 191, ¶ 9 (2008)
(determining that evidence predating the close of the record was not shown to
have been previously unavailable), aff’d, 324 F. App’x 883 (Fed. Cir. 2009);
5 The appellant provides several other dates in her petition for review which seem to
correspond to dates on which she alleges that she made disclosures, not the dates on
which she suffered allegedly retaliatory personnel actions. E.g., PFR File, Tab 1 at 5-6,
8-11, 14-15, 23.9
Borowski v. Department of Agriculture , 40 M.S.P.R. 372, 376 (1989) (finding that
argument does not constitute evidence); Doe v. National Security Agency ,
6 M.S.P.R. 555, 559 (1981) (recognizing that copies of statutes and regulations
are not evidence), aff’d sub nom. Stalans v. National Security Agency , 678 F.2d
482 (4th Cir. 1982); Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980) (explaining that evidence that is already a part of the record is not new).
For these reasons, we find that the appellant has not established the existence of
any new and material evidence to provide a basis for granting the petition for
review under 5 C.F.R. § 1201.115(d).
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 14 | Nelson_Renee_PH-1221-16-0453-W-1__Final_Order.pdf | 2024-03-12 | RENEE NELSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-16-0453-W-1, March 12, 2024 | PH-1221-16-0453-W-1 | NP |
2,130 | https://www.mspb.gov/decisions/nonprecedential/Lawson_Tavares_V_NY-315H-22-0082-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAVARES V. LAWSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-315H-22-0082-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tavares V. Lawson , Bronx, New York, pro se.
Matthew J. Geller , Esquire, West Point, New York, 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 of an involuntary resignation as untimely filed without good
cause shown. On petition for review,2 he argues that he was not able to timely
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 provides additional evidence on review. Petition for Review File, Tab 1
at 3-9. He has not explained how this evidence is relevant to the timeliness issue, and
some of the documents are already part of the record and, therefore, are not new. Initial
Appeal File, Tabs 2, 6; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980) (stating that evidence that is already a part of the record is not new); Russo v.
file his appeal due to difficulties with the Board’s e-Appeal system and that the
agency forced his resignation. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
Thus, the appellant’s evidence does not provide a basis to disturb the initial decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Lawson_Tavares_V_NY-315H-22-0082-I-1__Final_Order.pdf | 2024-03-12 | TAVARES V. LAWSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-315H-22-0082-I-1, March 12, 2024 | NY-315H-22-0082-I-1 | NP |
2,131 | https://www.mspb.gov/decisions/nonprecedential/Knight_Aretha_AT-0752-21-0274-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARETHA KNIGHT,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-0752-21-0274-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aretha Knight , Memphis, Tennessee, pro se.
Jennifer E. Bugaj , Esquire, Jeffrey D. Iles , and Pamela D. Langston-Cox ,
Esquire, Chicago, Illinois, 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
affirmed her 15-day suspension. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review2 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
2 The appellant attaches to her petition for review a copy of a June 5, 2019 tech support
request for a Windows repair issue. Petition for Review File, Tab 1 at 8. She has not
shown that the evidence was unavailable before the record was closed before the
administrative judge despite her due diligence or that it is of sufficient weight to
warrant an outcome different from that of the initial decision. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980 ) (stating that 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); Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (explaining that the Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision). Thus, we find that it does not provide a basis
for granting the appellant’s petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Knight_Aretha_AT-0752-21-0274-I-1_Final_Order.pdf | 2024-03-12 | ARETHA KNIGHT v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0752-21-0274-I-1, March 12, 2024 | AT-0752-21-0274-I-1 | NP |
2,132 | https://www.mspb.gov/decisions/nonprecedential/Ludicke_Michael_AT-0752-22-0387-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL LUDICKE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-22-0387-I-1
DATE: March 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Smith , Esquire, Warner Robins, Georgia, for the appellant.
Jonathan Lee Simpson , Esquire, Robins Air Force Base, 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 his removal appeal for lack of jurisdiction based on his waiver of
Board appeal rights as a part of the parties’ last chance agreement. On petition
for review, the appellant reasserts his arguments from below that he did not
voluntarily enter into the last chance agreement, that the language contained 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).
the last chance agreement regarding misconduct was vague, and that the agency
violated his due process rights in removing him. 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).2
2 We agree with the administrative judge that the appellant failed to prove that he was
in compliance with the parties’ last chance agreement, that the agency acted in bad
faith, and that he did not voluntarily enter the agreement. Initial Appeal File
(IAF), Tab 8, Initial Decision (ID) at 3-5; see Stewart v. U.S. Postal Service , 926 F.2d
1146, 1148-49 (Fed. Cir. 1991). The appellant also argued below that the agency
violated his due process rights because it did not inform him that he breached the last
chance agreement prior to his removal, but the initial decision does not include a
discussion of this argument. IAF, Tab 5 at 6-7; ID at 3-5. In any event, this argument
is without merit. The appellant was made aware that the agency was displeased with his
sleeping on duty, that such conduct implicated the parties’ last chance agreement, and
that it could lead to disciplinary action, including removal. IAF, Tab 7 at 11. To the
extent the appellant was owed procedural process pursuant to 5 U.S.C. § 7513(b), the
appellant expressly agreed in the last chance agreement that, if he engaged in any form
of misconduct, he “may be summarily removed from employment immediately without
further notice or the benefit of the procedures that ordinarily apply” to an adverse
action. IAF, Tab 7 at 24. As such, the appellant waived his procedural due process
rights. See generally Flores v. Department of Defense , 121 M.S.P.R. 287, ¶ 6 (2014 )
(stating that, while a tenured Federal employee has a due process right to respond to a
proposed removal, that right may be waived, provided the waiver is knowing, voluntary,
and intelligently made). Accordingly, the record does not establish that the agency2
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:
violated the appellant’s due process rights, and his argument to the contrary does not
provide a basis to disturb the initial decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Ludicke_Michael_AT-0752-22-0387-I-1__Final_Order.pdf | 2024-03-12 | MICHAEL LUDICKE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-22-0387-I-1, March 12, 2024 | AT-0752-22-0387-I-1 | NP |
2,133 | https://www.mspb.gov/decisions/nonprecedential/Derr_Patricia_K_DC-0432-17-0511-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA KANE DERR,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0432-17-0511-I-1
DATE: March 12, 2024
THIS ORDER IS NONPRECEDENTIAL1
Patricia Kane Derr , Reston, Virginia, pro se.
David Crane , Esquire, Washington, D.C., 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
affirmed her removal for unacceptable performance under 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 Washington Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant served as a GS-14 Program Management Analyst in the
agency’s Office of Inspector General. Initial Appeal File (IAF), Tab 4 at 15. In
this position, her performance plan was comprised of five critical elements,
consisting of the following: (1) customer service, (2) communications,
(3) planning, (4) field work, and (5) reporting results. IAF, Tab 5 at 94-110. Her
performance was rated on a five-tier scale, with level 1 being the lowest level and
level 5 being the highest. Id. In November 2015, the agency provided the
appellant with a copy of the critical elements and performance standards by which
she would be evaluated during the appraisal period from October 1, 2015, to
September 30, 2016. Id. at 92-110.
On June 23, 2016, the appellant’s first-level supervisor issued her a
notification of unacceptable performance and an opportunity to improve, more
commonly known as a performance improvement plan or PIP. Id. at 4-14. Her
supervisor stated that the appellant’s performance did not meet the marginal level
(level 2) of performance in critical element 1 (customer service), critical
element 2 (communications), and critical element 4 (field work), and provided
specific examples of her deficiencies under each element. Id. at 4-6, 7-9, 10-11.
The agency prorated the appellant’s performance standards for the time period of
the PIP and informed her of what she was required to do under each critical
element to meet the marginal level of performance. Id. at 6-7, 9-10, 11-13. The
appellant was afforded 90 days, beginning on June 23, 2016, and ending on
September 21, 2016, to improve her performance to at least the marginal level.
Id. at 14. Due to the appellant’s absences during that period, and at her request,
the PIP was extended until October 6, 2016. IAF, Tab 4 at 26.
On December 1, 2016, the appellant’s first-level supervisor proposed her
removal for unacceptable performance. Id. at 26-30. She found that the appellant
failed to achieve at least the marginal level of performance in critical element 2
(communications) and critical element 4 (field work). Id. at 26-29. On April 6,2
2017, after considering the appellant’s reply to the proposal, the appellant’s
second-level supervisor issued a decision imposing the removal. Id. at 16-25.
The appellant filed the instant appeal challenging the removal. IAF, Tab 1.
After conducting the appellant’s requested hearing, the administrative judge
issued an initial decision in which he affirmed her removal. IAF, Tab 78, Initial
Decision (ID). He found that the agency proved the charge of unacceptable
performance and that the appellant failed to prove her affirmative defenses of age
and sex discrimination, equal employment opportunity (EEO) retaliation,
whistleblower reprisal, or harmful procedural error. ID at 7-21.
The appellant has petitioned for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the appellant
argues that the administrative judge should have considered her performance prior
to the period when the agency placed her on a PIP. PFR File, Tab 1 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly concluded that, under the law in effect at the
time, the agency satisfied its burden to prove that the appellant’s performance
was unacceptable.
At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
(OPM) approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and critical elements of her position; (3) the appellant’s performance standards
are valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the
inadequacies in her performance during the appraisal period and gave her an
adequate opportunity to demonstrate acceptable performance; and (5) after an
adequate improvement period, the appellant’s performance remained unacceptable
in at least one critical element. Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 13; see 5 U.S.C. § 7701(c)(1)(A). The administrative judge3
addressed each of these elements in turn and found that the agency carried its
burden with respect to all of them. ID at 7-16. These findings are supported by
the record, and the parties do not challenge them on review. See 5 C.F.R.
§ 1201.115 (“The Board normally will consider only issues raised in a timely
filed petition or cross petition for review.”). Accordingly, we decline to disturb
the administrative judge’s findings in this regard.
Remand is necessary to afford the parties an opportunity to provide evidence and
argument concerning whether the appellant’s placement on the PIP was proper.
After the initial decision in this case was issued, the U.S. Court of Appeals
for the Federal Circuit issued a precedential decision in Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021), holding
that an agency must prove an additional element under chapter 43. Lee,
2022 MSPB 11, ¶ 14. Specifically, an agency must show by substantial evidence
that the appellant’s performance leading up to the PIP was unacceptable. Santos,
990 F.3d at 1360-61, 1363.
Following the issuance of Santos, the Board issued an Opinion and Order in
Lee, 2022 MSPB 11, ¶ 15, which incorporated this holding in Santos, setting forth
the agency’s burden of proof as follows: to defend an action under chapter 43,
the agency must prove by substantial evidence that: (1) OPM approved its
performance appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(c)(1); (4) the appellant’s performance during the appraisal period was
unacceptable in one or more critical elements; (5) the agency warned the
appellant of the inadequacies in her performance during the appraisal period and
gave her an adequate opportunity to demonstrate acceptable performance; and
(6) after an adequate improvement period, the appellant’s performance remained
unacceptable in at least one critical element.4
Although the record contains evidence indicating that the appellant’s
performance was unacceptable prior to the initiation of the PIP, IAF, Tab 5 at 4,
Tab 6 at 65, we nevertheless must 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 should accept argument and evidence on this issue and
hold a supplemental hearing, if appropriate. Id., ¶ 17. The administrative judge
should then issue a new initial decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate in the remand initial decision his prior
findings on the other elements of the agency’s case. See id.
On remand, the administrative judge should make new findings on the appellant’s
affirmative defenses.
The appellant presented claims of age and sex discrimination, EEO
retaliation, whistleblower reprisal, and harmful procedural error, which the
administrative judge found unproven. ID at 16-21. The parties do not challenge
the substance of this determination on review.2
2 The appellant generally challenges the credibility of her first- and second-level
supervisors regarding the poor quality of her performance, including asserting that they
lied when they testified that they were unaware of her age and that the record contains
conflicting evidence regarding whether her performance was unacceptable. PFR File,
Tab 1 at 5-6. The administrative judge found that the appellant’s supervisors testified
credibly that the appellant’s performance was unacceptable while on the PIP. ID
at 13-16. Further, he found that the appellant presented no evidence that her age was a
factor in her removal. ID at 17. 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 the hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not
offered such reasons here, and we therefore decline to overturn the administrative
judge’s credibility findings. To the extent that the appellant is arguing that the
administrative judge failed to specifically address the testimony and evidence she cites
on review, we are not persuaded. An administrative judge’s failure to mention all of the
evidence does not mean that he did not consider it in reaching his decision. Kingsley v.5
Nonetheless, on remand, the administrative judge must further adjudicate
these claims. The Board must consider an appellant’s pre-PIP performance in the
context of an affirmative defense when, as here, the validity of the agency’s
proffered reason for taking the performance-based action is a factor in analyzing
that claim. Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 25 (citing
Santos, 990 F.3d at 1363-64). Further, in the period since the administrative
judge issued his initial decision, we clarified the evidentiary standards and
burdens of proof for age discrimination and EEO reprisal claims in Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30-33. In the
proceedings on remand, the administrative judge should advise the parties of the
standards set forth in Pridgen, provide them with an opportunity to present
argument and evidence, and hold a supplemental hearing, if appropriate, on the
appellant’s affirmative defenses to permit the parties to address those standards,
as well as any claims regarding the appellant’s pre-PIP performance.3 He should
then apply the standards set forth in Pridgen in the remand initial decision.
The parties do not dispute the administrative judge’s findings on the
appellant’s remaining affirmative defenses of harmful error and whistleblower
U.S. Postal Service , 123 M.S.P.R. 365, ¶ 15 (2016).
3 The appellant argues that distractions in the hearing room prevented her from
presenting testimony concerning her affirmative defenses. PFR File, Tab 1 at 5-6. To
the extent the appellant is arguing that her decision not to testify about age and sex
discrimination was due to an abuse of discretion, we find no support for such a claim.
See Reid v. U.S. Postal Service , 54 M.S.P.R. 648, 655 (1992) (finding no abuse of
discretion in limiting an appellant’s testimony on cross-examination to issues raised on
direct examination when the appellant chose not to testify during the presentation of his
case). Moreover, the administrative judge approved the appellant as a witness and,
during the hearing, heard her testimony, confirmed she finished with her testimony, and
gave her the opportunity to provide additional testimony after the agency’s
cross-examination. IAF, Tab 77, Hearing Recording (testimony of the appellant). We
listened to the hearing recording and could not hear any interruptions in her testimony.
Id. Accordingly, although the appellant may regret her decision not to testify about age
and sex discrimination, she has not established any error on the part of the
administrative judge. Nonetheless, in light of this Remand Order, we leave the scope of
the appellant’s testimony at any supplemental hearing to the sound discretion of the
administrative judge.6
reprisal. As to her whistleblower reprisal claim, the administrative judge
determined that the appellant failed to prove that her protected activity was a
contributing factor in her removal under the knowledge/timing test or otherwise.
ID at 18-21. As to her harmful error claim, the administrative judge concluded
that the appellant failed to identify any policy, rule, or regulation that the agency
violated in connection with her removal. ID at 21.
Because he will now be reviewing the agency’s determination that the
appellant’s pre-PIP performance was unacceptable, the administrative judge
should determine if the appellant was impeded during the proceedings below from
presenting her whistleblower reprisal and harmful error affirmative defenses to
the extent they concerned the period leading up to her placement on the PIP. If
so, he should permit the parties to present evidence and argument on these
matters. He should then make findings on her affirmative defenses that consider
any new evidence and argument. If there are none, the administrative judge may
adopt his prior findings as they concern the PIP and the appellant’s removal in the
remand initial decision.
The appellant’s remaining arguments do not warrant Board review.
Administrative Judge Bias
The appellant argues that the administrative judge was biased against her
because he ridiculed her settlement request during a prehearing conference.
PFR File, Tab 1 at 5. 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’s allegation neither overcomes7
this presumption nor demonstrates any such favoritism or antagonism towards
her. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 19 (2016)
(finding that the agency did not demonstrate that the administrative judge was
biased when it argued that her “tone and substance” throughout the proceeding
were demeaning to agency counsel).
Discovery, Witnesses, and Testimony
The appellant asserts that the administrative judge denied her discovery,
including allowing her to depose agency managers and others who likely
influenced her removal and harassed her, and the ability to obtain more audit
documentation that formed the basis for her removal or that would show how her
work was consistent or superior to comparable work done by younger or male
colleagues. PFR File, Tab 1 at 4. An administrative judge has broad discretion in
ruling on discovery matters, and absent an abuse of discretion, the Board will not
find reversible error in such rulings. Pridgen, 2022 MSPB 31, ¶ 71.
Because the appellant failed to initiate timely discovery, she filed a motion
for an extension of the deadline for doing so. IAF, Tab 11. The administrative
judge denied her motion. IAF, Tab 13 at 2-3. He reasoned that the
acknowledgment order advised the appellant of the requirement that she initiate
discovery within 30 days. IAF, Tab 2 at 3, Tab 13 at 2-3. He found that the
appellant’s general financial hardship was not a basis to find good cause for her
delay. IAF, Tab 13 at 2-3. Nor did the events she cited in requesting more time
serve as excuses because they took place prior to the issuance of the
acknowledgment order. Id. We agree that an appellant’s general financial
difficulties and events occurring before the discovery period began do not excuse
her failure to initiate discovery on time. Johnson v. Department of Veterans
Affairs, 64 M.S.P.R. 257, 259 (1994) (determining that financial difficulties do
not constitute good cause for waiver of the filing deadline), aff’d per curiam ,
56 F.3d 81 (Fed. Cir. 1995) (Table). Therefore, we discern no abuse of discretion
by the administrative judge.8
Next, the appellant argues that the administrative judge incorrectly denied
all but one of her requested witnesses. PFR File, Tab 1 at 5. The appellant failed
to object to that ruling below and is precluded from raising the issue on review.
Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988). However, if the
administrative judge holds a supplemental hearing, the parties may make new
requests for witnesses regarding the appellant’s pre-PIP performance consistent
with the administrative judge’s orders. The administrative judge should make
findings whether to permit those witnesses to testify at any supplemental hearing.
Because we are vacating the initial decision and remanding for a new
hearing, we need not reach the appellant’s arguments that the administrative
judge improperly refused to admit documents regarding her past acceptable
performance and decades of experience before the agency placed her on the PIP.
PFR File, Tab 1 at 4. We also do not rule on the appellant’s argument that the
administrative judge did not consider all of the evidence and testimony. Id. at 5.
On remand, the appellant may request to submit evidence into the record
consistent with the orders of the administrative judge. We leave whether to
permit such evidence to the sound discretion of the administrative judge on
remand.
The appellant further argues that she was confused about certain terms,
such as retaliation, hostile work environment, and harassment. PFR File, Tab 1
at 5. It was incumbent on the administrative judge to advise the appellant of
applicable burdens of proving her affirmative defenses, as well as the kind of
evidence she is required to produce to meet her burden. Wynn v. U.S. Postal
Service, 115 M.S.P.R. 146, ¶¶ 10, 12-13 (2010), overruled on other grounds by
Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 17. Here, the administrative
judge advised the appellant of her burden of proof as to her affirmative defenses
and the kinds of evidence she was required to produce. IAF, Tab 10.
Accordingly, we find that there is no adjudicatory error. 9
Other Arguments
The appellant argues that the administrative judge misspelled a witness’s
name and focused on his computer during the hearing. PFR File, Tab 1 at 5-6.
These assertions do not affect the disposition of a dispositive issue and thus do
not provide a reason for disturbing the initial decision. See, e.g., Stroud v.
Department of Veterans Affairs , 2022 MSPB 43, ¶ 2 n.1 (finding typographical
errors in the initial decision did not prejudice the appellant’s substantive rights
and therefore provided no basis for reversal of the initial decision); Catalano v.
U.S. Postal Service , 23 M.S.P.R. 432, 436 n.2 (1984) (finding that an appellant’s
allegation that the presiding official appeared bored and distracted at the hearing,
without more, did not overcome the presumption of integrity on the part of the
presiding official) .
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Derr_Patricia_K_DC-0432-17-0511-I-1 Remand Order.pdf | 2024-03-12 | PATRICIA KANE DERR v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-17-0511-I-1, March 12, 2024 | DC-0432-17-0511-I-1 | NP |
2,134 | https://www.mspb.gov/decisions/nonprecedential/Eikom_Heidi_A_SF-1221-20-0626-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEIDI A. EIKOM,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
SF-1221-20-0626-W-2
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
H
eidi A. Eikom , Mesquite, Nevada, pro se.
Joyee Joseph Lam , Esquire, and Ryan T. Birmingham , Esquire, San
Francisco, California, for the agency.
Moira McCarthy , 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
denied corrective action in her individual right of action appeal alleging
whistleblower reprisal. On petition for review, the appellant continues to argue
that the agency’s reasons for taking the personnel actions against her are pretext
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 that the true basis for the personnel actions is reprisal. Petition for Review
(PFR) File, Tab 1 at 4-10. She also argues that several of the administrative
judge’s “assumptions” are not based on fact. Id. at 12-20. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s finding that the
agency proved by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected disclosure or activity, we AFFIRM
the initial decision.
The administrative judge correctly found that the appellant failed prove
that her November 8, 2019 complaint regarding her first-level supervisor’s
treatment of her constitutes a protected disclosure under 5 U.S.C. § 2302(b)(8).2
Eikom v. Department of Health & Human Services , MSPB Docket
2 In considering whether the appellant proved by preponderant evidence that she
disclosed what she reasonably believed constituted a supervisor’s abuse of authority,
the administrative judge cited to Pedeleose v. Department of Defense , 107 M.S.P.R.
191, ¶ 37 (2007). The Board has since vacated that decision. See Pedeleose
v. Department of Defense , 110 M.S.P.R. 508, ¶ 25 (2009). Any error in citing to this
decision did not affect the parties’ substantive rights or the outcome of this appeal and,
therefore, does not require reversal. 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). 2
No. SF-1221-20-0626-W-2, Appeal File (W-2 AF), Tab 34, Initial Decision (ID)
at 10-15. Nonetheless, she proceeded to consider whether the agency met its
burden of showing by clear and convincing evidence that it would have placed the
appellant on administrative/investigative leave, reassigned her, or issued her an
unfavorable performance appraisal even in the absence of any protected
disclosure or activity. ID at 20-39. Because we agree with the administrative
judge that the appellant failed to establish a prima facie case of whistleblower
reprisal,3 it was improper for the administrative judge to then consider whether
the agency met its burden to show by clear and convincing evidence that it would
have taken the same actions in the absence of the appellant’s protected disclosure.
See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs , 121
M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the
clear and convincing evidence test unless it has first made a finding that the
appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir.
2015).4 Accordingly, we vacate the initial decision’s finding that the agency
showed by clear and convincing evidence that it would have placed the appellant
on administrative/investigative leave, reassigned her to another health center, and
issued her a lower performance appraisal even if she had not submitted her
November 8, 2019 complaint.
3 We have considered whether the appellant’s November 8, 2019 complaint constitutes
protected activity under 5 U.S.C. § 2302(b)(9) but conclude that it does not. The
appellant has not shown that her complaint was filed pursuant to any right granted by
law, rule, or regulation, or that it was filed to remedy whistleblower reprisal, nor has
she shown that the complaint was made to an agency component responsible for an
internal investigation. See 5 U.S.C. § 2302(b)(9); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013).
4 In Delgado v. Merit Systems Protection Board , 880 F.3d 913, 924-25 (7th Cir. 2018),
the U.S. Court of Appeals for the Seventh Circuit disagreed with the Board’s discussion
of an exhaustion issue in Clarke. That discussion is not relevant here. 3
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Eikom_Heidi_A_SF-1221-20-0626-W-2_Final_Order.pdf | 2024-03-11 | HEIDI A. EIKOM v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. SF-1221-20-0626-W-2, March 11, 2024 | SF-1221-20-0626-W-2 | NP |
2,135 | https://www.mspb.gov/decisions/nonprecedential/Miles_Regina_L_DC-0752-17-0177-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINA LORRAINE MILES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-17-0177-I-1
DATE: March 11, 2024
THIS ORDER IS NONPRECEDENTIAL1
R
egina Lorraine Miles , Oxon Hill, Maryland, pro se.
Eric S. Daniels and Melanie Russell , Esquire, Washington, D.C., 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
sustained her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, AFFIRM the administrative judge’s findings that
the appellant’s position required a security clearance, the clearance was revoked,
and the appellant received the procedural protections specified in 5 U.S.C.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
§ 7513, MODIFY the initial decision to clarify the administrative judge’s analysis
of the appellant’s due process claim and to address her claims of reprisal and
bias, and REMAND this case to the Office of Regional Operations for further
adjudication of the appellant’s affirmative defense of harmful error.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant served as an Investigative Analyst with INTERPOL
Washington. Initial Appeal File (IAF), Tab 10 at 4-10. The Investigative Analyst
position description specified that it was a critical-sensitive position (level 3),
requiring that the appellant maintain access to classified National Security
Information (NSI) and eligibility for a top secret clearance subject to background
reinvestigations every 5 years. IAF, Tab 13 at 8, 19, Tab 14 at 31-32. On
September 19, 2016, the agency’s Department Security Officer revoked the
appellant’s access to classified NSI after she failed to complete the forms
required to initiate her 5 -year security reinvestigation. IAF, Tab 12 at 10, Tab 14
at 4-5, Tab 41, Initial Decision (ID) at 2. In the letter of revocation, the agency
provided the appellant with the following information: (1) her procedural options
under Executive Order 12,968 of August 2, 1995, as amended;2 (2) how to request
reconsideration of the revocation decision; (3) her right to appeal an unfavorable
reconsideration decision to the agency’s Office of Inspector General (OIG) if she
believed that the action affecting her NSI access was taken in reprisal for making
a protected disclosure under Presidential Policy Directive 19 (Oct. 19, 2012)
(PPD-19);3 and (4) her right to appeal the revocation decision to the agency’s
Access Review Committee (ARC). IAF, Tab 14 at 4-5. On November 7, 2016,
2 Executive Order 12,968 establishes standards for access to classified information and
the review procedures for revocations of eligibility. See Doe v. Department of Justice ,
118 M.S.P.R. 434, ¶¶ 26-28 (2012).
3 PPD-19 provides protection for whistleblowers with access to classified information
and requires the intelligence community to develop and implement procedures to
protect employees from whistleblower retaliation. See Van Lancker v. Department of
Justice, 119 M.S.P.R. 514, ¶ 12 n.1 (2013). 2
the Department Security Officer denied the appellant’s request for
reconsideration of his decision revoking her access to NSI and advised the
appellant of her right to ARC review. IAF, Tab 26 at 9-12.
Based on the revocation of the appellant’s access to classified NSI, the
agency proposed to remove her for the charge of failure to maintain a
qualification of her position. IAF, Tab 11 at 4-6. The appellant submitted a
written response to the agency’s proposal. IAF, Tab 10 at 14-15. The deciding
official sustained the charge and the removal action, effective November 17,
2016. Id. at 10-13. This appeal followed.4 IAF, Tab 1.
On appeal, the appellant made the following allegations: (1) she never
processed top secret or classified information at INTERPOL Washington; (2) the
agency violated “Federal removal protocols”; and (3) the agency retaliated
against her for her prior whistleblowing and equal employment opportunity
(EEO) activity. IAF, Tab 1 at 5, Tab 39 at 11, 15. She also raised an affirmative
defense of harmful error, claiming that the agency violated Executive
Order 12,968, PPD-19, agency Human Resources (HR) Order 1200.1 (pertaining
to disciplinary and adverse actions of agency employees), agency Order 2610.2B
(setting forth responsibilities under the agency employment security program),
and several agency regulations during the security clearance revocation and
subsequent removal process. IAF, Tab 14 at 14-28, Tab 28 at 6-7, Tab 39 at 4-15.
The appellant waived her right to a hearing, and the administrative judge
issued a decision based on the written record affirming the agency’s removal
action. ID at 2; IAF, Tab 1 at 2. He found that the appellant’s position required
her to have a top secret security clearance and access to NSI, the agency revoked
4 The appellant elected to voluntarily retire on the effective date of her removal. IAF,
Tab 10 at 4. On appeal, the administrative judge properly found that the Board retained
jurisdiction over the agency’s removal action despite the appellant’s retirement. ID
at 1 n.1; see Mays v. Department of Transportation , 27 F.3d 1577, 1579 -80 (Fed. Cir.
1994) (holding that the Board retains jurisdiction over an appeal if an employee retires
when faced with an agency’s final decision to remove her); Krawchuk v. Department of
Veterans Affairs, 94 M.S.P.R. 641, ¶ 6 (2003) (same). 3
her access to NSI, the agency afforded her the procedural protections specified in
5 U.S.C. § 7513, and the agency provided her with minimum due process in
revoking her NSI access and in the removal action.5 ID at 2-4. The
administrative judge did not address the appellant’s affirmative defenses alleging
that the agency engaged in reprisal and harmful error in applying its security
clearance regulations.
The appellant has filed a petition for review disputing the administrative
judge’s finding that her position required top secret clearance and access to
classified NSI. Petition for Review (PFR) File, Tab 1 at 9, 12. She challenges
the administrative judge’s finding that the agency provided her with due process
in revoking her NSI access and in the removal proceedings, and she reasserts the
affirmative defenses that she raised on appeal. Id. at 6-10; IAF, Tab 1 at 5,
Tab 39 at 11-12, 15. The appellant also reasserts arguments she made on appeal,
challenging the agency’s penalty determination and raising a claim of bias against
the administrative judge.6 PFR File, Tab 1 at 7, 9; IAF, Tab 39 at 13, 87. The
agency has responded in opposition to her petition. PFR File, Tab 5.
The administrative judge properly found that the appellant’s position required a
security clearance, the clearance was revoked, and the appellant received the
procedural protections specified in 5 U.S.C. § 7513.
As properly noted by the administrative judge, in an appeal of a removal
action under chapter 75 based on the revocation of a security clearance, the Board
5 During the pendency of her appeal, the appellant filed a request to stay the removal
and the proceedings on her Board appeal. IAF, Tab 25. The appellant argued that a
stay would allow her to exhaust her “DOJ Appeal Rights as a Whistleblower” and
pursuant to Executive Order 12,968 and any other laws and protections, contending that
the results of the Department of Justice appeal process might make her Board appeal
unnecessary. Id. at 4. The administrative judge denied her request. IAF, Tab 27.
6 The appellant also suggests that the Board should grant her petition for review because
the agency did not state in its e-Appeal Online filings that it had personal knowledge of
its pleadings. PFR File, Tab 1 at 9. We disagree. The statements of a party’s
representative in a pleading generally do not constitute evidence, and the appellant does
not explain how the alleged error affected the outcome of her appeal. See, e.g.,
Brown v. Department of Interior , 86 M.S.P.R. 546, ¶ 16 (2000). 4
may not review the merits of the underlying clearance determination. ID at 2; see
Flores v. Department of Defense , 121 M.S.P.R. 287, ¶¶ 7-8 (2014). Rather, the
Board only has the authority to review whether the following conditions were
met: (1) the appellant’s position required a security clearance; (2) the clearance
was denied, revoked, or suspended; and (3) the appellant was provided with the
procedural protections specified in 5 U.S.C. § 7513.7 Ulep v. Department of the
Army, 120 M.S.P.R. 579, ¶ 4 (2014). For the reasons stated below, we agree with
the administrative judge that the agency met these standards.
The administrative judge found it undisputed that the appellant’s
Investigative Analyst position required a top secret clearance and access to
classified NSI.8 On review, the appellant disputes this finding but submits no
evidence to support her argument. PFR File, Tab 1 at 9. The appellant asserts
that she raised this issue below, but she provides no citation to the record. Id.
Moreover, the record reflects that the appellant’s Investigative Analyst position
with INTERPOL Washington was designated as a critical-sensitive position
(level 3), which required her to maintain a top secret clearance and eligibility to
access classified information. IAF, Tab 13 at 8, 10, 19, Tab 14 at 31-32. We
reject as unproven the appellant’s argument to the contrary.
Moreover, to the extent that the appellant reasserts the argument she made
on appeal disputing the agency’s action designating her former position as
critical-sensitive requiring top secret clearance eligibility and NSI access, the
Board lacks authority to determine whether the agency properly designated the
position. PFR File, Tab 1 at 9, 12-13; IAF, Tab 39 at 10; see Doe v. Department
7 The Board also may consider whether the appellant’s transfer to a nonsensitive
position was feasible but only when an agency policy statement or regulation provides
the appellant with a substantive right to such a reassignment. See Rogers v. Department
of Defense, 122 M.S.P.R. 671, ¶ 14 (2015). The administrative judge found it
undisputed that the agency had no such policy, and the appellant does not contest this
finding on review. ID at 3 n.2.
8 NSI is synonymous with classified information. Grimes v. Department of Justice ,
122 M.S.P.R. 36, ¶ 2 n.1 (2014) (citing Exec. Order No. 13,526, § 6.1(i) (2009)). 5
of Justice, 118 M.S.P.R. 434, ¶ 17 (2012) (finding that the Board lacks authority
to determine whether an agency’s designation of a position was proper ).
Finally, the undisputed record reflects that the agency followed the
procedural requirements of 5 U.S.C. § 7513, by providing the appellant with at
least 30 days’ advance written notice of the proposed adverse action; 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 answer; to be
represented by an attorney or other representative; and a written decision giving
the specific reasons for the agency’s action. ID at 3-4; IAF, Tab 10 at 10-15,
Tab 11 at 4-5. Accordingly, we agree with the administrative judge’s findings in
this regard. ID at 3-4.
We affirm the administrative judge’s finding that the agency did not violate the
appellant’s right to due process, as modified herein.
The administrative judge found that the agency afforded the appellant due
process protections by providing her with notice of the proposed security
clearance revocation and an opportunity to respond. ID at 4. The appellant
disputes this finding on review, alleging that the agency denied her due process
rights under Executive Order 12,968 and PPD-19 in revoking her NSI access.
PFR File, Tab 1 at 6, 8-10. We disagree but nonetheless modify the
administrative judge’s reasoning on the alleged due process violation. In the
initial decision, the administrative judge found that the minimum due process to
be afforded the appellant here included advance notice of the reasons for revoking
her access to classified NSI and a meaningful opportunity to respond. ID at 4.
Our reviewing court, however, has clarified that, because an employee has no
property interest in a security clearance, an agency is not obliged as a matter of
constitutional due process to notify the employee of the specific reasons for
revoking her clearance. See Gargiulo v. Department of Homeland Security ,
727 F.3d 1181, 1185-86 (Fed. Cir. 2013); see Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262, ¶ 25 (2014). Rather, for purposes of due process, it6
is sufficient for an agency to inform the employee in the proposed removal that
her position required a security clearance and that she cannot retain her position
after she loses her clearance. See Buelna, 121 M.S.P.R. 262, ¶ 25. Contrary to
the appellant’s arguments on review, the record reflects that the agency provided
her with this information. PFR File, Tab 1 at 12, Tab 10 at 10-11, Tab 11 at 4-5;
IAF, Tab 12 at 6-10.
On review, the appellant also reasserts her argument that the agency did not
afford her due process right to “a meaningful opportunity to invoke the discretion
of a deciding official with the authority to select an alternative outcome.” PFR
File, Tab 1 at 6; IAF, Tab 39 at 14. In support of her argument, the appellant
reasserts the claim she made on appeal that INTERPOL Washington could have
contacted the Office of Personnel Management (OPM) to determine if her
security reinvestigation was necessary and allowed her to continue working
because she was less than 1 year from retirement. PFR File, Tab 1 at 6, 10; IAF,
Tab 39 at 13. She also makes a claim of bias against the deciding official. PFR
File, Tab 1 at 10. For the reasons discussed below, we find that the agency
provided the appellant with minimal due process.
An employee has a due process right to notice of the grounds in support of
the adverse action and a meaningful opportunity to invoke the discretion of a
deciding official with the authority to select an alternative outcome, to the extent
that an alternative penalty may have been feasible. Grimes v. Department of
Justice, 122 M.S.P.R. 36, ¶ 8 (2014). We affirm the administrative judge’s
finding that the agency provided the appellant with minimal due process because
the record reflects that the deciding official determined that her removal was
warranted after considering the appellant’s arguments in response to the notice of
proposed removal and providing her with notice of the grounds in support of her
removal.9 IAF, Tab 10 at 10-13, Tab 11 at 4-7; see Grimes, 122 M.S.P.R. 36, ¶ 8
9 Although unclear, the appellant may be arguing that the administrative judge or the
deciding official in her removal action was required to consider mitigating factors such
as her pending retirement date. PFR File, Tab 1 at 6-7, 10; IAF, Tab 39 at 13. We7
(finding no due process error when the deciding official considered and rejected
the arguments the appellant raised in her reply to the proposed removal).
On review, the appellant cites the Board’s decision in Ryan v. Department
of Homeland Security , 121 M.S.P.R. 460 (2014), to support her argument that she
was denied her due process right to have a meaningful opportunity to invoke the
discretion of the deciding official because the agency did not pursue alternatives
to removal. PFR File, Tab 1 at 10. However, the Board held in Ryan that it had
no authority to review whether an employee should have been reassigned instead
of subjected to an adverse action, absent a statute, regulation, or policy mandating
the transfer or reassignment of an employee who is denied a security clearance.
Ryan, 121 M.S.P.R. 460, ¶¶ 6, 8, overruled on other grounds by Freeze v.
Department of the Navy , 122 M.S.P.R. 179, ¶ 11 n.2 (2015). Because the
appellant does not contest the administrative judge’s finding that the agency did
not have a policy requiring her transfer or reassignment, the Board has no
authority to consider these alternatives. ID at 3 n.2.
On review, the appellant also appears to argue that the deciding official in
the removal action was biased to the extent that his selection violated due
process. PFR File, Tab 1 at 8, 10-11. An employee has a due process right to
have an unbiased decision maker adjudicate her case. Holton v. Department of
the Navy, 123 M.S.P.R. 688, ¶ 30 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).
To establish a due process violation based on the identity of a deciding official,
an appellant must assert a specific allegation indicating that the agency’s choice
of deciding official made the risk of unfairness to the appellant intolerably high.
Id. For the reasons discussed below, we find that the appellant has not met that
burden here.
disagree because mitigation is not appropriate in this type of case. See Doe,
118 M.S.P.R. 434, ¶ 41 (finding mitigation inappropriate in a removal action based on
the appellant’s failure to maintain a qualification of his position requiring him to have
access to classified information). 8
To support her claim of bias, the appellant argues that the deciding official
in this removal action, and all of the agency officials who wanted to remove her,
were individuals alleged to have engaged in discriminatory conduct in her past
EEO complaints. PFR File, Tab 1 at 8, 10-12; IAF, Tab 39 at 14-15. However,
we find that the agency’s choice of a deciding official did not make the risk of
unfairness to the appellant intolerably high considering that she was required to
maintain access to classified NSI as a qualification of her position, her proposed
removal was based on her failure to maintain that qualification of her position,
and she does not dispute that access was revoked. See Robinson v. Department of
Homeland Security , 498 F.3d 1361, 1365 (Fed. Cir. 2007) (finding that the
absence of a properly authorized security clearance is fatal in a removal action
based on failure to maintain the security clearance required by the job
description). Accordingly, we are not persuaded by the appellant’s arguments
that the agency violated her due process rights.
We remand this appeal for the administrative judge to adjudicate the appellant’s
affirmative defense of harmful error.
Separate from constitutional due process, the Board has the authority under
5 U.S.C. § 7701(c)(2)(A) to review whether an agency taking an adverse action
complied with required procedural protections for security clearance
determinations, including those set forth in an agency’s own regulations.
Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶¶ 6-7 (2015). The Board
will reverse an adverse action based on revoking a security clearance if an
appellant is able to prove harmful error. Buelna, 121 M.S.P.R. 262, ¶ 33;
5 C.F.R. § 1201.56(c)(1). To do so, an appellant must prove that the agency
committed an error in applying its procedures that is likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Buelna, 121 M.S.P.R. 262, ¶ 33; 5 C.F.R.
§ 1201.4(r). 9
On appeal, the pro se appellant raised an affirmative defense of harmful
error alleging that the agency failed to follow Executive Order 12,968, PPD-19,
agency HR Order 1200.1, agency Order 2610.2B, and several regulations during
its processing of her security clearance revocation and the resulting removal
action, and she reasserts this affirmative defense on review. Specifically, the
appellant asserts that she never signed her nondisclosure agreement reflecting that
her position requires a security clearance in accordance with agency Order
2610.2B, that the agency never conducted an evaluation of the risk level of her
position in violation of OPM regulations, and that the agency violated Executive
Order 12,968 by failing to provide her with the documents underlying her security
clearance revocation; violated agency regulations by reinvestigating her security
clearance; did not conduct an investigation as required by PPD-19 and Executive
Order 12,968; failed to provide her adequate appeal rights under HR Order
1200.1; violated OPM regulations by failing to evaluate the risk level of her
position; and violated agency regulations by removing her before the decision on
her security clearance was final.10 IAF, Tab 14 at 4, Tab 28 at 4-7, Tab 39 at 4-9,
12-15; PFR File, Tab 1 at 6-10.
Despite these arguments, the administrative judge did not identify the
appellant’s harmful error claim as an issue for adjudication, and there is no
indication that the appellant was informed of the means for proving this
affirmative defense by the administrative judge or in the agency’s pleadings. See
Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008) (finding that a
deficiency in notice can be cured if the agency’s pleadings contain the notice that
was lacking in the acknowledgment order or the initial decision puts the appellant
10 The appellant also alleges that the agency violated HR Order 1200.1 when it failed to
remove a letter of reprimand from her personnel file after her removal. IAF, Tab 28
at 7. Because this allegation concerns the agency’s post-removal activity, it cannot
form the basis for a harmful error claim here. See Schnedar v. Department of the Air
Force, 120 M.S.P.R. 516, ¶ 8 (2014) (explaining that the Board may not sustain an
adverse action if the employee can show harmful error in the application of the agency’s
procedures for revoking a security clearance or for taking an adverse action based on
such revocation). 10
on notice of her burden, thus giving her the opportunity to meet her burden on
review).
The Board consistently has required administrative judges to apprise
appellants of the applicable burdens of proving a particular affirmative defense,
as well as the kind of evidence required to meet those burdens. See Thurman v.
U.S. Postal Service , 2022 MSPB 21, ¶ 17 & n.7. Further, nothing in the record
reflects that the appellant abandoned or withdrew her harmful error claim. Id.,
¶¶ 17-18 (setting forth the standard for determining whether an appellant
abandoned an affirmative defense). Accordingly, we find that the administrative
judge should have informed the appellant of the burdens of proving her
affirmative defense and this claim must be remanded.
The Board has no authority to consider the appellant’s affirmative defenses of
whistleblower reprisal and reprisal for prior EEO complaints.
On review, the appellant reasserts the affirmative defenses that she raised
on appeal alleging whistleblower reprisal and reprisal for prior EEO complaints.
PFR File, Tab 2 at 6-10; IAF, Tab 39 at 15. The administrative judge did not
address these issues in the initial decision, but this error did not prejudice the
appellant’s substantive rights because the Board cannot adjudicate an affirmative
defense that would require it to assess the merits of a security clearance
determination.11 See Doe v. Department of Justice , 121 M.S.P.R. 596, ¶ 10
(2014); see generally Gargiulo , 727 F.3d at 1187 (finding that the Board has no
authority to consider whether an agency has reasonable grounds for revoking an
employee’s security clearance). To the extent that the Board might have limited
authority to adjudicate a claim of reprisal that goes solely to the issue of penalty,
11 In this regard, we find the appellant’s argument that the agency failed to notify her of
her mixed-case appeal rights without merit, as the agency provided her with mixed-case
appeal rights in the removal decision letter. IAF, Tab 10 at 11-12. In any event, as
explained above, the Board does not have the authority to adjudicate her affirmative
defenses. See Doe, 121 M.S.P.R. 596, ¶ 10. 11
see Helms v. Department of the Army , 114 M.S.P.R. 447, ¶ 9 & n.* (2010), we
find that the appellant’s claims are not of that nature.
The appellant has not proven bias by the administrative judge.
On review, the appellant raises a claim of bias against the administrative
judge. PFR File, Tab 1 at 9. 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. Tyler v. U.S. Postal
Service, 90 M.S.P.R. 545, ¶ 6 (2002). For the reasons discussed below, we find
that the appellant has not met that burden here.
The appellant alleges that the administrative judge “informed [her] that the
[a]gency would prevail” on appeal before the appellant had the opportunity to
respond to the removal decision. PFR File, Tab 1 at 9. She asserts that the
administrative judge raised his voice to her in response to her “obvious
confusion” about the Board’s jurisdiction in security clearance cases involving
whistleblowers. Id. She also asserts that the administrative judge rejected her
request to stay the proceedings on appeal to exhaust her “DOJ Appeal Rights,”
although she only filed a Board appeal out of fear that she would lose the
opportunity to file it in the future. Id.
We reject as unproven the appellant’s claim of bias because the appellant
has not shown that the administrative judge’s comments or actions during the
course of the Board proceedings 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)). Although the administrative judge may have
become somewhat abrupt and impatient with the appellant, such conduct did not
establish bias. Tyler, 90 M.S.P.R. 545, ¶ 8. Moreover, the fact that the
administrative judge denied her request for a stay does not prove bias. Id., ¶ 6
(finding the fact that an administrative judge ruled against a party is insufficient
evidence to show bias). 12
ORDER
For the reasons discussed above, we remand this case to the Office of
Regional Operations for further adjudication of the appellant’s affirmative
defense of harmful error in accordance with this Remand Order. On remand, the
administrative judge shall apprise the appellant of her burden and the elements of
proof regarding her harmful error claim and afford the parties an opportunity to
develop the record by submitting evidence and argument on this issue.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Miles_Regina_L_DC-0752-17-0177-I-1_Remand_Order.pdf | 2024-03-11 | REGINA LORRAINE MILES v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-17-0177-I-1, March 11, 2024 | DC-0752-17-0177-I-1 | NP |
2,136 | https://www.mspb.gov/decisions/nonprecedential/Hayes_Joseph_S_SF-1221-21-0377-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH S. HAYES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-1221-21-0377-W-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph S. Hayes , Windsor, California, pro se.
Brooke A. DuBois , Esquire, and Clairanne Wise , Esquire, Springfield,
Virginia, 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
granted the appellant’s request for corrective action in his individual right of
action (IRA) appeal. For the reasons discussed below, we GRANT the agency’s
petition for review, REVERSE the administrative judge’s findings regarding 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).
timeliness of the appeal, VACATE the initial decision, and DISMISS the appeal
as untimely filed.
BACKGROUND
The appellant was a Criminal Investigator with the U.S. Forest Service
(USFS), a sub-agency of the Department of Agriculture, detailed to a task force
operated by the Drug Enforcement Administration (DEA), a sub -agency of the
agency in this appeal. Hayes v. Department of Agriculture , MSPB Docket
No. SF-1221-21-0377-W-1, Initial Appeal File (IAF), Tab 9 at 49-55. In the
spring of 2020, DEA terminated the appellant’s position on the task force. IAF,
Tab 1 at 22-23, Tab 9 at 16, 19-20. As a result, USFS directed the appellant’s
geographic reassignment. Hayes v. Department of Agriculture , MSPB Docket
No. SF-1221-21-0320-W-1, Initial Appeal File (0320 IAF), Tab 7 at 40-41. The
appellant declined the reassignment, and USFS removed the appellant, effective
January 19, 2021, based on his declination. Id. at 22-26, 28-30.
The appellant filed a complaint with the Office of Special Counsel (OSC),
in which he alleged that he engaged in whistleblower activity while assigned to
the DEA task force, and that, because of that activity, in addition to personnel
actions taken by USFS, DEA eliminated his task force position. IAF, Tab 1
at 36-37; Tab 19 at 4. On March 22, 2021, OSC issued the appellant a close -out
letter and another letter informing him of his right to file an IRA appeal with the
Board within 65 days. IAF, Tab 1 at 36-37. The appellant then timely filed a
Board appeal against USFS. 0320 IAF, Tab 1. During a June 2, 2021 status
conference in that appeal, the appellant indicated that he also wanted to pursue an
IRA appeal against DEA. 0320 IAF, Tab 12 at 2. The administrative judge
docketed the present appeal on that same date. IAF, Tab 2 at 2.
During the pendency of the present appeal, the agency noted that, based on
the appellant’s expression of his desire to file a Board appeal against the agency,
the administrative judge docketed the appeal 72 days after OSC’s March 22, 20212
close-out letter. IAF, Tab 17 at 14. The agency thus argued that the appeal was
untimely filed, and also argued that equitable tolling of the statutory deadline was
not warranted under the circumstances. Id. at 14-15. In response, the appellant
argued that equitable tolling was warranted because his IRA appeal against USFS
was a “good faith effort” to file an appeal against both USFS and DEA. IAF,
Tab 19 at 4. The appellant also argued, among other things, that equitable tolling
was appropriate due to “fraudulent concealment” and other agency misconduct,
and that the 7-day filing delay was not significant. Id. at 4-7. The appellant
further requested that his appeal be evaluated under 5 U.S.C. § 1214(a)(3)(B),
which provides that an individual may file an IRA appeal with the Board
120 days after seeking corrective action from OSC if OSC does not notify the
individual that it will seek corrective action on his behalf. IAF, Tab 21 at 4.
In the initial decision, the administrative judge found the appeal had been
timely filed, determining that the timeline under 5 U.S.C. § 1214(a)(3)(B) was
more appropriate to apply to the appeal, but that even if the 60-day deadline
under 5 U.S.C. § 1214(a)(3)(A) were applicable, equitable tolling excused the
delay.2 IAF, Tab 23, Initial Decision (ID) at 14-17. The administrative judge
then concluded that the appellant made protected disclosures which were a
contributing factor in DEA’s elimination of his task force position, and that the
agency failed to show by clear and convincing evidence that it would have
eliminated the appellant’s task force position absent his disclosures. ID at 17-22.
As relief, the administrative judge ordered that DEA offer the appellant a position
on its task force if an opening remained for a USFS agent.3 ID at 22.
2 The appellant waived his right to a hearing and the administrative judge thus issued an
initial decision based on the written record. IAF, Tab 12 at 2.
3 In the appellant’s appeal against USFS, the administrative judge found that the
appellant made protected disclosures which were a contributing factor in USFS’s
personnel actions, and that USFS failed to show by clear and convincing evidence that
it would have taken the same actions absent those disclosures. Hayes v. Department of
Agriculture, MSPB Docket No. SF-1221-21-0320-W-1, Initial Decision at 17-27
(Nov. 17, 2021). As corrective action, the administrative judge ordered, among other
things, that the appellant’s removal be reversed. Id. at 28-29. The administrative judge3
The agency filed a petition for review in which it challenges, among other
things, the administrative judge’s timeliness analysis. Petition for Review (PFR)
File, Tab 1 at 10-18. The appellant did not respond.
ANALYSIS
The appeal was untimely filed.
Under 5 U.S.C. § 1214(a)(3)(A), if OSC notifies an individual seeking
corrective action from OSC “that an investigation concerning such [individual]
has been terminated,” and “no more than 60 days have elapsed since notification
was provided to such [individual] that such investigation was terminated,” he may
file an IRA appeal with the Board. Notwithstanding the implementing provisions
of 5 C.F.R. § 1209.5(a), which adds 5 days to account for mailing, Fisher v.
Department of Defense , 52 M.S.P.R. 470, 475 (1992), 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, Heimberger v. Department of Commerce ,
121 M.S.P.R. 10, ¶ 9 (2014). On the other hand, an individual may file an IRA
appeal with the Board under 5 U.S.C. § 1214(a)(3)(B) at any time if no action has
been taken by OSC within 120 days of his filing of a complaint. Schaefer v.
Department of Transportation , 87 M.S.P.R. 37, ¶ 12 (2000).
We disagree with the administrative judge’s conclusion that the timeline
under 5 U.S.C. § 1214(a)(3)(B) was appropriate to apply to the appeal. The
administrative judge found that, because OSC’s close-out letter did not address
any investigation into actions by DEA, and it was not clear that OSC investigated
the appellant’s claims against DEA or timely issued a close-out letter for such an
investigation, the 60-day deadline in 5 U.S.C. § 1214(a)(3)(A) did not apply. ID
at 16-17.
also awarded the appellant compensatory damages against USFS in an addendum initial
decision. Hayes v. Department of Agriculture , MSPB Docket No. SF-1221-21-0320-P-
1, Initial Decision (Mar. 22, 2022). Neither party petitioned the Board for review of
those initial decisions, which thus became final decisions of the Board. 5 C.F.R.
§ 1201.113.4
It is correct that OSC’s March 22, 2021 letter informing the appellant of his
Board appeal rights did not specifically identify DEA as a subject of his
complaint. IAF, Tab 1 at 36. However, based on the record, the appellant filed
only one OSC complaint, and OSC’s letter informed the appellant that its
investigation into the entirety of that complaint had been terminated.4 Id.
at 34-41. The appellant never asserted that he made a complaint in addition to the
one addressed in OSC’s letter, nor is there any indication that the appellant was
awaiting a separate close-out letter for OSC’s investigation into his allegations
regarding DEA. Finally, the appellant acknowledged that he had alleged
prohibited personnel practices by DEA in his OSC complaint, and OSC’s letter
informed the appellant that he may file an IRA appeal for “any personnel action”
taken against him because of whistleblowing activity “that was the subject of
[his] OSC complaint.” Id. at 36; IAF, Tab 21 at 4.
We thus find that the condition that triggers the 60-day time limit under
5 U.S.C. § 1214(a)(3)(A)—that OSC notify the individual seeking corrective
action that the investigation concerning that individual has been terminated—was
satisfied by OSC’s March 22, 2021 letter. Bauer v. Department of the Army ,
88 M.S.P.R. 352, ¶ 7 (2001). Thus, because the 60-day deadline applied to the
appeal, accounting for the additional 5 days in 5 C.F.R. § 1209.5(a), the appeal
was untimely filed on June 2, 2021, by 7 days.
Equitable tolling is not warranted under the circumstances.
As set forth earlier, the statutory time limit for filing an IRA appeal cannot
be waived based on a showing of good cause; this is unlike other types of appeals
to the Board for which there is only a regulatory time limit for filing.
Heimberger, 121 M.S.P.R. 10, ¶ 9. However, the 60-day deadline under 5 U.S.C.
§ 1214(a)(3)(A) may be subject to equitable tolling, under which the filing period
4 Because the appellant did not file his OSC complaint with the Board, we are left to
discern its contents through available evidence. IAF, Tab 1 at 34-41. We assume that
the appellant exhausted his claims in this appeal before OSC.5
is suspended for equitable reasons. Id., ¶ 10. 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 his rights diligently and some extraordinary
circumstances stood in his way. Id.; see Wallace v. Kato , 549 U.S. 384, 396
(2007). In Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990), the
U.S. Supreme Court explained that it allowed equitable tolling when a claimant
actively pursued his judicial remedies by filing a defective pleading during the
statutory period, or was induced or tricked by his adversary’s misconduct into
allowing a deadline to pass, but has “generally been much less forgiving” when a
claimant failed to exercise due diligence in preserving his legal rights.5
We disagree with the administrative judge’s finding that the 60-day
deadline in 5 U.S.C. § 1214(a)(3)(A) should be equitably tolled. The
administrative judge reasoned that the appellant diligently pursed his rights by
filing an appeal based on OSC’s instructions, that if OSC had intended its
March 22, 2021 letter to give notice of appeal rights regarding an appeal against
DEA it did not communicate that intent clearly, and that any ambiguity created by
OSC constituted an extraordinary circumstance that stood in the appellant’s way.
ID at 17. The administrative judge further found, applying Irwin, that the
appellant actively pursued his remedies by timely filing a pleading against USFS,
which may have been “defective” against DEA, but that this defect was corrected
promptly. Id.
However, as discussed, the appellant acknowledged that he had alleged
prohibited personnel practices by DEA in his OSC complaint, and the March 22,
2021 letter informed the appellant that its investigation into the entirety of that
complaint had been terminated and that he may file an IRA appeal for “any
personnel action” taken against him because of whistleblowing activity “that was
the subject of [his] OSC complaint.” IAF, Tab 1 at 36, Tab 21 at 4. As
5 In 5 C.F.R. § 1209.5(b), the circumstances under which Irwin found equitable tolling
permissible are stated to apply to IRA appeals.6
demonstrated by his timely filing of his appeal against USFS, the appellant knew
how to timely file an appeal against DEA, 0320 IAF, Tab 1, and there was no
“extraordinary circumstance” that stood in his way had he desired to do so.
Further, the administrative judge’s finding that the appellant filed a diligent
but “defective” pleading appears to have credited the appellant’s assertion that his
appeal against USFS was a “good faith effort” to file an appeal against both
USFS and DEA. ID at 17; IAF, Tab 19 at 4. However, in statements in his USFS
appeal that preceded the expression of his desire to file the current appeal, the
appellant indicated that he was only seeking redress against USFS. 0320 IAF,
Tab 8 at 6. For example, in response to USFS’s attempt to argue that DEA, and
not USFS, was the appropriate party to the appellant’s appeal against USFS, the
appellant described USFS as “the [a]gency [that] took the action, the [a]gency
[that] is responsible.” Id.; 0320 IAF, Tab 7 at 15. There is also no indication that
the appellant’s USFS appeal was intended to constitute an appeal against both
USFS and DEA or that his failure to timely file an appeal against DEA was a
result of a “defect.” 0320 IAF, Tab 1. Tolling the 60-day statutory deadline is
therefore inappropriate under the circumstances.6 See Heimberger , 121 M.S.P.R.
10, ¶ 12 (finding equitable tolling inappropriate despite a potentially misleading
letter from OSC when the appellant did not diligently pursue her claim during the
period to be tolled and it did not appear that the potentially misleading language
in the close-out letter was causally related to the appellant’s untimely filing).
Regarding the appellant’s argument that the 7-day filing delay was not
significant, equitable tolling has been held to not excuse a filing delay of even a
single day. Taylor v. Secretary of the Department of Health and Human Services ,
6 Even if the appellant was somehow confused by OSC’s March 22, 2021 letter
regarding his right to file an IRA appeal against DEA, he could easily have contacted
OSC for clarification. His neglect in doing so would also make this appeal
inappropriate for equitable tolling. See Reutershan v. Merit Systems Protection Board ,
43 F.3d 1486, *4 (Fed. Cir. 1994) (Table) (finding that whether or not an OSC close-out
letter was confusing about the applicable time limit for filing a Board appeal, the ease
with which the petitioner could have contacted OSC for clarification makes his case one
of mere neglect inappropriate for equitable tolling).7
91 F.3d 172, *1 (Fed. Cir. 1996) (Table) (finding equitable tolling unavailable for
garden variety excusable neglect leading to a 1-day filing delay).7 Finally, the
appellant’s various allegations of DEA’s malfeasance and “fraudulent
concealment,” IAF, Tab 19 at 5-7, do not warrant extending equitable tolling to
this appeal, as they do not establish an explanation for his untimeliness or are
otherwise irrelevant to the issue. Accordingly, the appellant’s appeal was
untimely filed, equitable estoppel does not excuse the appellant’s delay, and the
appeal is dismissed.
NOTICE OF APPEAL RIGHTS8
This Final Order constitutes the Board’s final decision in this matter.
5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C.
§ 7703(a)(1). By statute, the nature of your claims determines the time limit for
seeking such review and the appropriate forum with which to file. 5 U.S.C.
§ 7703(b). Although we offer the following summary of available appeal rights,
the Merit Systems Protection Board does not provide legal advice on which
option is most appropriate for your situation and the rights described below do
not represent a statement of how courts will rule regarding which cases fall within
their jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
7 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. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
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.8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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.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. 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 | Hayes_Joseph_S_SF-1221-21-0377-W-1_Final_Order.pdf | 2024-03-11 | JOSEPH S. HAYES v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-1221-21-0377-W-1, March 11, 2024 | SF-1221-21-0377-W-1 | NP |
2,137 | https://www.mspb.gov/decisions/nonprecedential/Luce_Jeffrey_R_AT-1221-21-0594-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY R. LUCE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-21-0594-W-1
DATE: March 11, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey R. Luce , Milton, Florida, pro se.
Holly Buchanan , Eglin Air Force Base, Florida, 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. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
On June 24, 2019, the appellant received a term appointment not to exceed
June 24, 2024, to the position of GS-12 Airplane Pilot (Simulator Instructor).
Initial Appeal File (IAF), Tab 7 at 12. On January 5, 2020, the appellant’s
appointment was converted to a career-conditional appointment in the competitive
service, subject to a 2 -year probationary period.2 Id. at 15. The agency
terminated the appellant during his probationary period for unsatisfactory
conduct, effective February 17, 2021. Id. at 41-43; IAF, Tab 8 at 16. On April 8,
2021, the appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that he was terminated during his probationary period and subjected to a
hostile work environment in retaliation for his April 6, 2020 disclosure of a
coworker’s inappropriate workplace behavior on that date, and communicating
grievances to his supervisor on May 27, 2020. IAF, Tab 9 at 36-54, 68-72. By
letter dated June 22, 2021, OSC informed the appellant that it had made a final
determination to close his file and that he had a right to file an IRA appeal with
the Board. Id. at 56-57.
On August 10, 2021, the appellant filed a Board appeal asserting, among
other things, that he disclosed and made complaints that his former supervisor
violated the law, engaged in gross mismanagement and an abuse of authority, and
wasted funds. IAF, Tab 1 at 5. The administrative judge provided the appellant
notice of his burdens and elements of proof for an IRA appeal and afforded him
the opportunity to submit evidence and argument establishing jurisdiction. IAF,
Tab 3. The appellant responded that he had made a protected disclosure to his
supervisor on April 6, 2020, regarding his coworker’s inappropriate outburst
while the appellant was instructing a class that day, and he had a meeting with his
2 On December 27, 2021, President Biden signed into law the National Defense
Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541. The
statute repealed the 2 -year probationary period for Department of Defense appointments
made on or after December 31, 2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541,
1950. That statutory change has no effect on this case.
3
supervisor on May 27, 2020, to discuss multiple complaints about his work
situation, including his supervisor’s failure to act on his April 6, 2020 disclosure.
IAF, Tab 4 at 4-6, Tab 8 at 22-31.
Without holding the appellant’s requested hearing, the administrative judge
dismissed his IRA appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision
(ID) at 1, 15. The administrative judge found that the appellant exhausted his
remedies before OSC concerning his April 6, 2020 and May 27, 2020 disclosures,
his termination, and a hostile work environment. ID at 7-11. The administrative
judge then found that the appellant failed to show that he made a nonfrivolous
allegation that he made a protected disclosure. ID at 11-15. She explained that a
disinterested observer would not reasonably conclude that the appellant’s
disclosures evidenced one or more of the categories of wrongdoing listed in
5 U.S.C. § 2302(b)(8). Id.
The appellant has filed a petition for review of the initial decision.3
Petition for Review (PFR) File, Tab 1. In his petition, he identifies for the first
time specific agency policies that were purportedly violated and reiterates many
of his arguments from below. Id. at 4-13. The agency has filed a response. PFR
File, Tab 3.
ANALYSIS
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
3 With his petition for review, the appellant provides excerpts from an agency
investigation, Department of Defense guidance on the use of cloth face masks, his
termination notice and evidence apparently pertaining to the merits of his termination
(which mainly consist of emails). PFR File, Tab 1 at 15-146. Most of these documents
were already in the record before the administrative judge. IAF, Tab 4. To the extent
that the appellant has submitted new evidence, because we are remanding this matter,
the appellant may file relevant evidence on remand consistent with the Board’s
regulations and the administrative judge’s instructions.
4
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. The U.S. Court of
Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a
nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as
true, to state a claim that is plausible on its face.” Hessami v. Merit Systems
Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 6 (stating that a nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue).
As noted, the appellant has raised new arguments in his petition for 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). However, the Board may consider
evidence submitted for the first time on petition for review if it implicates the
Board’s jurisdiction and warrants an outcome different from that in the initial
decision. Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013).
Thus, in assessing whether the appellant has made a nonfrivolous allegation of
jurisdiction over his IRA appeal, we will consider the arguments raised for the
first time in the appellant’s petition for review.
The administrative judge correctly found that the appellant exhausted his
administrative remedies before OSC for two disclosures and two
personnel actions.
Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his
administrative remedies with OSC before seeking corrective action from the
Board. Skarada, 2022 MSPB 17, ¶ 7. The Board has clarified the substantive
5
requirements of exhaustion. Id.; see Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an appellant
has provided OSC with sufficient basis to pursue an investigation. Skarada,
2022 MSPB 17, ¶ 7. The Board’s jurisdiction is limited to those issues that have
been previously raised with OSC. Id. However, nothing precludes an appellant
from providing more detailed information in his Board appeal than he did before
OSC. Id.
The administrative judge found that the appellant exhausted his
administrative remedies with OSC with respect to his April 6 and May 27, 2020
disclosures and the personnel actions of his termination and a hostile work
environment. ID at 7-11. The parties do not challenge these findings on review,
and we discern no reason to disturb them. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant has made a nonfrivolous allegation that his April 6, 2020 disclosure
was protected.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). 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 any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.; see 5 U.S.C. § 2302(b)(8). Any doubt or ambiguity
6
as to whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 8 (2013).
The gravamen of the first purported protected disclosure raised in the
appellant’s OSC complaint was that on April 6, 2020, he disclosed to his
supervisor that a coworker, who was unmasked and not maintaining social
distancing, confronted him in an unprofessional and disruptive manner about the
appellant not wearing a mask while making a presentation to a group of students
even though the appellant was socially distanced from the students. IAF, Tab 9
at 36-54, 68-72. The appellant also asserted that the agency was not in
compliance with unspecified guidance from the Secretary of Defense. Id.
at 70-71.
In his petition for review, the appellant clarifies that the April 6, 2020
incident violated agency instructions, directives, and guidance regarding bullying,
harassment, and COVID-19 safety protocols. PFR File, Tab 1 at 4-6. He
provides specific legal citations to those documents, including Department of
Defense Instruction (DODI) 1020.03, Air Force Policy Directive (AFPD) 36-27,
and the Secretary of Defense’s April 5, 2020 guidance on the use of cloth face
coverings. Id. Although the appellant did not submit the first two documents
into the record before the Board, they are readily available on the internet, and
accordingly we take official notice of them.4 5 C.F.R. § 1201.64 (providing that
the Board may take official notice of matters that can be verified); see Graves v.
Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 19 n. 3 (2016) (finding that
the Board may take official notice of documents that are publicly available on the
internet).
4 DODI 1020.03 may be located on the internet at this address:
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/102003p.pdf (last
visited Mar. 11, 2024). The Policy Directive may be located at https://static.e-
publishing.af.mil/production/1/af_a1/publication/afpd36-27/afpd36-27.pdf (last visited
Mar. 11, 2024).
7
DODI 1020.03, Harassment Prevention and Response in the Armed Forces,
provides that the agency does not tolerate harassment and specifies that the
prohibition includes bullying and intimidation. DODI 1020.03, §§ 1.2, 3.1. A
review of the entire instruction indicates that it is applicable to members of the
armed forces and not civilian employees, such as the individual the appellant
complained about on April 6, 2020. Id., § 1.1. However, the fact that the
instruction only applies to members of the armed forces is not detrimental to the
appellant’s claim, as the Board will consider the appellant’s position and
experience when determining whether an appellant held a reasonable belief. See
Scott v. Department of Justice , 69 M.S.P.R. 211, 237-38 (1995), aff’d, 99 F.3d
1160 (Fed. Cir. 1996) (Table) (explaining that the appellant’s position as a
supervisor and experience as a law enforcement officer placed him in a position
to form a belief that documentary evidence had been altered). Thus, the pertinent
issue is the essential facts known to or readily ascertainable by the appellant in
consideration of his experience and position. In this case, the appellant does not
have any known expertise in statutory or regulatory interpretation, nor does he
work in a profession in which he may be expected to have such experience.
Therefore, the intricacies and nuances of the agency’s various instructions may
not have been known or understood by him. Moreover, the instruction he cites
directly references a separate instruction that applies to civilian employees.
DODI 1020.03, § 1.1b. Thus, under the circumstances, we find that the appellant
made a nonfrivolous allegation that he reasonably believed that he disclosed a
violation of an agency instruction.
The appellant also states in his petition for review that AFPD 36-27, ¶ 3.1
states that “[u]nlawful harassment in any context is a violation of Air Force
policy,” and that commanders, managers, and supervisors have a duty to maintain
a workplace free of unlawful discrimination and harassment. PFR File, Tab 1
at 5-6. The appellant also asserts that other provisions of the agency Policy
Directive were violated, such as a provision specifying that unlawful harassment
8
includes creating an intimidating, hostile work environment. Id.; AFPD, ¶ 3.2.1.
That provision, however, states that its application is limited to actions based on
characteristics set forth in another part of the directive, which identifies
characteristics such as race, color, sex, national origin, religion, or sexual
orientation. AFPD 36-27, ¶¶ 1.1, 3.2.1. As the appellant has not asserted that the
action against him was based on any of those characteristics, the provisions are
not applicable in his situation. As noted, however, the appellant is not a lawyer,
nor does he have any known expertise in statutory or regulatory interpretation,
and therefore, the intricacies and nuances of the agency’s various directives may
not have been known or understood by him. Thus, under the circumstances, we
find that the appellant made a nonfrivolous allegation that he reasonably believed
that he disclosed a violation of an agency directive.
Regarding the Secretary of Defense’s April 5, 2020 COVID guidance, that
document provides that agency personnel should wear a mask when they cannot
maintain a 6-foot distance from coworkers. PFR File, Tab 1 at 37. According to
the appellant, he disclosed that his coworker violated this policy when he walked
through the appellant’s assembled class without wearing a mask and without
maintaining proper distancing. Thus, the appellant nonfrivolously alleged a
disclosure of a violation of agency guidance concerning safety protocols intended
to protect against transmission of COVID..
Finally, we conclude that the appellant’s disclosure of alleged violations of
the above instruction, directive, and guidance constituted nonfrivolous allegations
that the agency violated rules, and therefore the disclosure falls within the ambit
of 5 U.S.C. § 2302(b)(8). See Rusin v. Department of the Treasury , 92 M.S.P.R.
298, ¶¶ 15-17 (2002) (finding that a determination of whether something is a
“rule” cannot be based merely on its title and noting that the Whistleblower
Protection Act is a remedial statute that must be broadly construed).
9
The appellant’s May 27, 2020 disclosures during the meeting with his supervisor
were protected under 5 U.S.C. § 2302(b)(8).
Throughout his appeal, the appellant refers to his May 27, 2020 meeting
with his supervisor as his grievance. E.g., IAF, Tabs 4-6, 8-11; PFR File, Tab 1
at 8-13. The exercise of a grievance right granted by any law, rule, or regulation
is protected if certain conditions are met under 5 U.S.C. § 2302(b)(9)(A). As the
administrative judge found, however, there is no evidence that the appellant filed
a grievance pursuant to a collective bargaining agreement or an agency
administrative grievance process. ID at 8 n.7. Instead, the appellant met with his
supervisor to discuss various workplace issues. Such a meeting does not
constitute the exercise of a grievance right granted by any law, rule, or regulation.
The appellant points to nothing on review showing that the administrative judge
erred in this regard.
Furthermore, even if the appellant did exercise a grievance right granted by
any law, rule, or regulation, the appellant failed to present a nonfrivolous
allegation of Board jurisdiction for another reason. Under 5 U.S.C. § 2302(b)(9)
(A), it is a protected activity to exercise “any appeal, complaint, or grievance
right granted by any law, rule, or regulation—(i) with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other than with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)].” However, of the two provisions, an
employee or applicant for employment may seek corrective action from the Board
only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a);
Edwards v. Department of Labor , 2022 MSPB 9, ¶ 24, aff’d, No. 2022-1967, 2023
WL 4398002 (Fed. Cir. July 7, 2023); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013). As explained above, in his May 27, 2020 meeting
with his supervisor, the appellant complained about various workplace issues,
but, even if the meeting did constitute the exercise of a grievance right, he does
not allege that he was seeking to remedy a violation of 5 U.S.C. § 2302(b)(8).
10
Thus, the May 27, 2020 meeting was not protected as the exercise of a grievance
right. See Edwards, 2022 MSPB 9, ¶ 25.
Nevertheless, the appellant’s statements during that meeting may be
protected under 5 U.S.C. § 2302(b)(8). The appellant alleged that he was the
victim of harassment and/or a hostile work environment and that during the
May 27, 2020 meeting he reiterated the April 6 incident discussed above, and
disclosed various workplace issues, many of which involved what he deemed to
be unfair treatment by his supervisor. IAF, Tab 9 at 44-48, 56, 68-72; PFR File,
Tab 1 at 8-9. Thus, the appellant made an allegation of harassment and/or a
hostile work environment supported by specific examples. Accordingly, we find
that he made a nonfrivolous allegation that he made a protected disclosure during
the May 27, 2020 meeting with his supervisor. See Ayers v. Department of Army ,
123 M.S.P.R. 11, ¶ 14 (2015) (holding that allegations of a pattern of harassment
by a supervisor may be a disclosure of an abuse of authority).
The appellant’s probationary termination and the creation of a hostile work
environment are covered personnel actions.
Having found that the appellant made nonfrivolous allegations of protected
disclosures, we now consider whether the appellant similarly alleged personnel
actions covered by the whistleblower protection statutes. As noted, the appellant
raised two personnel actions, a probationary termination and the creation of a
hostile work environment. Regarding his termination, such an action is clearly
covered. Lane v. Department of Homeland Security , 115 M.S.P.R. 342, ¶¶ 2-3,
13 (2010) (finding that an individual who was terminated during his probationary
period was subjected to a covered personnel action); Sirgo v. Department of
Justice, 66 M.S.P.R. 261, 267 (1995) (stating that a probationary termination is a
personnel action).
Regarding a hostile work environment claim, in Skarada, 2022 MSPB 17,
¶ 16, the Board explained that, although the term “hostile work environment” has
a particular meaning in other contexts, in a civil service law context the term
11
means a significant change in duties, responsibilities, or working conditions. The
Board further explained that, although “significant change” should be interpreted
broadly to include harassment and discrimination that could have a chilling effect
on whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by section
2302(a)(2)(A)(xii). Id.
In the instant case, the appellant alleged various actions that followed his
spring 2020 protected disclosures, such as denying sick leave requests, assigning
him a disproportionate amount of work, excluding him from work-related
communications, failing to provide training and to assign him a mentor, and
over-scrutinizing his work. IAF, Tab 8 at 20-32, Tab 9 at 36-54. Although none
of these allegations standing alone would definitively constitute a covered
personnel action, we find that the appellant has made a nonfrivolous allegation
that the cumulative effect of these actions constituted a significant change in his
working conditions. Skarada, 2022 MSPB 17, ¶¶ 15-16.
The appellant nonfrivolously alleged that his protected disclosures were a
contributing factor in the personnel actions.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 13 (2016). One way to establish this criterion is the knowledge/timing
test, under which an employee may nonfrivolously allege that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the official who took the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
12
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id.
Here, the appellant alleged that he made disclosures directly to his
supervisor regarding purported wrongdoing on April 6 and May 27, 2020, and his
supervisor made the initial determination to terminate him during his
probationary period and was responsible for making his work environment
hostile. IAF, Tab 9 at 44-46, 48 -49, 63-66. Thus, the appellant’s allegations
satisfy the knowledge prong of the test. With respect to the timing prong, the
decision on the appellant’s termination occurred in January and February 2021,
less than 1 year after the appellant’s disclosures, and the appellant described that
his work environment was hostile in the months following his May 27, 2020
disclosures. IAF, Tab 4 at 4-6, Tab 8 at 22-31, Tab 9 at 46, 58-66. The Board
has held that a personnel action taken within approximately 1 to 2 years of the
appellant’s disclosure satisfies the timing component of the knowledge/timing
test. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015).
Accordingly, we find that he has met the timing prong of the knowledge/timing
test with respect to both of his disclosures.
We remand this appeal to the Atlanta Regional Office.
Based on the foregoing, we find that the appellant nonfrivolously alleged
that his April 6 and May 27, 2020 disclosures were a contributing factor in the
agency’s personnel actions and he has established Board jurisdiction over his IRA
appeal. Accordingly, we remand the appeal to the regional office, where the
appellant is entitled to a hearing on the merits, in which he must prove his claims
by preponderant evidence. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230,
¶ 5; Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). If the
appellant meets his burden of proving that his protected disclosure was a
contributing factor in the agency’s personnel actions, the agency shall have the
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel actions in the absence of the protected activity. 5 U.S.C.
13
§ 1221(e)(2); Lu, 122 M.S.P.R. 335, ¶ 7; see Carr v. Social Security
Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999).
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | Luce_Jeffrey_R_AT-1221-21-0594-W-1__Remand_Order.pdf | 2024-03-11 | JEFFREY R. LUCE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-21-0594-W-1, March 11, 2024 | AT-1221-21-0594-W-1 | NP |
2,138 | https://www.mspb.gov/decisions/nonprecedential/Flannigan_Wesley_DC-0752-13-0367-I-4_Gaskin_Vanessa_DC-0752-13-0354-I-4_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESLEY FLANNIGAN AND
VANESSA GASKIN,
Appellants,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBERS
DC-0752-13-0367-I-4
DC-0752-13-0354-I-4
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
achelle S. Young , Esquire, Washington, D.C., for the appellants.
Shane McCammon , Esquire, and Avis McAllister , Esquire, Joint Base
Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellants have filed petitions for review of the initial decisions in the
above-captioned appeals, which sustained their removals. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 the petitioners’ appeals, we
conclude that the petitioners have not established any basis under
section 1201.115 for granting the petitions for review. Therefore, we DENY the
petitions for review.2 We AFFIRM the initial decisions, except as expressly
MODIFIED to: (1) VACATE the administrative judge’s finding that the
appellants committed plagiarism in failing to attribute a quotation to its source,
(2) set forth the proper standard for evaluating an affirmative defense of
retaliation for protected equal employment opportunity (EEO) activity; and
(3) VACATE the administrative judge’s finding that the agency showed by clear
and convincing evidence that it would have removed Gaskin in the absence of any
protected whistleblowing activity.
BACKGROUND
The appellants formerly served as civilian employees assigned to the
11th Force Support Squadron, Education and Training, located at the agency’s
Joint Base Anacostia Bolling (JBAB). Flannigan v. Department of the Air Force ,
MSPB Docket No. DC-0752-13-0367-I-1, Initial Appeal File ( Flannigan IAF),
Tab 7 at 16, Tab 8 at 57; Gaskin v. Department of the Air Force , MSPB Docket
No. DC-0752-13-0354-I-1, Initial Appeal File ( Gaskin IAF), Tab 8 at 14, 69.
Flannigan served as Chief of Education and Training, GS-1740-13, and Gaskin
served as an Education Services Specialist, GS-1740-11. Flannigan IAF, Tab 7
2 Because the petitions for review raise virtually identical issues regarding the initial
decisions, we have issued a single decision addressing both petitions for review. 2
at 16, Tab 8 at 57; Gaskin IAF, Tab 8 at 14, 69. In December 2012, the agency
proposed the appellants’ removals for alleged misconduct arising from their
completion of exams during their enrollment in the Air Command and Staff
College, and in the case of Flannigan, for additional misconduct. Flannigan IAF,
Tab 8 at 57-59; Gaskin IAF, Tab 8 at 69-71. Specifically, the agency proposed
Flannigan’s removal for conduct unbecoming of a Federal employee, falsifying
official documents, and lack of candor; and it proposed Gaskin’s removal for
conduct unbecoming of a Federal employee. Flannigan IAF, Tab 8 at 57-59;
Gaskin IAF, Tab 8 at 69-71. Each appellant provided an oral and written reply to
their respective proposed removal. Flannigan IAF, Tab 7 at 21-22, 34-105, Tab 8
at 3-55; Gaskin IAF, Tab 8 at 28-67. In February 2013, the agency removed the
appellants, effective February 19, 2013. Flannigan IAF, Tab 7 at 16, 18-19;
Gaskin IAF, Tab 8 at 14, 16-17.
The appellants timely appealed their removals to the Board and requested a
hearing. Flannigan IAF, Tab 1; Gaskin IAF, Tab 1. During the proceedings
below, the appeals were consolidated, and a joint, bifurcated hearing was held
over 3 days. Flannigan and Gaskin v. Department of the Air Force , MSPB
Docket No. DC-0752-15-0041-I-3, Consolidated Appeal File (I-3 CAF), Tab 35,
Hearing CD (HCD) 1, Tab 61, HCD 2. On March 1, 2017, the administrative
judge held a joint hearing concerning the appellants’ affirmative defense of due
process violations in the agency’s removal proceedings, and he subsequently
issued an order finding no due process violations. I-3 CAF, Tab 42. On
July 18-19, 2017, the administrative judge held a second joint hearing concerning
the merits of the removals and the appellants’ remaining affirmative defenses; he
subsequently severed the appeals and issued separate initial decisions sustaining
the appellants’ removals. Flannigan v. Department of the Air Force , MSPB
Docket No. DC-0752-13-0367-I-4, Appeal File ( Flannigan I-4 AF), Tabs 2-3;
Gaskin v. Department of the Air Force , MSPB Docket No. DC-0752-13-0354-I-4,
Appeal File (Gaskin I-4 AF), Tabs 2-3. Specifically, the administrative judge3
found that, in each case, the agency proved its charges, that a nexus existed
between the misconduct and the efficiency of the service, and that the penalty of
removal was reasonable. Flannigan I-4 AF, Tab 3, Initial Decision ( Flannigan
ID) at 5-25, 29; Gaskin I-4 AF, Tab 3, Initial Decision ( Gaskin ID) at 5-19, 23.
The administrative judge also found that neither appellant proved the affirmative
defense of retaliation for protected EEO activity, and Gaskin did not prove her
affirmative defense of whistleblower retaliation. Flannigan ID at 25-29; Gaskin
ID at 19-23.
The appellants have timely filed petitions for review challenging the initial
decisions. Flannigan v. Department of the Air Force , MSPB Docket No. DC-
0752-13-0367-I-4, Petition for Review ( Flannigan PFR) File, Tab 5; Gaskin v.
Department of the Air Force , MSPB Docket No. DC-0752-13-0354-I-4, Petition
for Review (Gaskin PFR) File, Tab 5. The agency has opposed the petitions.
Flannigan PFR File, Tab 7; Gaskin PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency did not violate the
appellants’ right to due process.
On review, the appellants argue that the administrative judge erred in
finding that they did not show that the agency denied them due process, as the
agency provided them with insufficient information about the charge of conduct
unbecoming a Federal employee for them to provide a meaningful response to the
notices of proposed removal. Flannigan PFR File, Tab 5 at 14-22; Gaskin PFR
File, Tab 5 at 15-23; see I-3 CAF, Tab 42. An employee must receive advanced
written notice stating the specific reasons for the proposed adverse action in
sufficient detail to allow the employee to make an informed reply to the action.
Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 5 (2009); see 5 U.S.C.
§ 7513(b)(1); Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546
(1985) (explaining that the essential requirements of constitutional due process
for a tenured public employee are notice of the charges against him, with an4
explanation of the evidence, and an opportunity for the employee to present his
account of events prior to the deprivation of his property right to continued
employment). The Board will not consider or sustain charges that are not
included in the proposal notice. Smith, 112 M.S.P.R. 173, ¶ 5.
Although the notices of proposed removal provided little information as to
the specific conduct underlying the charge of conduct unbecoming a Federal
employee, the administrative judge properly concluded that the notices and
supporting documentation provided sufficient information to convey the agency’s
allegations that the appellants improperly conspired in answering an essay exam
and six multiple choice exams, and the basis for those allegations. I-3 CAF,
Tab 42 at 3; see Flannigan IAF, Tab 8 at 57-203, Tab 9, Tab 10 at 3-76; Gaskin
IAF, Tab 8 at 69-80, Tab 9, Tab 10 at 3-158, 162-68. We agree with the
administrative judge that the lack of specific information as to how the appellants
accomplished cheating on the exams did not deprive the appellants of a
meaningful opportunity to respond to the charges, as the agency’s charges relied
upon circumstantial evidence, which it provided to the appellants. I-3 CAF,
Tab 42 at 3-4; see Creer v. U.S. Postal Service , 62 M.S.P.R. 656, 659-60 (1994)
(holding that circumstantial evidence may be used to satisfy an agency’s burden
of proof); see also Lewis v. Department of Agriculture , 268 F. App’x 952, 958
(Fed. Cir. 2008) (nonprecedential) (observing that it may be inherent in the nature
of the charge that great specificity is not possible).3 Additionally, the record
supports the administrative judge’s finding that the appellants’ replies reflected
that they understood the charges and provided specific responses to them.
I-3 CAF, Tab 42 at 4; see Yinat v. Department of the Army , 101 M.S.P.R. 328,
¶ 15 (2005) (providing that, when an appellant comes forward and refutes a
charge made against him, the Board cannot find that he was not given notice of
3 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).5
the charge). Accordingly, we affirm the administrative judge’s conclusion that
the appellants were afforded sufficient due process.
The administrative judge properly considered witness testimony in finding that
the agency proved its charges.
On review, the appellants argue that the administrative judge erred in
relying on the agency’s expert witness testimony in finding that the agency
supported its charges of conduct unbecoming a Federal employee. Flannigan
PFR File, Tab 5 at 22-28; Gaskin PFR File, Tab 5 at 23-29. The appellants assert
that the agency’s expert testimony was not reliable because the sample size he
used to compare the appellants’ answers on each multiple choice exam to those of
other test-takers was too small, and the approach he used to compensate for a
small sample size deviated from the traditional statistical approach and was not
published or peer-reviewed. Flannigan PFR File, Tab 5 at 24-28; Gaskin PFR
File, Tab 5 at 24-29. The administrative judge acknowledged these factors, but
he concluded that the expert witness presented strong, highly credible evidence in
support of his methodology. Flannigan ID at 11-18; Gaskin ID at 10-17.
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. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsupported by the record, Redschlag v. Department
of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative
judge’s demeanor-based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372
(Fed. Cir. 2016).
The appellants offer no support for their assertion that the principles set
forth in Daubert v. Merrell Dow Pharmaceuticals , Inc., 509 U.S. 579 (1993),
pertaining to the admissibility of expert testimony, are binding on the Board, and6
we can find none. See Flannigan PFR File, Tab 5 at 23; Gaskin PFR File, Tab 5
at 24. The Federal Rules of Evidence are used as nonbinding guidance by the
Board. Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 35 (2010),
aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other grounds by
Department of Health and Human Services v. Jarboe , 2023 MSPB 22. The
factors espoused by the U.S. Supreme Court in Daubert are based on its
interpretation of the Federal Rules of Evidence and are similarly not binding on
the Board.4 See Daubert, 509 U.S. at 586-95 (finding that the adoption of the
Federal Rules of Evidence superseded the “general acceptance” test for
determining the admissibility of expert opinion based on a scientific technique
formulated in Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923), and
interpreting Rule 702 of the Federal Rules of Evidence). Based upon our review
of the record, the administrative judge properly accorded weight to the expert
testimony, consistent with the Federal Rules of Evidence, particularly where the
4 Moreover, Daubert and its progeny apply to the admissibility of evidence, whereas the
appellants’ arguments go to the weight of the expert testimony. Nevertheless, the
difference between admissibility and weight is in many instances a close question, and
our reviewing court has held that when the reliability of expert testimony has been
raised, in assigning weight to the testimony, a trial court acting as a fact finder should
ordinarily take into account, among other considerations which may bear on the
reliability of expert testimony, factors which have been authoritatively identified as
important. Libas, Ltd. v. United States , 193 F.3d 1361, 1366-67 (Fed. Cir. 1999).
Federal Rule of Evidence 702, amended in response to Daubert and its progeny, states
that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702; Fed. R. Evid. 702 advisory committee’s note.7
expert witness’ methodology was derived from generally accepted statistical
techniques and designed to address the shortcomings of a small sample size, the
expert witness consulted with other experts in his field about his modified
methodology, and the administrative judge found his testimony to be highly
credible. HCD 2 (testimony of the expert witness); Flannigan ID at 11-18;
Gaskin ID at 10-17; cf. Summit 6, LLC v. Samsung Electronics Co. , Ltd., 802 F.3d
1283, 1298 (Fed. Cir. 2015) (noting that the fact that methodology is not
peer-reviewed or published “does not necessitate its exclusion”). Moreover, the
record reflects that the administrative judge considered the totality of the
evidence in finding that the agency proved its charges of conduct unbecoming a
Federal employee.5 Flannigan ID at 5-19; Gaskin ID at 5-18.
The appellants also appear to allege that the administrative judge erred in
crediting the testimony of an Air University official in finding that the appellants
collaborated on their essay exams because the official’s testimony that she did not
compare the appellants’ essays to those of other students conflicted with her
conclusion that the appellants inadequately explained the similarities in their
essays. Flannigan PFR File, Tab 5 at 28-29; Gaskin, PFR File, Tab 5 at 29; see
Flannigan ID at 7-11; Gaskin ID at 6-10. The administrative judge did not
address the Air University official’s testimony that she did not compare the
appellants’ essays to other essays; however, his failure to mention it does not
mean that he did not consider it in crediting the official’s testimony. Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
5 In particular, the administrative judge first compared the appellants’ essay exams
line-by-line and observed that the essays contained stunning parallels, including the use
of identical, atypical language at similar junctures in the essays. Flannigan ID at 7-11;
Gaskin ID at 6-10. The administrative judge then reviewed the appellants’ multiple
choice exams, noting that over the six exams upon which the appellants allegedly
cheated, the appellants posted 289 matching answers out of 300 total questions, and
most of the answers were identical, whether right or wrong. Flannigan ID at 11-19;
Gaskin ID at 10-18. For example, the administrative judge observed that on the third
multiple choice exam, each appellant missed the exact same 15 questions and provided
matching wrong answers, and that a similar pattern repeated itself throughout the
exams. Flannigan ID at 13; Gaskin ID at 12. 8
776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, this testimony did not conflict
with other aspects of her testimony; rather, it was evidence to be weighed in
assessing the strength of her conclusions. HCD 2 (testimony of the Air
University official). While such a comparison would have strengthened her
conclusions, the official nevertheless provided a detailed assessment of the
similarities between the appellants’ essay exams and based her conclusions on her
experience in testing and having read 60 to 100 other student essay exams during
her tenure at Air University. Id. Accordingly, we find no error in the
administrative judge’s findings crediting her conclusions that the appellants
collaborated on their essay exams.
The appellants further allege that the administrative judge precluded them
from presenting evidence regarding the standard practices and procedures for
testing at JBAB and subsequently relied on inaccurate assumptions about testing
procedures. Flannigan PFR File, Tab 5 at 29-30; Gaskin, PFR File, Tab 5 at 30.
Our review of the July 18, 2017 hearing record does not reflect that the
administrative judge excluded such evidence, and the appellants have not cited to
the record to support their allegation; thus, we cannot conclude that an error
occurred. HCD 2 (testimony of the Air University official, test control officer,
expert witness, and former test control officer). Moreover, as the appellants
acknowledge in their petition, they presented the testimony of a former test
control officer, who testified at length about testing procedures.6 Flannigan PFR
File, Tab 5 at 29; Gaskin PFR File, Tab 5 at 30. The appellants do not explain
how additional testimony would have affected the administrative judge’s finding
that Flannigan’s failure to sign a paper log-in sheet for his multiple choice exams
was unusual and inappropriate, which we find to be supported by the record.
6 The only evidence that the administrative judge excluded during the former test
control officer’s testimony was a testing standard operating procedure to which the
agency objected as irrelevant. HCD 2 (testimony of the former test control officer).
The administrative judge sustained the objection but informed the appellants’ counsel
that she could reintroduce the document should the agency raise the issue to which it
was relevant later in the proceedings. Id.9
Flannigan ID at 12-13; Gaskin ID at 11-12. Accordingly, we find that the
administrative judge properly sustained the charge of conduct unbecoming a
Federal employee brought against both appellants.7
On review, the appellants do not dispute the administrative judge’s findings
that the agency proved the remaining charges against Flannigan of falsifying
official documents and lack of candor, and they do not dispute that the agency
proved that there was a nexus between the grounds for the appellants’ removals
and the efficiency of the service, and the penalties of removal fell within the
tolerable limits of reasonableness, and we discern no reason to disturb these
findings. Flannigan ID at 19-25; Gaskin ID at 18-19; see Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on the issue of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge’s discussion of the appellants’ prima facie case of EEO
retaliation is modified to reflect the correct standard for evaluating an affirmative
defense of retaliation for protected EEO activity.
The appellants do not challenge the administrative judge’s findings that
neither appellant proved their affirmative defense of retaliation for protected EEO
7 In concluding that the agency proved its charge of conduct unbecoming a Federal
employee, the administrative judge also found that the appellants violated Air Force
Instruction (AUI) 36-2309 when they failed to attribute a quotation to its source in each
of their essay exams. Flannigan ID at 11; Gaskin ID at 10. The agency did not identify
this specific violation in support of the charge of conduct unbecoming a Federal
employee, and it appears to have been first identified as a potential violation of the AUI
during hearing testimony. See Flannigan IAF, Tabs 7-10; Gaskin IAF, Tabs 8-10;
HCD 2 (testimony of the Air University official and the appellants). As the agency did
not include this violation in its charge of conduct unbecoming, and the appellants did
not have notice of the violation, to the extent that the administrative judge concluded
that this constituted another violation of AUI 36-2309 in support of the charge of
conduct unbecoming a Federal employee, his findings were in error, and we vacate this
section of the initial decision. See Smith, 112 M.S.P.R. 173, ¶¶ 6-7 (concluding that the
administrative judge improperly considered a specification that was not set forth in the
proposed removal or decision sustaining the removal).10
activity. Flannigan ID at 25-29; Gaskin ID at 19-23. However, we modify the
administrative judge’s findings on the appellant’s EEO retaliations claims to
apply the standards as set forth in recent law. An appellant may prove a claim of
discrimination based on age, race, color, religion, sex, or national origin under
the motivating factor standard, in other words, by proving that prohibited
discrimination played “any part” in the contested action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22. Claims of retaliation for
opposing discrimination in violation of Title VII are analyzed under this same
framework. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 32; Pridgen,
2022 MSPB 31, ¶ 30. However, a but-for causation standard is applicable to
Americans with Disabilities Act (ADA) retaliation claims. Desjardin,
2023 MSPB 6, ¶ 33. An appellant may prevail on such a claim by showing that
retaliation was a but-for cause of the agency’s action. Desjardin, 2023 MSPB 6,
¶ 33; Pridgen, 2022 MSPB 31, ¶ 44-47. The but-for standard is more stringent
than the motivating factor standard. Desjardin, 2023 MSPB 6, ¶ 31; Pridgen,
2022 MSPB 31, ¶ 47.
Here, appellant Flannigan claimed that the agency retaliated against him for
engaging in activity protected under the ADA. He has not challenged the
administrative judge’s finding that, based on the evidence as a whole, he failed to
meet the lesser burden of proving that his protected activity was a motivating
factor in his removal. Because we agree with the administrative judge’s finding
that the appellant failed to meet this lesser burden, we also find that he failed to
meet the more stringent but-for standard that applies to his retaliation claim. See
Desjardin, 2023 MSPB 6, ¶ 33.
It is not clear whether appellant Gaskin’s EEO retaliation claim was
grounded in activity protected by Title VII or whether, like in Flannigan’s case,
her retaliation claim was based on protected ADA activity, in which case she
would be required to show that retaliation was a but-for cause of the agency’s
decision to remove her. However, as in Flannigan’s case, she does not challenge11
on review the administrative judge’s finding that she failed to meet the lesser
motivating factor standard. Therefore, even if the more stringent but-for standard
applied in her case, her failure to meet the lesser motivating factor standard
means she also failed to meet the more stringent but-for standard that would
apply if her claim were an ADA retaliation claim. See Desjardin, 2023 MSPB 6,
¶ 33. Accordingly, we conclude that both appellants failed to prove this
affirmative defense, as modified to incorporate the correct standard identified in
Pridgen and Desjardin.
The administrative judge’s finding that the agency proved that it would have
removed Gaskin in the absence of any protected whistleblowing activity
is vacated.
On review, Gaskin does not challenge the administrative judge’s finding
that she did not show that her disclosure to the agency Inspector General was a
contributing factor in her removal. Gaskin ID at 21, 21 n.16. Given the
administrative judge’s conclusion that the appellant did not make the requisite
showing, it was improper for him to determine whether the agency would have
taken the same action in the absence of the appellant’s alleged whistleblowing
activity. 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
test unless it has first determined that the appellant established her prima facie
case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the
administrative judge’s finding that the agency proved by clear and convincing
evidence that its removal was taken for legitimate reasons.8 ID at 21 n.16.
8 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.12
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any14
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s15
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Flannigan_Wesley_DC-0752-13-0367-I-4_Gaskin_Vanessa_DC-0752-13-0354-I-4_Final_Order.pdf | 2024-03-11 | null | DC-0752-15-0041-I-3 | NP |
2,139 | https://www.mspb.gov/decisions/nonprecedential/Huebschman_Benjamin_D_DC-3330-19-0552-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN HUEBSCHMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3330-19-0552-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin Huebschman , Beltsville, Maryland, pro se.
Steven Whittington , Esquire, Warren, Michigan, 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 under the Veterans Employment
Opportunities Act of 1998 (VEOA). For the reasons discussed below, we
GRANT the appellant’s petition for review, REVERSE the initial decision, and
GRANT the appellant’s request for corrective action.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was honorably discharged from the U.S. Army after
approximately 7 years of active duty service. Initial Appeal File (IAF), Tab 4
at 6-8. On March 13, 2019, the agency posted a vacancy announcement for the
position of NH-4 Project Manager. IAF, Tab 6 at 9-16. The vacancy
announcement indicated that it was open to “Current Department of Army
Civilian Employees,” “Current Permanent Department of Defense (DOD) Civilian
Employee (non-Army),” “Interagency Career Transition Assistance Plan,” and
“Priority Placement Program (PPP), Program S (Military Spouse) registrant.” Id.
at 11. The appellant applied for the position, but on or about April 19, 2019, his
application was automatically rejected because he did not select an “area of
consideration,” i.e., one of the four categories listed above. IAF, Tab 1 at 5,
Tab 4 at 5, Tab 6 at 5. It appears that the appellant did not select an area of
consideration because he did not fall within any of these four categories. IAF,
Tab 5 at 5.
On April 30, 2019, the appellant filed a complaint with the Department of
Labor (DOL), arguing that, as an honorably discharged veteran, he was qualified
to apply for the position, and the agency should have considered his application.
IAF, Tab 1 at 7. On May 15, 2019, DOL closed its file and informed the
appellant of his right to file a Board appeal. Id. at 9.
The appellant timely filed a Board appeal and requested a hearing. IAF,
Tab 1. The administrative judge issued a jurisdictional order, informing the
appellant of the standards for establishing jurisdiction over a VEOA appeal and
ordering the parties to file evidence and argument on the issue. IAF, Tab 3. The
appellant responded, arguing that the agency violated his right to compete for the
Project Manager position under 5 U.S.C. § 3304(f)(1). IAF, Tab 4. The agency
also responded, arguing that it had “erroneously included the Interagency Career
Transition Assistance Plan (ICTAP) to the applicable Areas of Consideration”
and did not actually consider any ICTAP candidates. IAF, Tab 6 at 5-7.2
Therefore, the agency argued, it did not actually consider any candidates
from outside its own workforce, and so the right to compete provisions of
5 U.S.C. § 3304(f)(1) did not apply. Id. at 6-7.
After considering the parties’ submissions, the administrative judge issued
an initial decision denying corrective action on the merits without a hearing.
IAF, Tab 7. She found that, although the appellant established jurisdiction over
his appeal, there was no dispute of material fact and the agency was entitled to
judgment as a matter of law. IAF, Tab 7, Initial Decision (ID) at 1-6.
Specifically, the administrative judge found that the inclusion of ICTAP
candidates in the vacancy announcement was a clerical error, the agency did not
actually accept applications from candidates outside its own workforce, and
therefore, the appellant did not have a right to compete for the position in
question under 5 U.S.C. § 3304(f)(1). ID at 1-6.
The appellant has filed a petition for review, arguing that the administrative
judge erred in denying his hearing request and in accepting the agency’s
unsupported allegations as true. Petition for Review (PFR) File, Tab 1 at 3-4,
6-7, 9-10. He disputes the veracity of the agency’s claim that its inclusion of
ICTAP candidates was a clerical error and argues that other areas of consideration
were outside the agency’s own workforce because they included military spouses
and non-Army DOD employees. Id. at 4, 6-8. The appellant also urges the Board
to reconsider its ruling in Vassallo v. Department of Defense , 122 M.S.P.R. 156,
aff’d, 797 F.3d 1327 (Fed. Cir. 2015). PFR File, Tab 1 at 10-15. The agency has
filed a response in opposition. PFR File, Tab 3.
ANALYSIS
To establish Board jurisdiction over a “right to compete” VEOA claim
under 5 U.S.C. § 3330a(a)(1)(B), an appellant must (1) show that he exhausted
his remedy with DOL and (2) make nonfrivolous allegations that (i) he is a
veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took3
place on or after December 10, 2004, and (iii) the agency denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its own
workforce in violation of 5 U.S.C. § 3304(f)(1). Becker v. Department of
Veterans Affairs , 115 M.S.P.R. 409, ¶ 5 (2010). The administrative judge in this
case found that the appellant satisfied all of these jurisdictional requirements, and
for the reasons explained in the initial decision, we agree. ID at 3-4.
To prevail on the merits of a right to compete claim, the appellant must
prove jurisdictional elements (2)(i), (ii), and (iii) by a preponderance of the
evidence. Graves v. Department of Veterans Affairs , 114 M.S.P.R. 209, ¶ 19
(2010). In this case, there does not seem to be any dispute about the appellant’s
veteran status or the date of the action at issue. IAF, Tab 4 at 3, Tab 6 at 5-6.
Therefore, this appeal turns on whether the appellant can prove that the agency
denied him the opportunity to compete in a selection process in which the agency
was accepting applications from individuals outside its own workforce. The
administrative judge found that there was no dispute of material fact on this issue
in light of the agency’s assertion that the inclusion of ICTAP candidates was a
clerical error, and for that reason, she denied the appellant’s request for
corrective action without a hearing. ID at 1, 4-6. For the following reasons, we
disagree.
The Board may decide the merits of a VEOA appeal without a hearing
when there is no genuine dispute of material fact and one party must prevail as a
matter of law. Waters-Lindo v. Department of Defense , 112 M.S.P.R. 1, ¶ 5
(2009); see 5 C.F.R. § 1208.23(b) (stating that an administrative judge may
provide a hearing if the Board’s jurisdiction has been established over a timely
VEOA appeal). We agree with the administrative judge that these circumstances
are present in this case, but we find that it is the appellant who must prevail. As
explained above, the vacancy announcement was open to military spouses4
registered under the agency’s Priority Placement Program, Program S.2 IAF,
Tab 6 at 11. Registration in Program S is open to “spouses of active duty military
members of the U.S. Armed forces.” Department of Defense Priority Placement
Program (PPP) Handbook, § 14(C)(1) (July 2011). Some restrictions apply, but
there is no requirement that a Program S registrant must be a current Federal
employee, much less an employee of the agency. Id., § 14(C). We find that, in
soliciting applications from Program S registrants, the agency was accepting
applications from individuals outside its own workforce. Therefore, the appellant
had a right to compete for the position in question under 5 U.S.C. § 3304(f)(1),
and we find that the agency violated that right when it rejected his application.
Having thus found that the agency violated the appellant’s right to
compete, we decline his invitation to overrule Vassallo for the following reasons.
First, the Board’s ruling in Vassallo is not controlling as to the outcome of the
appeal, and the appellant could obtain no further relief in this case if the Board
were to revisit Vassallo at this time. See Thompson v. Department of the Army ,
122 M.S.P.R. 372, ¶ 30 n.12 (2015) (declining to reach issues that would not
change the outcome of the appeal). Second, even if the Board were inclined to
overrule Vassallo, the United States Court of Appeals for the Federal Circuit has
affirmed the Board’s Opinion and Order in that case in a precedential decision,
both as to its reasoning and its result. PFR File, Tab 3 at 6; see Vassallo,
797 F.3d 1327. Precedential decisions of the Federal Circuit are controlling
authority for the Board, and the Board is bound to follow them unless they are
overruled by the court sitting en banc. Conner v. Office of Personnel
Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d per curiam , 620 F. App’x 892
(Fed. Cir. 2015).
Because this appeal has been resolved on the grounds identified above, we
also decline to reach the following issues: (1) Whether the agency’s inclusion of
2 Unlike ICTAP, the agency has not alleged that the inclusion of registrants under
Program S was the result of any sort of clerical error.5
ICTAP was, in fact, an error, a matter which the appellant disputes on review,
PFR File, Tab 1 at 6-8, 14; (2) whether the agency’s alleged clerical error would
have been material in any event, see Gingery v. Department of Veterans Affairs ,
114 M.S.P.R. 175, ¶¶ 9-10 (2010) (explaining that when an agency solicited
external and internal candidates, it violated the appellant’s right to compete by
considering only internal candidates), overruled on other grounds by Oram v.
Department of the Navy , 2022 MSPB 30; Boctor v. U.S. Postal Service ,
110 M.S.P.R. 580, ¶ 9 (2009) (same); and (3) whether the agency’s solicitation of
applications from current employees throughout DOD constituted acceptance of
applications of individuals from outside its own workforce, see Washburn v.
Department of the Air Force , 119 M.S.P.R. 265, ¶¶ 6-11 (2013) (concluding that
the Department of the Air Force and not DOD was the “agency” for purposes of
5 U.S.C. § 3304(f)(1)).
ORDER
We ORDER the agency to reconstruct the hiring process for the Project
Manager position at issue, and to consider the appellant’s application in that
process. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir.
1984). The agency must complete this action no later than 30 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 not6
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the code of Federal Regulation, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
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
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
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Huebschman_Benjamin_D_DC-3330-19-0552-I-1 Final Order.pdf | 2024-03-11 | BENJAMIN HUEBSCHMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3330-19-0552-I-1, March 11, 2024 | DC-3330-19-0552-I-1 | NP |
2,140 | https://www.mspb.gov/decisions/nonprecedential/Flowers_Jacquelyn_L_DA-1221-22-0074-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELYN L. FLOWERS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-22-0074-W-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
acquelyn L. Flowers , Pine Bluff, Arkansas, pro se.
Matthew G. Neumann , Rock Island, Illinois, 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 individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues the administrative judge did not consider
the merits of certain actions taken by the agency. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 review2 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 The appellant has submitted additional evidence on review in the form of documents
concerning her equal employment opportunity (EEO) complaint and her requests for
restored leave. Petition for Review File, Tab 1 at 4-50. The documents concerning the
appellant’s requests for restored leave are already part of the record and are not new.
Initial Appeal File, Tab 4; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980). Regarding her EEO documents, the appellant has not demonstrated that they
were unavailable before the record closed despite due diligence or that they are of
sufficient weight to warrant an outcome different from that of the initial decision.
Cleaton v. Department of Justice , 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126
(Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). Thus, we decline to address them further.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Flowers_Jacquelyn_L_DA-1221-22-0074-W-1_Final_Order.pdf | 2024-03-11 | JACQUELYN L. FLOWERS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-22-0074-W-1, March 11, 2024 | DA-1221-22-0074-W-1 | NP |
2,141 | https://www.mspb.gov/decisions/nonprecedential/Pelfrey_David_L_SF-3443-22-0421-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. PELFREY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
SF-3443-22-0421-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid L. Pelfrey , San Francisco, California, pro se.
Jennifer K. Trujillo , 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 this appeal challenging his nonselection for a promotion for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant reasserts that his nonselection falls within the
Board’s jurisdiction as an appealable employment practice based on the agency’s
choice of subject matter experts for the vacancy, which he alleges led to other
errors by the agency in the selection process. Petition for Review (PFR) File,
Tab 1 at 5-6; Initial Appeal File (IAF), Tab 1 at 5, Tab 11 at 10 -14. The
appellant also reasserts that his nonselection for the vacancy was in retaliation for
several alleged protected disclosures or activities, including his refusal to
discipline an employee, his open criticism of managers for their response to the
COVID-19 pandemic, and his affiliation with a union. PFR File, Tab 1 at 5-6,
15-20; IAF, Tab 11 at 5-9. The appellant’s jurisdictional arguments on review
are unavailing, and we find no basis for disturbing the initial decision. IAF,
Tab 12, Initial Decision.
For the first time on review, the appellant presents evidence of text
messages from a senior manager who agreed with the appellant’s concerns
regarding the agency’s poor choice of subject matter experts. PFR File, Tab 1
at 6, 13. He has not shown that the information contained in the text messages
was unavailable before the close of the record below or that it is material to the
issue of the Board’s jurisdiction. PFR File, Tab 1 at 6, 13. Accordingly, it is not
a basis for granting his petition for review. See Spivey v. Department of Justice ,2
2022 MSPB 24, ¶ 15; Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980).
The appellant also argues that the administrative judge erred by issuing an
initial decision after the appellant submitted a pleading addressing jurisdiction in
response to the agency’s motion to dismiss but 1 day prior to the deadline for his
response to the agency’s motion to dismiss. PFR File, Tab 1 at 4. Even if we
were to assume that the administrative judge erred in closing the record early,
that error is not a reason for granting the appellant’s petition for review because it
did not prejudice his substantive rights. See Karapinka v. Department of Energy ,
6 M.S.P.R. 124, 127 (1981) (holding that the administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights). Considering all the appellant’s pleadings, below and
on review, we find that the appellant has not established Board jurisdiction over
his appeal.2 Accordingly, the initial decision, dismissing the appeal for lack of
jurisdiction, is affirmed.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 For this reason, we also need not address the untimeliness of the appellant’s initial
appeal or jurisdictional response or his arguments for excusing the same. 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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S.420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C.______________________________
Gina K. Grippando
Clerk of the Board7 | Pelfrey_David_L_SF-3443-22-0421-I-1_Final_Order.pdf | 2024-03-11 | DAVID L. PELFREY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-3443-22-0421-I-1, March 11, 2024 | SF-3443-22-0421-I-1 | NP |
2,142 | https://www.mspb.gov/decisions/nonprecedential/Waters_Sterling_J_DC-315H-22-0521-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STERLING JOHNATHAN WATERS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-22-0521-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
anya F.P. Herring , Greensboro, North Carolina, for the appellant.
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 appeal for lack of jurisdiction on the basis that he was serving a
probationary period at the time of his termination. On petition for review, the
appellant argues that he meets the definition of employee because he completed
1 year of service . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 The appellant’s arguments regarding the length of the required probationary period are
misplaced. In 2015, the probationary period for individuals appointed to a competitive
service position in the Department of Defense (DOD), including the military
departments, was extended to a 2-year period and, as a result, such individuals only
qualified as an employee if they had completed 2 years of current continuous service.
See Bryant v. Department of the Army , 2022 MSPB 1, ¶¶ 8-10. The National Defense
Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541, repealed
the 2-year probationary period for DOD appointments made on or after December 31,
2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. See Bryant, 2022 MSPB 1,
¶ 8. The appellant was appointed to his competitive service position with the agency on
August 3, 2020, and thus he was required to serve a 2-year probationary period.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Waters_Sterling_J_DC-315H-22-0521-I-1_Final_Order.pdf | 2024-03-11 | STERLING JOHNATHAN WATERS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-22-0521-I-1, March 11, 2024 | DC-315H-22-0521-I-1 | NP |
2,143 | https://www.mspb.gov/decisions/nonprecedential/Von_Kelsing_Angelique_SF-0432-21-0291-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELIQUE VON KELSING,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0432-21-0291-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
effrey G. Letts , Ruther Glen, Virginia, for the appellant.
Michele A. Forte , Esquire, Bremerton, Washington, 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 her removal for unacceptable performance under 5 U.S.C. § 4303. On
petition for review, the appellant challenges the administrative judge’s finding
that the agency failed to communicate her critical elements and performance
standards as required by 5 U.S.C. § 4302(c)(2). Petition for Review (PFR) File,
Tab 1 at 4-6. She further argues that her performance standards were ambiguous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
and unduly vague and that the agency improperly found her performance to be
unacceptable and placed her on a performance improvement plan, committed
harmful error in her removal by violating its own procedures requiring that she be
provided with a copy of her performance plan, and retaliated against her for prior
equal employment opportunity activity. PFR File, Tab 1 at 9-16.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review 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
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. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
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. | Von_Kelsing_Angelique_SF-0432-21-0291-I-1_Final_Order.pdf | 2024-03-11 | ANGELIQUE VON KELSING v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0432-21-0291-I-1, March 11, 2024 | SF-0432-21-0291-I-1 | NP |
2,144 | https://www.mspb.gov/decisions/nonprecedential/Skrettas_George_D_CH-1221-20-0549-P-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE D. SKRETTAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0549-P-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George D. Skrettas , Ann Arbor, Michigan, pro se.
Amy C. Slameka , Esquire, Detroit, Michigan, 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 motion for consequential and compensatory damages. On petition for
review, the appellant requests, among other things, $8,000,000 for “pension and
back wages and other monetary compensation for lost wages,” punitive damages,
and compensatory damages for various “personal and professional harm[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).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Regarding the appellant’s request on review for punitive damages, punitive
damages are not provided for in the remedies the Board may order as corrective
action in an individual right of action appeal, and no other basis exists under law,
rule, or regulation for an award of punitive damages in such cases before the2
Board.2 5 U.S.C. § 1221(g); Cunningham v. Department of Veterans Affairs ,
91 M.S.P.R. 523, ¶ 3 (2002).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Although not raised by either party or the administrative judge, 5 U.S.C. § 1221(g)(4)
states that “[a]ny corrective action ordered under this section to correct a prohibited
personnel practice may include . . . damages reasonably incurred due to an agency
investigation of the employee, if such investigation was commenced, expanded, or
extended in retaliation for the disclosure or protected activity that formed the basis of
the corrective action.” According to the legislative history, section 1221(g)(4)
“create[d] an additional avenue for financial relief once an employee is able to prove a
claim under the [whistleblower protection statutes], if the employee can further
demonstrate that an investigation was undertaken in retaliation for the protected
disclosure.” S. Rep. No. 112-155, at 21 (2012). The administrative judge found in
analyzing the clear and convincing test in the underlying whistleblower reprisal appeal
that the need for the investigation into the appellant’s alleged misconduct related to a
transport ventilator far outweighed any motivation to retaliate against the appellant,
while the record showed that the accusation came not from management, but from
fellow respiratory therapists unaware of the appellant’s whistleblowing activity.
Skrettas v. Department of Veterans Affairs , MSPB Docket No. CH-1221-20-0549-W-1,
Initial Decision at 27 & n.10 (June 23, 2021). These findings were undisturbed on
review before the Board and the Federal Circuit. Skrettas v. Department of Veterans
Affairs, 2022-2075, slip op. (Fed. Cir. Apr. 11, 2023); Skrettas v. Department of
Veterans Affairs , MSPB Docket No. CH -1221-20-0549-W-1, Final Order (May 31,
2022). To the extent the appellant can be interpreted to have made a claim here under
5 U.S.C. § 1221(g)(4), he did not present any evidence on appeal or review to refute the
administrative judge’s findings regarding the accusation and ensuing investigation or
otherwise support such a claim despite the apparent belief that the accusation and
investigation constituted grounds for damages. We thus find no reason to afford the
appellant further opportunity to establish any claim under 5 U.S.C. § 1221(g)(4).
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.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 | Skrettas_George_D_CH-1221-20-0549-P-1__Final_Order.pdf | 2024-03-11 | GEORGE D. SKRETTAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0549-P-1, March 11, 2024 | CH-1221-20-0549-P-1 | NP |
2,145 | https://www.mspb.gov/decisions/nonprecedential/Skrettas_George_D_CH-1221-20-0549-C-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE D. SKRETTAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0549-C-2
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George D. Skrettas , Ann Arbor, Michigan, pro se.
Amy C. Slameka , Esquire, Detroit, Michigan, 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 compliance initial
decision, which denied the appellant’s petition for enforcement as moot, finding
that the agency was in full compliance with the Board’s May 31, 2022 Final
Order. On petition for review, the appellant reiterates his argument that the
agency was not in full compliance because it had not rescinded his May 1, 2018
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
mid-year progress review.2 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
dismiss the appellant’s petition for enforcement as moot, we AFFIRM the initial
decision.
The administrative judge denied the appellant’s petition for enforcement as
moot, finding that the agency was in compliance with the Board’s final decision.
Compliance File, Tab 14, Compliance Initial Decision at 1-2, 8. While we agree
with this finding, we must alter the terminology used by the administrative judge
in denying the appellant’s petition for enforcement as moot. The Board does not
retain jurisdiction over a petition for enforcement once an agency has submitted
2 The appellant attached numerous documents to his petition for review, many of which
appear to relate to the merits of the underlying appeal. Petition for Review File, Tab 1
at 14-130. The appellant has not explained the relevance of these documents to the
dispositive issues in this compliance action, and they do not provide a basis for
disturbing the compliance initial decision. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to warrant
an outcome different from that of the initial decision). Furthermore, to the extent that
the appellant is attempting to relitigate the merits of his underlying appeal, the Board
will not reconsider the merits of an appeal in an enforcement proceeding. Hocker v.
Department of Transportation , 63 M.S.P.R. 497, 505 (1994), aff’d, 64 F.3d 676
(Fed. Cir. 1995) (Table); 5 C.F.R. § 1201.113. 2
evidence of compliance, and therefore, the Board dismisses, not denies, a petition
for enforcement as moot. Garstkiewicz v. U.S. Postal Service , 46 M.S.P.R. 689,
690 (1991); Eikenberry v. Department of the Interior , 39 M.S.P.R. 119, 120-21
(1988). Here, because the agency is in full compliance with the Board’s final
decision, and there is no effective relief that the Board can provide, we modify
the initial decision to dismiss the appellant’s petition for enforcement as moot.
Milner v. U.S. Postal Service , 118 M.S.P.R. 600, ¶ 4 (2012) (explaining that an
issue is moot when there is no effective relief that the Board can provide) .
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.
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 | Skrettas_George_D_CH-1221-20-0549-C-2__Final_Order.pdf | 2024-03-11 | GEORGE D. SKRETTAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0549-C-2, March 11, 2024 | CH-1221-20-0549-C-2 | NP |
2,146 | https://www.mspb.gov/decisions/nonprecedential/Skrettas_George_D_CH-1221-20-0549-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE D. SKRETTAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0549-A-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George D. Skrettas , Ann Arbor, Michigan, pro se.
Amy C. Slameka , Detroit, Michigan, 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 motion for attorney fees . On petition for review, the appellant argues,
among other things, that he retained the services of an attorney “for all [of] the
[a]ppellant’s legal issues at his place of employment” and that he was in
“frequent contact” with the attorney about all of his employment matters.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 (PFR) File, Tab 1 at 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.2 5 C.F.R.
§ 1201.113(b).
2 With his petition for review, the appellant files a number of documents for the first
time, largely consisting of emails that establish that he copied the attorney on
communications and forwarded documents to the attorney related to his various cases.
PFR File, Tab 1 at 25-110. As an initial matter, the appellant has not shown that these
documents were unavailable prior to the close of the record below. Nevertheless, the
documents do not establish that the appellant is entitled to attorney fees, as they do not
prove that the attorney rendered legal services on his behalf in connection with this
Board appeal. See Kruger v. Department of Veterans Affairs , 95 M.S.P.R. 471, ¶ 7
(2004) (explaining that, to be entitled to attorney fees, an appellant must show, among
other things, that an attorney-client relationship exists pursuant to which counsel
rendered legal services on his behalf in connection with the Board proceeding).
Furthermore, the appellant has not submitted any documentation demonstrating the
number of hours the attorney allegedly worked on this appeal. Without such
information, the Board cannot determine the reasonable amount of attorney fees.
Brown v. Department of Health and Human Services , 42 M.S.P.R. 291, 296 (1989).
Thus, these documents provide no basis to disturb the initial decision. Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that, the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision). 2
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 | Skrettas_George_D_CH-1221-20-0549-A-1__Final_Order.pdf | 2024-03-11 | GEORGE D. SKRETTAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0549-A-1, March 11, 2024 | CH-1221-20-0549-A-1 | NP |
2,147 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Danius_AT-3330-19-0144-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIUS JACKSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3330-19-0144-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danius Jackson , Georgetown, Kentucky, pro se.
Michael J. Klein , Esquire, Baltimore, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA ). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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).
The appellant filed an appeal seeking corrective action under VEOA,
alleging that the agency violated his veterans’ preference rights when it did not
select him for a position as a Police Officer under vacancy announcement number
CBAJ-0266706-19-MP for vacancies in Chattanooga, Murfreesboro, and
Nashville, Tennessee. Initial Appeal File (IAF), Tab 1. In an August 8, 2019
initial decision, the administrative judge denied the appellant’s request for
corrective action because he found that the appellant failed to prove that the
agency violated his veterans’ preference rights under any statute or regulation.
IAF, Tab 12, Initial Decision (ID). In particular, the administrative judge found
that veterans’ preference rules did not apply to the vacancy announcement
because the agency utilized its Direct Hire Authority and, in any event, the
appellant was nonetheless afforded an opportunity to compete for the position
when the agency deemed him eligible for the position and referred his application
to the selecting official for consideration. ID at 5-6.
On review, the appellant asserts generally that the agency has engaged in
various alleged improper actions, such as disregarding his appeal before the Equal
2 In light of our decision, we do not address the timeliness of the appellant’s petition for
review.2
Employment Opportunity Commission, violating Federal statutes and regulations,
and engaging in retaliation and prohibited personnel practices. Petition for
Review (PFR) File, Tab 1 at 3-5. He also submits documents that appear to relate
to his discrimination complaints and various prior job announcements and job
offers for Police Officer positions. Id. at 6, 13-36. However, the appellant’s
petition for review does not contain any specific challenges or identify any
specific errors in the initial decision, and we find no basis to disturb the
administrative judge’s reasoned conclusions. 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.
To the extent the appellant is attempting to challenge the agency’s decision
to rescind his tentative job offer for a GS-0083-06 Police Officer position with
the agency’s Medical Center in Hampton, Virginia, PFR File, Tab 1 at 4-5, 7-12,
37-44, such arguments appear to relate to another Board appeal, which was
dismissed for lack of jurisdiction in an initial decision, and are not properly
before the Board in the instant appeal, see Jackson v. Department of Veterans
Affairs, MSPB Docket No. DC-3330-20-0413-I-1, Initial Decision at 1-2
(Mar. 23, 2020). The Office of the Clerk of the Board attempted to seek
clarification from the appellant concerning whether his petition for review filed in
the instant appeal should have been processed as a petition for review of the
initial decision in MSPB Docket No. DC-3330-20-0413-I-1 and informed the
appellant that if he did not respond to the Board’s notice seeking clarification, the
Board would consider his pleading only as a petition for review of the initial
decision in the instant appeal. PFR File, Tab 2. The appellant did not respond to
the Board’s notice. PFR File, Tab 3 at 1, n.*. Accordingly, we will not further
consider these arguments. 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Jackson_Danius_AT-3330-19-0144-I-1_Final_Order.pdf | 2024-03-11 | DANIUS JACKSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3330-19-0144-I-1, March 11, 2024 | AT-3330-19-0144-I-1 | NP |
2,148 | https://www.mspb.gov/decisions/nonprecedential/Rund_Karissa_DE-0845-19-0254-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARISSA RUND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-19-0254-I-1
DATE: March 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Douglas J. Rund , Englewood, Colorado, for the appellant.
Carla Robinson , 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she had been overpaid annuity benefits under the Federal
Employees’ Retirement System (FERS) and that she did not qualify for a waiver
of the overpayment. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that further reduction of the recovery schedule is appropriate, we AFFIRM
the initial decision.
BACKGROUND
Following the appellant’s diagnosis of recurrent, stage IV colon cancer, she
applied for a Federal Employees’ Retirement System (FERS) disability retirement
annuity, and OPM granted her application on March 23, 2018. Initial Appeal File
(IAF), Tab 10 at 56. On April 27, 2018, OPM issued the appellant an interim
payment of $15,235.84.2 Id. at 25-26. On June 16, 2018, OPM notified the
appellant that it had overpaid her by $18,093.62,3 indicating that her interim
payment exceeded the amount due and thus caused the overpayment. Id. at 27-28.
The notice set forth a repayment schedule of 36 installments in the amount of
2 This amount represents a gross payment of $18,700.00 for the period from June 1,
2017, to April 30, 2018, less $3,464.16 in Federal income tax, for a net payment of
$15,235.84. IAF, Tab 10 at 25.
3 This amount represents gross interim payments of $20,400.00 ($18,700.00 for the
period from June 1, 2017 to April 30, 2018 plus $1,700.00 for the period June 1, 2018,
to June 30, 2018) less the $2,306.38 net accrued annuity due to the appellant for
April 21 to May 30, 2018. IAF, Tab 10 at 6. 2
$502.60, with a final installment of $0.02. Id. at 28. The appellant requested that
OPM reconsider its decision regarding the existence and amount of the
overpayment and OPM issued a final reconsideration decision affirming its initial
decision, including the repayment schedule. Id. at 5-7, 23.
The appellant subsequently filed the instant appeal. IAF, Tab 1. The
administrative judge held a hearing and affirmed OPM’s reconsideration decision.
IAF, Tab 43, Initial Decision (ID). She found that OPM established that it
overpaid the appellant by $18,093.62, as the result of a gross payment of
$20,400.00 less the appellant’s net entitlement of $2,306.38. ID at 5-6. The
parties do not challenge this finding and we discern no basis to disturb it.
The administrative judge next found that the appellant had not met her
burden to have the overpayment waived. ID at 6. First, he determined that the
appellant established that she was without fault in receiving the overpayment. ID
at 6-8. Nevertheless, the administrative judge determined that the appellant failed
to meet her burden to demonstrate that recovery of the overpayment would be
against equity and good conscience because the set-aside rule required her to set
the overpayment amount aside pending recoupment by OPM. ID at 9-15. Lastly,
the administrative judge determined that the appellant failed to meet her burden
to establish that she was entitled to an adjustment to OPM’s repayment schedule
of 36 installments in the amount of $502.60, with a final installment of $0.02. ID
at 15-23.
In her petition for review, the appellant challenges the administrative
judge’s finding that recovery of the overpayment was not against equity and good
conscience. Petition for Review (PFR) File, Tab 1 at 4. She also argues that the
administrative judge improperly based his determination that OPM’s repayment
schedule would not cause financial hardship on her non-liquid assets. Id. at 4-5;
see 5 C.F.R. § 845.301(b). OPM has filed a response to the appellant’s petition
for review. PFR File, Tab 4. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of establishing her entitlement to a waiver
of recovery of the overpayment by substantial evidence. Boone v. Office of
Personnel Management , 119 M.S.P.R. 53, ¶ 5 (2012). Generally, the recovery of
a FERS overpayment should be waived if the recipient is without fault and
recovery would be against equity and good conscience. Id.; see 5 U.S.C.
§ 8470(b); 5 C.F.R. § 845.301. Recovery is against equity and good conscience
when it would cause financial hardship, the annuitant can show that she
relinquished a valuable right or changed positions for the worse, or recovery
would be unconscionable under the circumstances. Boone, 119 M.S.P.R. 53, ¶ 5;
5 C.F.R. § 845.303. However, individuals who suspect that they have received an
overpayment are expected to set aside the amount overpaid pending recoupment,
and, in the absence of exceptional circumstances, which do not include financial
hardship, recovery of the overpayment in such cases is not against equity and
good conscience. Boone, 119 M.S.P.R. 53, ¶ 6.
The administrative judge correctly found that recovery of the overpayment is not
against equity and good conscience .
As noted above, the appellant challenges the administrative judge’s finding
that recovery of the overpayment is not against equity and good conscience. PFR
File, Tab 1 at 4-5. For the following reasons, we agree with the administrative
judge.
The administrative judge found that the appellant was without fault. ID
at 6-9. In doing so, he relied on OPM’s Overpayment Policy Guidelines4 (OPM
Guidelines), which provide, in pertinent part, that an individual is not without
fault if she accepted a payment which she knew to be erroneous. ID at 7; IAF,
Tab 13 at 11. He found that the appellant’s passive receipt of the payment did not
indicate that she “accepted” the payment in any meaningful sense. ID at 7-8.
The administrative judge also declined to find that the appellant “should have
4 IAF, Tab 13, OPM Overpayment Policy Guidelines (1995). 4
known” that the payment was erroneous before she received OPM’s notice of the
overpayment. ID at 8.
However, he also found that the set-aside rule applied because the appellant
was either aware or reasonably should have suspected that the interim payment
was erroneous no later than the date that she received OPM’s overpayment notice,
which the administrative judge found was no later than July 13, 2018. ID
at 10-11; Boone, 119 M.S.P.R. 53, ¶ 6. The administrative judge determined that
the appellant’s subsequent attempt to call OPM demonstrated that she at least
suspected that the payment was erroneous, and that under those circumstances,
the principles of equity and good conscience obligated her to set the overpayment
aside pending recoupment by OPM . ID at 10-11; Boone, 119 M.S.P.R. 53, ¶ 6.
The administrative judge further found no exceptional circumstances, i.e., no
extremely egregious errors or delays by OPM, that would exempt the appellant
from the consequences of the set-aside rule and entitle her to a waiver of the
repayment. ID at 11-14; Boone, 119 M.S.P.R. 53, ¶ 6.
On review, the appellant does not challenge the administrative judge’s
finding that she was aware of the overpayment by at least July 13, 2018, and that
she therefore should have set the overpayment amount aside pending recoupment
by OPM. When the set-aside rule applies, as we agree it does here, financial
hardship is not considered an exceptional circumstance that would preclude the
collection of an overpayment. Boone, 119 M.S.P.R. 53, ¶¶ 5-6. Thus, the
appellant’s financial hardship does not make OPM’s collection of the
overpayment against equity and good conscience. ID at 10-15.
The appellant is entitled to a reduction in the repayment schedule .
The administrative judge found that the appellant’s monthly household
expenses exceeded her gross monthly household income by $242.78. ID at 21. In
arriving at that number, the administrative judge made several modifications to
the appellant’s claimed expenses and OPM’s adjustments to them. ID at 16-21.
Neither party challenges the administrative judge’s findings concerning the5
amount of the appellant’s gross income or monthly household expenses.
However, in considering the appellant’s monthly expenses, the administrative
judge failed to consider that, according to OPM’s Policy Guidelines, repayment
of the overpayment is an expense. Russell v. Office of Personnel Management ,
69 M.S.P.R. 125, 128 (1995); see OPM Guidelines, § I–D–9, IAF, Tab 13 at 18.
When the $502.60 monthly repayment amount is added to the appellant’s average
monthly household expenses, those expenses exceed her gross monthly household
income by $745.38.
In her petition for review, the appellant argues that the administrative judge
erred in considering non-liquid assets in determining that the repayment schedule
would not be a financial hardship. PFR File, Tab 1 at 4. The administrative
judge declined to modify the repayment schedule because, among other things, he
found that the appellant’s assets, both liquid and non-liquid, were substantial,
observing that the appellant’s Financial Resources Questionnaire reported
$11,368.15 in liquid assets,5 as well as $120,411.00 in her husband’s individual
retirement account, three cars valued at a total of $23,800.00, and a paid -off home
valued at $330,000.00. ID at 22; IAF, Tab 10 at 13. The administrative judge
further found that the appellant had converted liquid assets to non-liquid assets
after she received OPM’s overpayment notice, crediting the appellant’s
explanation that she used $4,278.28 out of the $15,235.84 post-tax overpayment
to help pay off her mortgage, $4,021.60 to pay a medical bill, and the remainder
to pay tax bills caused by the withdrawal of her Thrift Savings Plan (TSP) and to
pay off her house.6 ID at 22; IAF, Tab 19 at 6-7. Because the appellant could
have instead used existing assets and set the disputed funds aside pending
5 OPM’s guidelines suggest that, as a general rule, $5,000.00 of liquid assets should
generally be considered available in making a financial hardship determination, and
therefore be exempt from recovery. OPM Guidelines, § I-D-9, IAF, Tab 13 at 17;
Martin v. Office of Personnel Management , 49 M.S.P.R. 134, 138 (1991), aff’d per
curiam, 960 F.2d 156 (Fed. Cir. 1992). However, it may be appropriate to protect more
than $5,000.00 if the debtor’s expenses, as here, exceed her income and the debtor has
significant current liabilities not reflected in expenses. OPM Guidelines, § I-D-9, IAF,
Tab 13 at 17. 6
resolution of the overpayment, the administrative judge found that the appellant’s
request to waive recovery was contrary to the set-aside rule and general principles
of equity. ID at 22. The administrative judge declined to reduce OPM’s
repayment schedule, finding that the appellant did not need substantially all of
her income and current assets to meet her monthly expenses. ID at 22-23.
Nevertheless, to the extent that the administrative judge considered the
appellant’s assets in analyzing financial hardship, such assets are not relevant to
the appropriateness of the repayment schedule. Pierotti v. Office of Personnel
Management, 124 M.S.P.R. 103, ¶ 14 (2016) (explaining that the Board’s
hardship analysis, in considering a collection schedule established by OPM, is
income-based and not asset -based). When, as here, an annuitant is ineligible for a
waiver of an overpayment but her monthly expenses exceed her monthly income,
an adjustment of the recovery schedule is appropriate. Stone v. Office of
Personnel Management , 55 M.S.P.R. 657, 661 (1992). As noted above, the
record shows that the appellant’s monthly household expenses exceed her gross
monthly household income. ID at 21. Thus, the appellant needs all of her current
income to meet her current ordinary and necessary living expenses, and collection
of the overpayment at the repayment schedule of $502.60 per month would cause
her financial hardship. Pierotti, 124 M.S.P.R. 103, ¶ 12.
Accordingly, we modify the repayment schedule to $5.00 per month.7 Id.;
Knox v. Office of Personnel Management , 107 M.S.P.R. 353, ¶¶ 12-13 (2007)
6 The appellant explained below that the net proceeds from the withdrawal from her
TSP were $81,632.46 and that, as a result of the TSP withdrawal, the household owed
an additional $6,308.00 in Federal income tax and $5,798.00 in state income tax,
payments for which came from their emergency funds. IAF, Tab 19 at 6-7, 23-24.
7 OPM has advised the Board that it may seek recovery of any debt remaining upon your
death from your estate or other responsible party. A party responsible for any debt
remaining upon your death may include an heir (spouse, child or other) who is deriving
a benefit from your Federal benefits, an heir or other person acting as the representative
of your 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 distribute[r]s of your estate. See Pierotti, 124 M.S.P.R. 103, ¶ 13.7
(reducing OPM’s repayment schedule to $5.00 per month because the appellant’s
expenses exceeded her income); Dorrello v. Office of Personnel Management ,
91 M.S.P.R. 535, ¶ 10 (2002) (same); Matthews v. Office of Personnel
Management, 85 M.S.P.R. 531, ¶ 11 (2000) (same).
ORDER
We ORDER the Office of Personnel Management (OPM) to reduce the
appellant’s repayment schedule to a rate of $5.00 per month. OPM must
complete this action no later than 20 days after the date of this decision.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees8
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Rund_Karissa_DE-0845-19-0254-I-1_Final_Order.pdf | 2024-03-11 | KARISSA RUND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-19-0254-I-1, March 11, 2024 | DE-0845-19-0254-I-1 | NP |
2,149 | https://www.mspb.gov/decisions/nonprecedential/Omoregbe_Constance_E_DC-0841-19-0443-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE OMOREGBE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0841-19-0443-I-2
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Constance Omoregbe , Arlington, Virginia, pro se.
Anette H. Veldhuyzen , Esquire, Fort Belvoir, Virginia, for the agency.
Justin P. Sacks , Esquire, Falls Church, 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
found that the Board lacks jurisdiction over the denial of her application for a
Voluntary Separation Incentive Payment (VSIP) and affirmed the agency’s denial
of her application to retire pursuant to a Voluntary Early Retirement Authority
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(VERA). For the reasons discussed below, we GRANT the appellant’s petition
for review, AFFIRM the initial decision to the extent it found that the Board lacks
jurisdiction over the appellant’s application for a VSIP, and REVERSE the initial
decision to the extent it found that the agency properly denied the appellant’s
application for a VERA retirement.
BACKGROUND
The appellant was a Registered Nurse in the “0610” series with the
Department of Defense (DoD). Omoregbe v. Department of Defense , MSPB
Docket No. DC-0841-19-0443-I-2, Appeal File (I-2 AF), Tab 9 at 4, 16. In early
2018, the agency notified its employees of the opportunity to apply for retirement
under a VERA and a VSIP. Omoregbe v. Department of Defense , MSPB Docket
No. DC-0841-19-0443-I-1, Initial Appeal File (IAF), Tab 8 at 21-73. The agency
informed employees that, although applications were considered on a case-by-
case basis, nurses in the “0610” series were generally ineligible to receive a
VSIP. IAF, Tab 7 at 63; I-2 AF, Tab 9 at 5, 15. Under the agency’s policies, if it
were to approve an employee for a VSIP, that employee’s position must be
“abolished or restructured.” I -2 AF, Tab 9 at 5, 17. However, approval for a
VERA alone only required that applicants meet the age and service requirements.
IAF, Tab 7 at 58; I-2 AF, Tab 9 at 15.
The appellant timely applied for a joint VERA and VSIP. I-2 AF, Tab 9
at 4, 16. Her second -line supervisor denied her application based on the agency’s
need to retain nurses.2 Id. at 5, 17. The appellant separately submitted an
application for retirement under the Federal Employees’ Retirement System
(FERS). IAF, Tab 7 at 45, Tab 8 at 28. Due to an error in routing the appellant’s
VERA/VSIP application, she did not learn of the agency’s decision prior to the
2 The parties stipulated that this individual ultimately did not have the authority to deny
the appellant’s application. I-2 AF, Tab 9 at 5. Rather, she should have made a denial
recommendation and passed the application up to higher levels. Id. 2
effective date of her retirement, May 31, 2018.3 I-2 AF, Tab 9 at 5. On that day,
the agency informed the appellant of this error and of her ability to alter her date
of retirement before it went into effect. Id. The appellant nonetheless did not
alter her date of retirement and retired effective May 31, 2018, without a VERA/
VSIP approval. Id.
Following her retirement, the appellant contacted the agency’s human
resources department and indicated that she would not have retired had she
known that her VERA/VSIP was not approved. Id. at 6. The agency offered the
appellant an opportunity to return to duty full time and await a decision on her
VERA/VSIP application, but she declined to do so. IAF, Tab 7 at 37-38, 42-43;
I-2 AF, Tab 9 at 6. Because the appellant had retired by that point, her
VERA/VSIP application was never officially denied. I-2 AF, Tab 9 at 6.
The appellant filed a separate appeal alleging that her retirement was
involuntary. Omoregbe v. Department of Defense , MSPB Docket No.
DC-0752-19-0439-I-1, Initial Appeal File (0439 IAF), Tab 1 at 6. The
administrative judge therein dismissed the appeal for lack of jurisdiction.
Omoregbe v. Department of Defense , MSPB Docket No. DC -0752-19-0439-I-1,
Initial Decision (0439 ID) at 1 (May 29, 2019); 0439 IAF, Tab 11. The appellant
did not file a petition for review in that case, and the initial decision became final
on July 3, 2019. 0439 ID at 8.
During this time, the appellant also filed the instant appeal, challenging the
agency’s failure to properly process her VERA/VSIP application and the denial of
her application. IAF, Tab 1 at 6-7. The administrative judge issued an initial
decision finding that the appellant timely filed her appeal within 1 day of learning
of her appeal rights. I -2 AF, Tab 21, Initial Decision (I-2 ID) at 6-8. The
administrative judge additionally found that the Board lacked jurisdiction over
3 After correcting the delay in routing, the appellant’s application was routed to the
second-line recommender, who also recommended denying the application based on
mission needs. I -2 AF, Tab 9 at 5, 18. Her application was then routed to human
resources. Id. at 5.3
the VSIP portion of the appellant’s VERA/VSIP application. I-2 ID at 5. Finally,
the administrative judge found that the appellant failed to meet her burden of
proving her entitlement to retire under the VERA. I-2 ID at 8-9. Specifically,
she failed to show that her position was to be abolished or restructured following
her retirement, which the administrative judge found was a VERA eligibility
requirement. Id. The administrative judge was not persuaded by the appellant’s
argument that other nurses were granted VERA/VSIP in the past, observing that
the appellant failed to present any evidence that those nurses were assigned to
similar work units, had similar duties, or that their positions were not abolished
or restructured following their retirement. I-2 ID at 9.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to her petition for review, and the
appellant has replied to its response. PFR File, Tabs 3, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly held that the Board lacks jurisdiction over
VSIP applications.
The administrative judge here held that a VSIP denial, covered by 5 U.S.C.
chapter 35, is not within the Board’s jurisdiction. I -2 ID at 5. The appellant does
not specifically challenge this finding on review, and we agree with the
administrative judge.
A VSIP denial is not appealable to the Board under any law, rule, or
regulation. See Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed.
Cir. 1985) (finding the Board’s jurisdiction is limited to those matters over which
it has been given jurisdiction by law, rule, or regulation). The Board generally
has jurisdiction over determinations affecting the rights or interests of an
individual under FERS, the statutes for which are located in 5 U.S.C. chapter 84.
5 U.S.C. § 8461(e)(1). However, as cited by the agency, the authority for a VSIP
is covered in 5 U.S.C. chapter 35. 5 U.S.C. § 3523; IAF, Tab 7 at 72.
Furthermore, under agency policy, VSIPs are paid from accounts held by the4
agency or its activities. IAF, Tab 17 at 17. If VSIPs were retirement benefits
under 5 U.S.C. chapter 84, they would be paid from the Civil Service Retirement
and Disability Fund, which they are not. Id.; see 5 U.S.C. §§ 3523(b)(7)
(reflecting that VSIPs are paid from “appropriations or funds available
for . . . basic pay”), 8401(6), 8463 (reflecting that FERS benefits come from the
Civil Service Retirement and Disability Fund). Nor are VSIPs to be a basis for
payment or included in the calculation of any type of benefit. See 5 U.S.C.
§§ 3523(b)(5), 9902(f)(5)(B). Accordingly, we agree with the administrative
judge’s determination that the Board lacks jurisdiction over the appellant’s claim
that the agency improperly denied her a VSIP.
The administrative judge erroneously found that the appellant was not entitled to
a VERA.
The administrative judge below found that the agency properly denied the
appellant’s VERA request based on the agency’s need to retain nurse positions,
and that the appellant otherwise failed to demonstrate entitlement to a VERA.
I-2 ID at 8-9. The appellant on review argues that she sufficiently demonstrated
she met the VERA requirements as those requirements were presented by the
agency. PFR File, Tab 1 at 4. We agree with the appellant and find that the
agency’s need to retain nurse positions was only a condition of obtaining a VSIP.
The parties do not dispute the administrative judge’s determination that the
Board has jurisdiction over this matter. I -2 ID at 5. We discern no reason to
reach a different conclusion. A VERA denial is appealable to the Board as an
administrative action or order affecting an individual’s rights or interests under
FERS. See 5 U.S.C. § 8461(e)(1); Adams v. Department of Defense , 688 F.3d
1330, 1336 (Fed. Cir. 2012) (finding that adverse VERA benefits decisions are
covered under FERS). Although a VERA is generally covered by OPM, the
Secretary of Defense has a separate statutory authority to establish a VERA
program to be administered according to the regulations established by the
Secretary. Compare 5 C.F.R. § 842.213 (setting forth the procedures for5
establishing a VERA through OPM), with 5 U.S.C. § 9902(f)(1), (7) (providing
that the Secretary of Defense has the authority to offer separation incentives
pursuant to the agency’s regulations). The Board has held that when an agency
has the authority to make a VERA determination, and the agency has not issued a
final decision and does not intend to do so, the Board will deem the agency to
have denied the appellant’s request. See Dawson v. Department of Agriculture ,
121 M.S.P.R. 495, ¶ 17 (2014) (reaching this conclusion under the 5 U.S.C.
§ 8347(d)(1), which grants the Board jurisdiction over decision under the Civil
Service Retirement System (CSRS)); compare 5 U.S.C. § 8347(d)(1) (reflecting
the Board’s jurisdiction over CSRS retirement matters), with 5 U.S.C.
§ 8461(e)(1) (containing similar language regarding the Board’s jurisdiction over
FERS retirement matters).
The agency here has authority through the Secretary of Defense to make a
determination on the appellant’s retirement coverage, i.e., her VERA application.
5 U.S.C. § 9902(f)(1). Although the agency never officially denied her VERA
application, both her second-line supervisor and the second-line recommender
recommended disapproval based on the mission needs. I-2 AF, Tab 9 at 5-6,
17-18. Because the appellant has since retired, the agency has stated it does not
intend to process her application or make a final decision. I-2 AF, Tab 9 at 5-6,
Tab 19 at 13. Under these circumstances, we deem the agency to have denied the
appellant’s application to retire with a VERA benefit. Dawson, 121 M.S.P.R.
495, ¶ 17. Accordingly, the Board has jurisdiction over this denial. Id.
The VERA and the VSIP here were established via the Secretary of
Defense’s authority in 5 U.S.C. § 9902. I-2 AF, Tab 9 at 15, Tab 17 at 10-11, 22.
Under these provisions, the Secretary of Defense may place limitations and
conditions on receipt of both a VERA and a VSIP. 5 U.S.C. § 9902(f)(7). The
agency’s application here for a VERA and/or a VSIP places specific limitations
on the receipt of a VSIP, noting that individuals in positions deemed “mission
critical,” including nurses in the “0610” series, are typically not eligible. I-2 AF,6
Tab 9 at 15. However, the application places no such limitation on eligibility for
a VERA. Rather, the only limitations on a VERA are that the employee be in a
permanent appointment and, as applicable to the appellant, be over 50 years old,
have 20 years of service, and have been employed by the agency for a continuous
period of more than 30 days prior to February 5, 2018. IAF, Tab 7 at 45; I-2 AF,
Tab 9 at 15.
The appellant’s application here was for a “VERA with VSIP.” I-2 AF,
Tab 9 at 16. The application states, and the parties stipulated, that in order for a
VSIP to be approved, the occupied position “must be abolished or restructured.”
Id. at 5, 17. Thus, the parties stipulated that, in order to approve the appellant’s
joint VERA/VSIP application, the agency would have to give up a nurse position.
Id. at 5. However, this stipulation applies to the appellant’s joint application
only, and does not comment on the appellant’s eligibility for a VERA alone. As
the administrative judge observed, the agency does not dispute that the appellant
met the age and service requirements for a VERA under the statute and agency
regulations. I-2 ID at 8. Indeed, the appellant’s retirement Standard Form 50
states that she was over 50 years old, in a permanent position, and had over
20 years of service. IAF, Tab 7 at 45. There is nothing in the record to suggest
that she had not been employed by the agency for a continuous period of more
than 30 days prior to February 5, 2018. Accordingly, we find that the appellant
met the requisite age and service requirements for a VERA as set forth in the
agency’s VERA/VSIP application and DoD’s internal policies. I -2 AF, Tab 9
at 15, Tab 17 at 22-23.
Under 5 U.S.C. § 9902(f)(1), the Secretary of Defense “may establish a
program . . . for early retirement, . . . separation incentive pay . . . , or both.”
5 U.S.C. § 9902(f)(1). The agency’s application here lists the eligibility
requirements for a VERA and a VSIP separately. I-2 AF, Tab 9 at 15. Moreover,
the application includes separate check boxes for a VERA only, a VSIP with
voluntary retirement, a VSIP with voluntary resignation, and a VERA with a7
VSIP. Id. at 16. Nothing in the record or the applicable statutes and regulations
suggests that an application for both a VERA and a VSIP renders an individual
ineligible to receive one without the other. See I-2 AF, Tab 17 at 24 (stating in
the agency’s policy that employees who receive a VSIP “may or may not be the
same as those who retire under VERA”). Indeed, both recommended disapprovals
of the appellant’s application state the mission -critical nature of her position as
the reason for disapproval. I-2 AF, Tab 9 at 17-18. Given that mission -critical
positions are only listed as ineligible under the VSIP portion of the eligibility
requirements on the application, it is clear that the agency’s denial of the
appellant’s application was based on her ineligibility to receive a VSIP alone. Id.
at 15-18. Accordingly, the administrative judge erred in affirming the agency’s
denial of the VERA portion of the appellant’s application. See Torres v. Office of
Personnel Management , 124 F.3d 1287, 1291 (Fed. Cir. 1997) (reversing the
Board’s decision to sustain the denial of a VERA when the appellant met the
statutory requirements for the VERA but not an additional requirement that the
Office of Personnel Management improperly imposed).
To the extent that the parties dispute the effect of the VERA on the
appellant’s retirement benefits, we decline to make a finding here. I-2 AF,
Tab 18 at 8, Tab 19 at 9, 16. If the appellant believes that the agency has failed
to comply with this order to grant her a VERA retirement application, she may
file a petition to enforce the order consistent with the instructions below.
ORDER
We ORDER the agency to grant the appellant’s application for a VERA
retirement. The agency must complete this action no later than 20 days after the
date of this decision.
We also 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. We ORDER the appellant to provide all8
necessary information the agency requests to help it carry out the Board’s Order.
The appellant, if not notified, should have the agency about its progress. See
5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant it has fully carried
out the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
the agency did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant 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).
This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113(c).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 court12
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. 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 | Omoregbe_Constance_E_DC-0841-19-0443-I-2_Final_Order.pdf | 2024-03-08 | CONSTANCE OMOREGBE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0841-19-0443-I-2, March 8, 2024 | DC-0841-19-0443-I-2 | NP |
2,150 | https://www.mspb.gov/decisions/nonprecedential/Kelly_James_F_DC-315I-19-0273-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES FRANCIS KELLY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-315I-19-0273-I-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ames Francis Kelly , APO, APO/FPO Europe, pro se.
Victoria R. Gulasarian , Philadelphia, Pennsylvania, 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 for lack of Board jurisdiction his appeal contesting the agency reducing
his grade and pay after he failed to complete his supervisory probationary period.
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 appellant’s petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On October 1, 2017, the agency promoted the appellant from the
nonsupervisory position of Contract Specialist, General Schedule grade 12
(GS-12), step 6, to the position of Supervisory Integrated Acquisition/Supply
Team Specialist, GS-13, step 3. Initial Appeal File (IAF), Tab 9 at 31-32.2
The appellant’s promotion was subject to his satisfactory completion of a 1-year
supervisory probationary period. Id. at 32; see 5 U.S.C. § 3321(a)(2); 5 C.F.R.
§ 315.901. After the agency determined that the appellant failed to satisfactorily
complete his supervisory probationary period for reasons related to performance
and conduct, it reduced his grade and pay, effective September 30, 2018, and
placed him back in a Contract Specialist position at the GS-12, step 9, level.3
IAF, Tab 9 at 12, 14-17. All of these positions were in the competitive service.
Id. at 12, 31.
On February 7, 2019, the appellant filed this instant Board appeal
contesting his reduction in grade and pay. IAF, Tab 2. The administrative judge
provided the appellant with notice of his burden and the ways to establish
2 The promotion resulted in a pay increase from $73,177/yearly to $79,556/yearly. IAF,
Tab 9 at 31.
3 The action resulted in a pay decrease from $80,670/yearly to $80,560/yearly. IAF,
Tab 9 at 12.
3
jurisdiction over this claim. IAF, Tab 4 at 2-3. After providing both parties with
the opportunity to file argument and evidence on the issue of jurisdiction, the
administrative judge issued an initial decision dismissing the appeal. IAF,
Tab 10, Initial Decision (ID) at 1-4. The administrative judge determined that the
appellant failed to raise a nonfrivolous allegation of Board jurisdiction.4 Id. The
appellant’s petition for review followed, to which the agency filed a response,
and the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 4, 6-7.5
An individual must serve a probationary period before an initial
appointment to a supervisory position in the competitive service becomes final.6
5 U.S.C. § 3321(a)(2); 5 C.F.R. § 315.901. Pursuant to 5 U.S.C. § 3321(b), when
an individual has not satisfactorily completed his supervisory probationary
period, the agency shall return him to a position of no lower grade and pay than
the position from which he was promoted. See 5 C.F.R. § 315.907(a). The only
basis for Board jurisdiction to review an agency invoking its authority pursuant to
5 U.S.C. § 3321(b) is if the appellant sets forth a nonfrivolous allegation that the
4 The administrative judge never reached a conclusion on whether the appellant timely
filed his initial appeal due to the appeal’s clear jurisdictional defect. ID at 2 n.1. When
an appeal is clearly lacking in jurisdiction and the record also suggests a close
timeliness issue, the better practice is to address jurisdiction and dismiss the appeal on
that ground. Rosell v. Department of Defense , 100 M.S.P.R. 594, ¶ 5 (2005), aff’d,
191 F. App’x 954 (Fed. Cir. 2006).
5 The Board granted the appellant an extension until June 13, 2019, to file a reply to the
agency’s response to his petition for review. PFR File, Tab 5. The appellant filed his
reply with the regional office on June 13, 2019, and we have considered it on review.
PFR File, Tab 7 at 1; see Coles v. U.S. Postal Service , 105 M.S.P.R. 516, ¶ 12 (2007)
(explaining that a petition for review mistakenly filed with the regional office within
the deadline for filing a petition for review is deemed a timely filing with the Board).
On June 21, 2019, the appellant filed another pleading with the Board related to his
reply and submitted evidence to support his claim that the untimely filing was due to a
medical condition. PFR File, Tab 6 at 2-5. Because the appellant showed good cause
for his untimely filing, we also considered the June 21, 2019 pleading. See Lacy v.
Department of the Navy , 78 M.S.P.R. 434, 437 (1998) (holding that the Board will find
good cause to waive its filing time limits where a party demonstrates that he suffered
from a medical condition that impacted his ability to file on time).
6 The appellant did not contest that he was subject to a supervisory probationary period.
IAF, Tabs 2-3, 6; PFR File, Tabs 1, 3, 6-7.
4
agency took such a reduction action based on his marital status or partisan
politics discrimination. De Cleene v. Department of Education , 71 M.S.P.R. 651,
656 (1996); 5 C.F.R. § 315.908; see 5 U.S.C § 7512(C). A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). An allegation will generally be considered nonfrivolous
when, under oath or the penalty of perjury, an individual makes an allegation that
is more than conclusory, is plausible on its face, and is material to the legal issues
in the appeal. Id.
As an initial matter, when the agency reduced the appellant’s grade and pay
for not satisfactorily completing his supervisory probationary period, it placed
him in a position at the same grade, with no lower pay, from which he was
promoted, in accordance with 5 U.S.C. § 3321(b).7 IAF, Tab 9 at 12, 31-32. The
appellant has not alleged that the agency reduced his grade and pay due to his
marital status or for political partisan reasons. IAF, Tabs 2-3, Tab 4 at 2-3,
Tab 6; PFR File, Tabs 1, 3, 6-7. Thus, w e agree with the administrative judge’s
conclusion in the initial decision that the appellant failed to set forth a
nonfrivolous allegation of Board jurisdiction . ID at 1-4; see De Cleene ,
71 M.S.P.R. at 656 (dismissing for lack of jurisdiction an appeal of an agency
returning the appellant to his prior position before completion of his supervisory
probationary period because he failed to nonfrivolously allege that such action
was taken due to discrimination based on marital status or partisan politics). The
appellant’s remaining arguments raised on review, many of which concern the
merits of his reduction in grade and pay, provide no basis to overturn the initial
decision.8 Burton v. Department of the Air Force , 118 M.S.P.R. 210, ¶ 16 (2012).
7 In fact, the appellant received a higher pay than he was receiving before he was
promoted. IAF, Tab 9 at 12, 31-32.
8 To the extent that the appellant contests the agency’s decision to suspend and
terminate his warrant authority and take away his duties as a supervisor, such claims are
not adverse actions directly appealable to the Board. 5 U.S.C. §§ 7512, 7701(a); PFR
File, Tab 1 at 2.
5
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | Kelly_James_F_DC-315I-19-0273-I-1_Final_Order.pdf | 2024-03-08 | JAMES FRANCIS KELLY v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-315I-19-0273-I-1, March 8, 2024 | DC-315I-19-0273-I-1 | NP |
2,151 | https://www.mspb.gov/decisions/nonprecedential/Donovan_Leslie_A_DC-1221-20-0267-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LESLIE ANN DONOVAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-20-0267-W-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Lynn Binte Lolotai , Washington, D.C., for the appellant.
Samantha K. Early and Ana Olman , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal. For the reasons set forth below, we DISMISS the appeal as settled.
¶2After the filing of the petition for review, the appellant’s attorney submitted
a copy of a settlement agreement, signed by the appellant on September 18, 2023,
and a senior agency official on September 22, 2023. Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 5 at 2-7. Shortly thereafter, the appellant’s attorney submitted an
amendment to the previous agreement signed by the appellant on November 28,
2023, and the same senior agency official on December 8, 2023. PFR File, Tab 6
at 4. The settlement agreement provides, among other things, for the withdrawal
of the appellant’s Board appeal in exchange for the promises made by the
agency.2 PFR File, Tab 5 at 2-4.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017).
¶4Here, we find that the parties have entered into a settlement agreement and
that they understand its terms. We further find that the parties do not intend to
enter the settlement agreement into the record for enforcement by the Board, as
the agreement specifies an alternative resolution process in the event of an
alleged breach, concluding with a filing with the Equal Employment Opportunity
Commission. PFR File, Tab 5 at 6-7. As the parties do not intend for the Board
to enforce the terms of the settlement agreement, we need not address the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances.
2 The amendment to the settlement agreement modifies the promises made by the
agency but does not alter the appellant’s withdrawal of her Board appeal. PFR File,
Tab 6 at 4.2
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Donovan_Leslie_A_DC-1221-20-0267-W-1_Final_Order.pdf | 2024-03-08 | LESLIE ANN DONOVAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-20-0267-W-1, March 8, 2024 | DC-1221-20-0267-W-1 | NP |
2,152 | https://www.mspb.gov/decisions/nonprecedential/Duran_Theresa_M_DE-0752-16-0116-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA M. DURAN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0752-16-0116-I-2
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
tephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Jennifer A. Weger , 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
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; the
administrative judge’s rulings during either the course of the appeal or the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
concerning the agency’s proof of its charge and to clarify the analysis of the
appellant’s affirmative defenses, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as an Industry Operations
Investigator with the agency’s Bureau of Alcohol, Tobacco, Firearms and
Explosives. MSPB Docket No. DE-0752-16-0116-I-1, Initial Appeal File (IAF),
Tab 1 at 1.2 As described at length in the initial decision, beginning in or around
November 2011, the appellant requested various reasonable accommodations for
her medical conditions, which caused her to experience sensitivity to light, severe
headaches, and neck pain. MSPB Docket No. DE-0752-16-0116-I-2, Appeal File
(I-2 AF), Tab 83 at 6-15, Initial Decision (ID). On February 9, 2015, the
appellant submitted a Certification of Health Care Provider for Employee’s
Serious Health Condition (Family and Medical Leave Act) (FMLA) form, in
which her doctor indicated that, due to her conditions, the appellant was unable to
“work on a computer” or “attend meetings in brightly lighted rooms.” I-2 AF,
Tab 56 at 246, 249. In a separate section on the form, the appellant’s doctor
indicated that the appellant’s conditions caused episodic flare-ups, which
prevented her from performing her job duties approximately 2 times a month for
24-48 hours per episode. Id. at 247.
2 The appeal was initially dismissed without prejudice to allow the appellant to retain
new counsel. IAF, Tab 31.
3
After receiving the FMLA form, the agency approved the appellant’s
request for FMLA leave, but later sought further clarification of the appellant’s
medical conditions, including an explanation of how such conditions affected her
ability to work on a computer and any job accommodations that the agency could
provide to allow her to work on a computer. I-2 AF, Tab 46 at 118, Tab 56
at 251-59. The appellant declined to provide any further information or sign a
waiver to allow the agency to communicate directly with her doctor. I-2 AF,
Tab 56 at 261. Consequently, on July 15, 2015, the agency proposed the
appellant’s removal for medical inability to perform the essential functions of her
position, which it contended included working on a computer. IAF, Tab 13
at 97-105. By letter dated November 6, 2015, the agency sustained the proposal,
and removed the appellant. Id. at 26-30. Following her removal, on July 21,
2016, the appellant filed an application for disability retirement, which was
granted on July 13, 2017. I-2 AF, Tab 46 at 120-134, Tab 76 at 9-12.
The appellant filed a Board appeal, disputing the agency’s removal charge
and raising affirmative defenses of disability discrimination (failure to
accommodate), retaliation for prior equal employment opportunity (EEO)
activity, and whistleblower reprisal. IAF, Tab 1 at 7; I-2 AF, Tab 48 at 2. After
holding the appellant’s requested hearing, the administrative judge issued an
initial decision sustaining the removal and finding that the appellant failed to
prove her affirmative defenses. ID at 22-30.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 7. The agency has filed a response in opposition, and the appellant has
filed a reply. PFR File, Tabs 9-10.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge of
medical inability to perform.
When, as in this case, the appellant does not occupy a position with
medical standards or physical requirements or subject to medical evaluation
4
programs, in order to establish a charge of physical inability to perform, the
agency must prove a nexus between the employee’s medical condition and
observed deficiencies in her performance or conduct, or a high probability, given
the nature of the work involved, that her condition may result in injury to herself
or others. Marshall-Carter v. Department of Veterans Affairs , 94 M.S.P.R. 518, ¶
10 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005).
Here, the administrative judge credited the appellant’s statements in her
July 2016 application for disability retirement that her medical conditions
rendered her unable to work over the appellant’s testimony to the contrary. ID
at 20-21. In her retirement application, the appellant stated that she was unable to
perform her job duties due to “constant and chronic headaches, photosensitivity
and loss of cognitive capacity.” I-2 AF, Tab 46 at 133-34. She further indicated
that her medical provider had advised her on numerous occasions that she would
not be able to continue working due to “functional limitations, chronic pain, and
overwhelming and debilitating fatigue,” which prevented her from performing her
job duties, including working on a computer. Id. at 133.
The administrative judge found that the application was “extremely
consistent with the totality of the evidence in the record” and explained why the
appellant was unwilling to provide clarifying medical documentation—her doctor
was already advising her that she would be unable to continue working. ID at 21.
In contrast, she found the appellant’s testimony—that her conditions were only
debilitating during a flare-up, she could have worked with a reasonable
accommodation, and she only signed the disability retirement application based
on advice of counsel—to be “awkward, strained, and wholly unbelievable.” ID
at 19-20. Moreover, she found such testimony was “completely self-serving to
[the appellant’s] legal claims in this appeal” and noted that, despite her
testimony, the appellant had not corrected her retirement application to reflect her
contention that she could work with accommodations, but rather continued to
accept a disability annuity. ID at 20-21.
5
On review, the appellant argues that the administrative judge erred in not
crediting her testimony that she could have worked with a reasonable
accommodation. PFR File, Tab 7 at 14-17. She also argues that the agency failed
to show that she was incapacitated from her job duties because the deciding
official erroneously interpreted her doctor’s statement on her FMLA form as
indicating that she was unable to work on a computer at all when, in fact, her
inability to work on a computer was limited to when flare-ups occurred
approximately 1 to 2 times a month. Id. at 10-11. Such arguments are
unavailing. The record reflects that, in determining that the appellant was unable
to work, the administrative judge considered the relevant documentary and
testimonial evidence and applied the Board’s decisions in Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 83-87 (1981) (explaining that the
assessment of the probative value of hearsay evidence necessarily depends on the
circumstances of each case), and Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987) (holding that to resolve credibility issues, an administrative
judge must identify the factual questions in dispute, summarize the evidence on
each disputed question, state which version he believes, and explain in detail why
he found the chosen version more credible). Thus, we discern no reason to
reweigh the evidence or substitute our assessment of the record evidence for that
of the administrative judge. See, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant also argues that the agency failed to prove its charge because
it failed to engage in the interactive process to ascertain what her physical
limitations were and consider whether there were any reasonable accommodations
it could provide for her. PFR File, Tab 7 at 11-12. We are not persuaded by this
argument. As the administrative judge noted, the appellant refused to cooperate
6
with the agency’s attempts to determine the extent of her physical limitations
after she submitted the FMLA form and was unwilling to provide clarifying
information in response to the agency’s request. ID at 14-15, 17, 21; see, e.g.,
Brown v. Department of the Interior , 121 M.S.P.R. 205, ¶ 19 (2014) (stating that
generally when an employee cannot perform the essential functions of her job, the
Board must examine whether this is true with or without a reasonable
accommodation, but noting that an exception to this general rule exists when an
appellant refuses to cooperate with the agency’s efforts to provide an
accommodation), overruled on other grounds by Haas Department of Homeland
Security, 2022 MSPB 36. Further, as the administrative judge noted, on her
disability retirement form, the appellant stated that “[n]o accommodations are
possible because of the nature, extent and severity of the medical conditions of
the Applicant.” ID at 18.
Finally, the appellant argues that the agency failed to prove a nexus
between her medical condition and any observed deficiencies in her performance
or conduct. PFR File, Tab 7 at 12-14. We agree. In finding that the agency
proved a nexus, the administrative judge merely noted that “deficiencies in the
appellant’s performance were increasingly identified in 2015 and remained
unresolved by the time of her removal in November.” ID at 22-23. Such a
conclusory finding, however, lacks any analysis regarding how the appellant’s
performance deficiencies were related to her medical condition. Based on our
review of the record, the agency has not established a connection between the
appellant’s medical conditions and her performance deficiencies. For example,
one of the appellant’s performance deficiencies cited was that she was
excessively using email to communicate when verbal communication would have
been more efficient. ID at 15, 17. Such a deficiency, however, clearly has no
connection to her medical conditions, which prevented her from using a
computer.
7
Nonetheless, we modify the initial decision to find that the agency proved
its charge by showing there was a high probability that, given the nature of the
appellant’s work, which required computer use, the appellant’s condition may
have resulted in injury to herself. By the appellant’s own admission, working on
a computer exacerbated her medical conditions. On her disability retirement
application she stated, “[m]y job required me to perform extensive computer
work, reading under fluorescent lighting, which [I] was not able to do because of
the constant and chronic headaches, photosensitivity and loss of cognitive
capacity to have the mental acuity in order to conduct my inspections.” I-2 AF,
Tab 46 at 133. She further stated:
I also conducted field inspections at commercial premises, [and]
sporting goods business premises located in personal residences, and
thus would naturally include working indoors under ambient and
natural light, which [I] was also not able to do because of the
headaches, photosensitivity and loss of cognitive capacity to have the
mental acuity in order to conduct such inspections.
Id. at 133-34. Similarly, the appellant’s FMLA form indicated that she was
unable to work on a computer and she has not offered any evidence, beyond her
testimony, which the administrative judge found was not credible, establishing
that she was able to work on a computer. Therefore, the agency has shown that
the appellant’s medical condition rendered her unable to safely and efficiently
perform all the core duties of her position, and we sustain the charge.3
3 Although the appellant’s disability retirement application was not before the agency at
the time it removed the appellant, the Board reviews de novo the merits of an agency’s
decision to take an adverse action against an employee and will consider all relevant
evidence presented by the parties, whether offered at the hearing or transmitted as part
of the agency’s record. See, e.g., Sanders v. Department of Homeland Security ,
122 M.S.P.R. 144, ¶¶ 9-10 (considering the appellant’s post-removal evidence of his
psychiatric condition in an appeal of his removal for inability to perform the essential
duties of his position , aff’d, 625 F. App’x 549 (Fed. Cir. 2015), and overruled on other
grounds by Haas v. Department of Homeland Security , 2022 MSPB 36.
8
The administrative judge properly found that the appellant failed to prove her
affirmative defenses.
After the initial decision was issued, the Board clarified its analytical
framework for EEO retaliation claims and we apply that framework here. To
prevail in a claim of retaliation for engaging in activity protected by the
Rehabilitation Act, including filing EEO complaints based on disability
discrimination and requests for reasonable accommodation, the appellant must
show that retaliation was a “but-for” cause of the agency’s action. Desjardin v.
U.S. Postal Service , 2023 MSPB 6, ¶ 32; Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 44-47. “But-for” causation is a higher burden than
“motivating factor” causation. Desjardin, 2023 MSPB 6, ¶ 31.
The administrative judge, applying a now-obsolete burden-shifting legal
standard, found that the appellant failed to show that retaliation was a motivating
factor in the agency’s decision to remove her. ID at 27. On review, the appellant
contends that the administrative judge erred in finding that she failed to prove her
affirmative defense of retaliation for prior EEO activity because the
administrative judge only referenced four of the appellant’s eight EEO complaints
and four of her eight requests for reasonable accommodation, and did not
consider her claim of reprisal for requesting FMLA leave. PFR File, Tab 7 at 18,
20-21, 23-24. She further argues that the administrative judge failed to consider
that the deciding official was influenced by the proposing official’s retaliatory
motive under a cat’s paw theory of liability. Id. at 19-20. We discern no error in
the administrative judge’s analysis. Moreover, the appellant’s failure to meet the
lesser motivating factor standard necessarily means the she failed to meet the
more stringent but-for standard applicable to claims of retaliation based on
protected activity under the Rehabilitation Act.4
4 To the extent that the appellant claims she engaged in EEO activity based on Title VII
or the Age Discrimination in Employment Act, such claims are subject to the motivating
factor standard, Desjardin, 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 30, which
the administrative judge correctly found she failed to meet, ID at 27.
9
Regarding her affirmative defense of failure to accommodate, the
administrative judge found that, on her application for disability retirement, the
appellant admitted that there was no reasonable accommodation that would allow
her to perform her job duties. ID at 29. The Board has also clarified its
precedent on reasonable accommodation, reaffirming that a threshold question in
a reasonable accommodation claim is whether the individual making the claim is
a qualified disabled individual. Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28. A qualified disabled individual is one who can perform the
essential functions of her position with or without reasonable accommodation.
Id.
On review, the appellant argues that the agency rescinded a valid
accommodation and forced her to provide additional documentation under the
threat of removal. PFR File, Tab 7 at 22. However, we discern no error in the
agency’s request for additional information in light of the limitations identified
on her FMLA form. The administrative judge properly found that the appellant’s
medical condition is such that she cannot perform the essential functions of her
position and that no accommodation is possible. ID at 29. As such, the appellant
is not a qualified individual with a disability and she is not entitled to relief on
her reasonable accommodation claim.
Finally, regarding the appellant’s claim of whistleblower reprisal, the
administrative judge found that the appellant’s vague claims failed to amount to
nonfrivolous allegations that she made a protected disclosure. ID at 23-25. On
review, the appellant does not challenge the administrative judge’s specific
findings but rather appears to set forth new alleged disclosures. PFR File, Tab 7
at 26. For example, the appellant summarily contends that she made protected
disclosures to the Equal Employment Opportunity Commission regarding
violations of law, rules, and regulations, including the agency’s failure to follow
the FMLA. Id. She also cites to various reports, which she contends establish
that her coworkers were not following policies. Id. Such bare allegations,
10
however, fail to amount to nonfrivolous allegations or establish any error in the
administrative judge’s analysis.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Duran_Theresa_M_DE-0752-16-0116-I-2_Final_Order.pdf | 2024-03-08 | THERESA M. DURAN v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-16-0116-I-2, March 8, 2024 | DE-0752-16-0116-I-2 | NP |
2,153 | https://www.mspb.gov/decisions/nonprecedential/Wynn_Kenneth_O_AT-0752-19-0203-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH O. WYNN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-19-0203-C-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
melia Grubbs , Esquire, Atlanta, Georgia, for the appellant.
Goodnite Hay , Esquire, Fort Rucker, Alabama, 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 petition for enforcement of a settlement agreement that resolved
his chapter 75 removal appeal. On petition for review, the appellant argues that
(1) the agency’s delay in complying with the terms of the parties’ agreement
caused him to incur tax penalties and (2) the administrative judge failed to
consider his request for attorney fees. Petition for Review (PFR) File, Tab 1
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 5-7. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board has jurisdiction to consider an appellant’s claim of agency
noncompliance with a Board order. Kerr v. National Endowment for the Arts ,
726 F.2d 730, 733 (Fed. Cir. 1984). Here, however, the appellant does not
challenge the administrative judge’s conclusion that the agency ultimately
complied with the terms of the parties’ agreement; rather, he contends that the
agency’s delay in complying caused him to incur tax penalties. PFR File, Tab 1
at 6-7; see 5 C.F.R. § 1201.182(b). Thus, his contention does not provide a basis
to disturb the administrative judge’s denial of his petition for enforcement.
The appellant asserts that the administrative judge failed to consider
his request for attorney fees. PFR File, Tab 1 at 5-7. A request for attorney fees,
however, must be filed in accordance with 5 C.F.R. § 1201.203. Such a request
must, among other things, be made after a final decision of the Board but no later
than 60 days after the date on which a decision becomes final. 5 C.F.R.2
§ 1201.203(d). The appellant’s request was therefore premature .2 See Galatis v.
U.S. Postal Service , 109 M.S.P.R. 651, ¶ 14 (2008) (finding that the
administrative judge properly dismissed the appellant’s request for attorney fees
incurred during a compliance proceeding because a final decision on the matter
had not yet been issued).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1).
By statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent
a statement of how courts will rule regarding which cases fall within
their jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
2 To the extent the appellant requests that the Board order the agency to recompense
him for “$3,500 to $4,500” in attorney fees, his request is both deficient and premature.
PFR File, Tab 1 at 5, 7; see 5 C.F.R. § 1201.203.
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 | Wynn_Kenneth_O_AT-0752-19-0203-C-1_Final_Order.pdf | 2024-03-08 | KENNETH O. WYNN v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-19-0203-C-1, March 8, 2024 | AT-0752-19-0203-C-1 | NP |
2,154 | https://www.mspb.gov/decisions/nonprecedential/McCauley_Jacob_H_DC-3443-19-0478-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACOB HERRICK MCCAULEY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DC-3443-19-0478-I-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
acob Herrick McCauley , Mechanicsville, Virginia, pro se.
Jessica L. Kersey , Esquire, Knoxville, Tennessee, 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 removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the petition for review and REVERSE the initial decision.
The appellant’s removal is NOT SUSTAINED.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The material facts of this appeal are undisputed. On January 8, 2017, the
agency appointed the appellant, a non-preference eligible, to an excepted service
GS-05 Student Trainee (Maintenance Worker) position under the Pathways
Student Internship Program, pursuant to 5 C.F.R. § 213.3402(a).2 Initial Appeal
File (IAF), Tab 5 at 11-12. This was an indefinite appointment, intended to
continue through the completion of the appellant’s education and work
requirements, and the agency had the option to noncompetitively convert the
appellant to a term or permanent competitive service position within 120 days
after he successfully completed all program requirements. Id. at 12; see 5 C.F.R.
§ 362.204(b) (setting forth the circumstances under which an agency may
noncompetitively convert an Intern to a term or permanent appointment in the
competitive service).
Effective April 5, 2019, the agency summarily separated the appellant from
service. IAF, Tab 1 at 7-8. The agency informed the appellant that it was
terminating his appointment due to a shift in programmatic priorities and because
he had not met the standards set forth in the Pathways agreement in the
performance of his work. Id. On April 30, 2019, the appellant filed a Board
appeal and requested a hearing. Id. at 1-3. He argued that the agency did not
allow him to respond to the reasons for his termination and that those reasons for
termination could not be substantiated. Id. at 5.
The administrative judge issued an order to show cause, informing the
appellant that the Board may not have jurisdiction over his appeal because he did
not appear to be an “employee” with Board appeal rights under 5 U.S.C.
2 The Pathways Program was established in 2010 by Executive Order 13562 to promote
employment opportunities for students and recent graduates in the Federal workplace
(Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010)). The Pathways Program
is the successor to the Federal Career Intern Program (FCIP) and was designed to
address the problems with the FCIP. See Exec. Order No. 13,562, 75 Fed. Reg. 82,585;
Dean v. Department of Labor , 122 M.S.P.R. 276, ¶ 10, aff’d in part, rev’d in part ,
808 F.3d 497 (Fed. Cir. 2015).
3
chapter 75. IAF, Tab 4. The appellant did not file a response to the order. The
agency moved to dismiss the appeal for lack of jurisdiction, arguing that
the appellant did not satisfy the definition of “employee” under 5 U.S.C.
§ 7511(a)(1). IAF, Tab 5.
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial
Decision (ID) at 4. The administrative judge found that, because the appellant’s
appointment under the Pathways program was a temporary appointment, he was
not an “employee” with Board appeal rights under 5 U.S.C. chapter 75. ID at 4.
Alternatively, the administrative judge found that, even if the appellant were an
“employee” for purposes of Board jurisdiction, he had not suffered an appealable
adverse action when the agency failed to convert him to a term or permanent
competitive service position at the end of his trial period. ID at 3-4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
ANALYSIS
On review, the appellant argues that he qualifies as an “employee” with
Board appeal rights under 5 U.S.C. § 7511(a)(1)(C), which defines as an
employee an individual in the excepted service, other than a preference eligible,
who has completed 2 years of current continuous service in the same or similar
positions in an Executive agency under other than a temporary appointment
limited to 2 years or less. PFR File, Tab 1 at 4. He argues that, based on the fact
that his appointment length was indefinite, and thus not one “limited to 2 years or
less,” and the fact that he continuously worked in his position for over 2 years, he
qualifies as an employee under this provision. Id.; IAF, Tab 5 at 12. The
appellant further argues that the administrative judge mischaracterized the nature
of his appeal, clarifying that he was not challenging the agency’s failure to
4
convert him to a permanent position, but was instead challenging the agency’s
failure to offer him predecisional due process. PFR File, Tab 1 at 4.
The appellant was an employee with chapter 75 appeal rights at the time of his
termination.
An individual who is involuntarily separated for cause is entitled to appeal
to the Board under 5 U.S.C. §§ 7512(1) and 7513(d) if he meets the definition of
“employee” under 5 U.S.C. § 7511(a)(1). Yeressian v. Department of the Army ,
112 M.S.P.R. 21, ¶ 8 (2009). As a non-preference eligible in the excepted
service, to be entitled to Board appeal rights the appellant had to satisfy the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(C), which is defined as an
individual:
(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.
The appellant need only satisfy the requirements under (C)(i) or (C)(ii) in order to
be an employee with adverse action appeal rights. Van Wersch v. Department of
Health and Human Services , 197 F.3d 1144, 1151 (Fed. Cir. 1999); Yeressian,
112 M.S.P.R. 21, ¶ 8.
In Van Wersch, the U.S. Court of Appeals for the Federal Circuit held that,
although the petitioner was serving a probationary period under a temporary
excepted service appointment pending conversion to the competitive service and
did not satisfy the requirements under subsection (C)(i), she satisfied the
requirements under subsection (C)(ii) because she had completed 2 years and
8 months of current continuous service in the same position in an Executive
agency. Therefore, she was an “employee” within the meaning of 5 U.S.C.
§ 7511(a)1)(C). Van Wersch, 197 F.3d at 1146, 1148. Similarly, in Beck v.
General Services Administration , 86 M.S.P.R. 489, ¶¶ 2, 11 (2000), the Board
found that an individual who was appointed to a Student Trainee position
5
pursuant to 5 C.F.R. § 213.3202, whose appointment was intended to continue
through completion of her education and study-related work requirements, and
who served more than 2 years of current continuous service in the same position,
met the statutory definition of an “employee” under subsection (C)(ii).
In this case, although the appellant was serving in a trial period under an
initial appointment pending conversion to the competitive service, he had served
more than 2 years in that position at the time of his separation. IAF, Tab 1 at 7,
Tab 5 at 11-12; see 5 C.F.R. §§ 213.3402(b)(1), 362.204(a). Therefore, although
the appellant did not meet the definition of “employee” under 5 U.S.C. § 7511(a)
(1)(C)(i), he met the alternative definition of “employee” under 5 U.S.C.
§ 7511(a)(1)(C)(ii). See Van Wersch , 179 F.3d at 1148; Beck, 86 M.S.P.R. 489,
¶ 11.
This finding is consistent with the Office of Personnel Management’s
(OPM) Pathways Programs Handbook, which provides guidance for agencies on
how to implement the Pathways Program and sets out specific requirements to
which agencies must adhere in administering the program.3 See Pathways
Programs Handbook , U.S. Office of Personnel Management (Aug. 2016),
available at https://www.pmf.gov/media/5544619/opm-pathways-programs-
handbook-08-2016.pdf. In the section of the Handbook addressing terminations,
OPM notes that a termination based on the expiration of an internship
appointment is not effected under 5 U.S.C. chapter 75, and the Intern does not
have Board appeal rights. Pathways Programs Handbook at 25. However, OPM
also notes that if an Intern is terminated at any time prior to completion of the
designated appointment, “agencies must determine whether the action should be
3 While OPM Guides and Handbooks lack the force of law, the Board has held that they
are entitled to deference in proportion to their power to persuade. See Warren v.
Department of Transportation , 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM
retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of
Personnel Management , 110 M.S.P.R. 667, ¶ 9 n.3 (2009) (granting “some deference”
to an OPM retirement handbook). Here, we find that OPM’s handbook is persuasive for
identifying the requirements agencies must meet in implementing the Pathways
Program.
6
processed in accordance with [] 5 U.S.C. [c]hapter 75, and the Intern . . . may be
given appeal rights.” Id. at 26. Continuing, the Handbook states that chapter 75
appeal rights “will be based on whether the Intern [] meets the definition of
‘employee’ as set forth in [] 5 U.S.C. [§] 7511.” The Handbook makes clear that
if an Intern meets the definition of “employee” under 5 U.S.C. chapter 75, then he
“may have the right to appeal the balance of the remainder of the appointment,”
and “adverse action procedures outlined in [5 C.F.R. § 752] will apply to the
action.” Id. Absent a specific exclusion of appeal rights or an exemption from
section 7511’s definition of an “employee,” a civil service position is not exempt
from the protections found in chapter 75, including the right to appeal an adverse
action to the Board. See Lal v. Merit Systems Protection Board , 821 F.3d 1376,
1379-80 (2016); Malloy v. Department of State , 2022 MSPB 14, ¶¶ 11-12.
The appellant’s separation from service constituted a removal within the meaning
of 5 U.S.C. § 7512(1).
As noted above, the administrative judge found that, even if the appellant
were an employee with chapter 75 appeal rights, his separation from service did
not constitute an adverse action because failure to convert an individual at the
conclusion of a term appointment does not constitute a removal under 5 U.S.C.
§ 7512(1). ID at 3-4. It is well established that termination of an appointment on
the expiration date specified as a basic condition of employment at the time the
appointment was made does not constitute an adverse action appealable under
chapter 75. Berger v. Department of Commerce , 3 M.S.P.R. 198, 199-200 (1980);
5 C.F.R. § 752.401(b)(11). However, there is no evidence that the appellant in
this case was serving in a temporary or term appointment with a defined end date.
Instead, he was serving under an indefinite appointment, i.e., a nonpermanent
appointment without a definite time limitation. IAF, Tab 1 at 12, 14; see 5 C.F.R.
§ 362.203(d)(3) (providing for two types of Pathways Intern appointments–
temporary appointments not to exceed one year, and indefinite appointments that
7
are “not required to have an end date” ).4 Because the appellant’s appointment
did not have an end date specified, we find that his involuntary separation from
service did not fall within the exception of 5 C.F.R. § 752.401(b)(11).
Furthermore, the documentation surrounding the agency’s action shows
unequivocally that the appellant’s separation was for cause rather than pursuant to
the expiration of his appointment. In its notice of termination, the agency
explained to the appellant the reasons for his separation from service as follows:
“A change in programmatic priorities has shifted the need for your position. In
addition, you have not met the standards set forth in the Pathways agreement in
the performance of your work.” IAF, Tab 1 at 8. Similarly, the Standard
Form 50 (SF-50) documenting the appellant’s separation states that the reason for
the action was a “change in programmatic priorities.” Id. at 7. The agency has
endorsed this explanation on appeal. IAF, Tab 5 at 5. Nowhere has the agency
even suggested that the appellant might have been separated pursuant to the
expiration of his appointment.
We further observe that the SF-50 cites 5 C.F.R. § 362.105(h) as the
authority for the appellant’s termination. IAF, Tab 1 at 7. That paragraph
4 Even if an Intern appointment does not have an end date, OPM’s regulations require
the employing agency “to specify an end date of the appointment in the Participant
Agreement with the Intern.” 5 C.F.R. § 362.203(d)(3)(i). Neither party in this case
submitted the appellant’s Participant Agreement for the record, so we are unable to
determine what, if any, end date was specified in that agreement. However, we find
that the provisions of any such agreement would be immaterial to the analysis. Nothing
in the Participant Agreement could serve to alter the nature of the appellant’s
appointment or change the fact that the appointment itself had no definite time
limitation. “Federal employment is not governed by contract principles. In the federal
personnel system, employees are appointed to positions, with their terms of
employment being specified primarily in position descriptions. Appointment, not
contract law, is the central concept.” 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). “Absent
specific legislation, Federal employees derive the benefits and emoluments of their
positions from appointment rather than from a contractual or quasi-contractual
relationship with the government, even where compacts have been made between
employees and their agencies.” Walton v. Department of the Navy , 42 M.S.P.R. 244,
250 n.14 (1989).
8
provides as follows: “An agency may terminate a Pathways Participant for
reasons including misconduct, poor performance, or suitability under the
provisions of this chapter.” 5 C.F.R. § 362.105(h). Had the appellant been
terminated pursuant to the expiration of his appointment, the applicable
regulatory authority would have been 5 C.F.R. § 362.205(b).
For these reasons, we find no dispute of material fact about the nature of
the appellant’s separation. The record shows that, like the appellant in
McCrary v. Department of the Army , 103 M.S.P.R. 266, ¶¶ 2, 9, 15 (2006), the
appellant in this case was separated for cause during his internship, and as an
employee within the meaning of 5 U.S.C. § 7511(a)(1)(C)(ii), was subjected to an
appealable adverse action, i.e., a removal under 5 U.S.C. § 7512(1). This appeal
is unlike Scull v. Department of Homeland Security , 113 M.S.P.R. 287, ¶¶ 3, 10
(2010) in which the appellant, although an employee with adverse action appeal
rights, was separated pursuant to the expiration of his appointment and therefore
not subjected to an adverse action appealable under chapter 75.
The agency removed the appellant without due process.
The essential requirements of procedural due process are prior notice of the
reasons for the adverse action and an opportunity to respond. Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985). In this case, the record
shows that the appellant did not receive any prior notice whatsoever of the
reasons for his separation, and consequently had no opportunity to respond. IAF,
Tab 1 at 5, 7-8, Tab 5 at 5. Because the agency’s procedures for effecting the
appellant’s removal did not comport with his constitutional right to minimum due
process, the agency’s action is not sustained. See Sandoval v. Department of
Agriculture, 115 M.S.P.R. 71, ¶ 15 (2010).
ORDER
We ORDER the agency to CANCEL the appellant’s removal and
RESTORE him to his position effective April 5, 2019. See Kerr v. National
9
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 Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
10
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
12
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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. | McCauley_Jacob_H_DC-3443-19-0478-I-1_Final_Order.pdf | 2024-03-08 | JACOB HERRICK MCCAULEY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DC-3443-19-0478-I-1, March 8, 2024 | DC-3443-19-0478-I-1 | NP |
2,155 | https://www.mspb.gov/decisions/nonprecedential/Wiesner_Andrew_C_PH-3443-21-0204-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW C. WIESNER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-3443-21-0204-I-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew C. Wiesner , Dover, New Hampshire, pro se.
Scott W. Flood , Esquire, Portsmouth, New Hampshire, 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 appellant’s 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 or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On review, the appellant asserts that res judicata is inapplicable because the
reinstatement of his security clearance in 2018, during his employment with an
agency contractor, vitiated his 2013 removal from his position with the agency
based on its revocation of his security clearance. Petition for Review (PFR) File,
Tab 1 at 4, Tab 4 at 4. Res judicata precludes parties from relitigating issues that
were, or could have been, raised in the prior action, and is applicable if the
following criteria are met: (1) the prior judgment was rendered by a forum with
competent jurisdiction; (2) the prior judgment was a final judgment on the merits;
and (3) the same cause of action and the same parties or their privies were
involved in both cases. Jennings v. Social Security Administration , 123 M.S.P.R.
577, ¶ 25 (2016). The administrative judge properly found that the criteria for res
judicata were satisfied here. Initial Appeal File, Tab 13, Initial Decision at 6.
Thus, res judicata bars the appellant from relitigating his 2013 removal.2
2 The appellant makes various arguments regarding a December 2020 settlement
agreement reached in U.S. District Court resolving his complaints about a 2017
nonselection for an apprenticeship program with the agency, the agency’s request that a
contractor terminate his employment in 2018, and an order barring him from agency
facilities in 2018. That settlement agreement, which we are considering even though it
was provided for the first time on review, appears to preclude the appellant’s litigation
of employment disputes with the agency that arose prior to the settlement agreement,
such as his 2013 removal. PFR File, Tab 3 at 18-24. Nevertheless, because that issue
has not been litigated by the parties and because we believe that the administrative2
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).
judge correctly applied the doctrine of res judicata, we are affirming the initial decision
on that basis. To the extent that the appellant is arguing that the agency violated the
terms of the settlement agreement, the Board may not address such a claim because the
Board has no authority to enforce a settlement agreement reached in another forum.
Johnson v. U.S. Postal Service , 108 M.S.P.R. 502, ¶ 8 n.5 (2008), aff’d, 315 F. App’x
274 (Fed. Cir. 2009).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Wiesner_Andrew_C_PH-3443-21-0204-I-1_Final_Order.pdf | 2024-03-08 | ANDREW C. WIESNER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-3443-21-0204-I-1, March 8, 2024 | PH-3443-21-0204-I-1 | NP |
2,156 | https://www.mspb.gov/decisions/nonprecedential/Wyatt_Rochelle_M_AT-0353-16-0492-C-1_AT-0353-16-0492-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCHELLE M. WYATT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-16-0492-X-1
AT-0353-16-0492-C-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Champion , Memphis, Tennessee, for the appellant.
Luis O. Rodriguez and Suzanne B. McCabe , Philadelphia, Pennsylvania,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s May 11, 2017 final decision in Wyatt v. U.S. Postal
Service, MSPB Docket No. AT-0353-16-0492-I-1. Wyatt v. U.S. Postal Service ,
MSPB Docket No. AT-0353-16-0492-C-1, Compliance File (CF), Tab 1. On
September 25, 2017, the administrative judge issued a compliance 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).
finding the agency not in compliance with the Board’s May 11, 2017 final
decision. CF, Tab 10, Compliance Initial Decision (CID). On November 15,
2017, the appellant filed a document that served as both a petition for review of
the compliance initial decision and a response to the agency’s October 30, 2017
statement of compliance in response to the compliance initial decision. Wyatt v.
U.S. Postal Service , MSPB Docket No. AT0353-16-0492-C-1, Compliance
Petition for Review (CPFR) File, Tab 1; Wyatt v. U.S. Postal Service , MSPB
Docket No. AT-0353-16-0492-X-1, Compliance Review File (CRF), Tab 3. On
February 2, 2023, the Board issued a nonprecedential order in which it found the
agency noncompliant on one issue.2 Wyatt v. U.S. Postal Service , MSPB Docket
No. AT-0353016-0492-X-1, Order (Feb. 2, 2023); CRF, Tab 19. We now JOIN
these matters for processing, and for the reasons discussed below, we find the
agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On April 27, 2016, the appellant filed an appeal with the Board alleging
that the agency had denied her restoration to duty following her recovery from
her November 1, 2014 compensable injury. Wyatt v. U.S. Postal Service , MSPB
Docket No. AT-0353-16-0492-I-1, Initial Appeal File (IAF), Tab 1. On May 11,
2017, the administrative judge issued an initial decision finding that the agency
violated the appellant’s restoration rights. IAF, Tab 35, Initial Decision (ID).
The initial decision ordered the agency to restore the appellant to her former
assignment, effective March 15, 2016. ID at 10. It further ordered the agency to
pay the appellant the appropriate amount of back pay, with interest, to adjust the
appellant’s benefits with appropriate credits and deductions, and to inform the
2 Also on February 2, 2023, in a separate, nonprecedential order in MSPB Docket
No. AT-0353-16-0492-C-1, the Board dismissed the appellant’s petition for review of
the compliance initial decision as untimely filed. Wyatt v. U.S. Postal Service , MSPB
Docket No. AT-0353-16-0492-C-1, Order (Feb. 2, 2023); CPFR File, Tab 9. The
instant nonprecedential Final Order now serves as the Board’s final decision in both
MSPB Docket No. AT-0353-16-0492-C-1 and MSPB Docket No. AT-0353-16-0492-X-
1.2
appellant in writing of all actions taken to comply with the Board’s order. ID
at 11. That initial decision became the final decision of the Board on June 15,
2017, after neither party petitioned the full Board for review. ID at 13.
On June 12, 2017, the appellant, through her designated representative,
filed a petition for enforcement of the Board’s final decision, alleging that the
agency had failed to pay her back pay or benefits. CF, Tab 1. On September 25,
2017, the administrative judge issued a compliance initial decision granting the
petition for enforcement based on the agency’s concession it had not yet paid the
appellant her back pay or benefits. CID. The matter was then referred to the
Board to obtain compliance and docketed under Wyatt v. U.S. Postal Service ,
MSPB Docket No. AT-0353-16-0492-X-1. See 5 C.F.R. § 1201.183(b)-(c); CRF,
Tab 2.
Between October 30, 2017, and June 6, 2019, the parties submitted
pleadings regarding the agency’s efforts to reach compliance. The appellant
contended the agency was not in compliance with regard to several aspects of its
back pay calculations, including the appellant’s: (1) night differential pay;
(2) Sunday premium pay; (3) holiday work hours; (4) holiday leave hours;
(5) restored annual leave and sick leave hours; (6) out of schedule premium pay;
(7) Thrift Savings Provision (TSP) regular and TSP Roth deposits; and (8) W-4
tax withholding request. CRF, Tabs 1-3.
On February 2, 2023, the Board issued a nonprecedential order in the
compliance referral matter finding that the agency had reached compliance on all
parts of the back pay calculations except for the appellant’s restored annual leave.
Wyatt, MSPB Docket No. AT-0353-16-0492-X-1, Order, ¶ 17. The Board found
that the agency’s back pay calculations shorted the appellant’s restored annual
leave by two pay periods’ worth of annual leave. Id. The Board thus ordered the
agency to restore to the appellant two additional pay periods of annual leave. Id.
On July 5, 2023, the agency submitted an additional pleading. CRF,
Tab 24. In the new pleading, the agency stated that it provided the appellant the3
two additional pay periods’ worth of accrued annual leave, as ordered, and
included evidence demonstrating it had done so. Id. The appellant has not filed a
response to this pleading.
ANALYSIS
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325,
¶ 5 (2010).
The agency’s final outstanding compliance issue was its obligation to
restore two additional pay periods worth of annual leave to the appellant. The
agency’s last submission shows that the agency has done so and has therefore
reached full compliance. CRF, Tab 24 at 4-6. Additionally, the appellant has not
challenged the agency’s evidence of compliance.
Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and dismisses the petition for enforcement and 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.
§ 1201.183(c)(1)).4
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 Clerk of the Board.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Wyatt_Rochelle_M_AT-0353-16-0492-C-1_AT-0353-16-0492-X-1_Final_Order.pdf | 2024-03-08 | ROCHELLE M. WYATT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-16-0492-X-1, March 8, 2024 | AT-0353-16-0492-X-1 | NP |
2,157 | https://www.mspb.gov/decisions/nonprecedential/Gipson_Taylor_Antionette_DC-1221-19-0019-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTIONETTE GIPSON TAYLOR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-19-0019-W-1
DATE: March 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ntionette Gipson Taylor , College Park, Maryland, pro se.
David R. Scruggs , 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 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).
BACKGROUND
This appeal arises from the appellant’s filing of a supplemental pleading,
titled a cross petition for review, in a prior proceeding that the Office of the Clerk
of the Board forwarded to the regional office for docketing. Initial Appeal File
(IAF), Tab 1. In her appeal, the appellant alleges that the agency retaliated
against her for the allegations she raised in her prior Board appeal and equal
employment opportunity (EEO) complaints by placing her on absence without
leave (AWOL) status after she provided notice that she would be hospitalized
beginning August 21, 2018, subjecting her to a hostile work environment, and
failing to respond to her requests pursuant to the Voluntary Leave Transfer
Program, the Advance Leave Program, and the Family and Medical Leave Act.
Id. at 6. The appellant provided copies of the July 24, 2018 close-out and final
determination letters she received from the Office of Special Counsel (OSC). Id.
at 10-11. In these letters, OSC informed the appellant that it had closed its
inquiry into her complaint that the agency retaliated against her for reporting
sexual harassment and for filing an EEO complaint and notified her of the right to2
seek corrective action from the Board through an IRA appeal for alleged
violations of 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). Id. at 11.
In an Order to Show Cause, the administrative judge informed the appellant
that there was a question regarding whether her appeal was within the Board’s
jurisdiction, apprised her of the elements and burden of proving jurisdiction over
an IRA appeal, and ordered her to file evidence and argument on the
jurisdictional issue. IAF, Tab 3. Although she generally reiterated her
allegations in her initial filing, the appellant also asserted that she disclosed
violations of various rules and regulations. IAF, Tab 5 at 8. She provided copies
of the Department of Veterans Affairs EEO Policy Statement and the Veterans
Health Administrative Directive 1124. Id. at 15-39. The agency asserted that the
Board lacks jurisdiction over this appeal. IAF, Tab 6.
Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 8. The
administrative judge found that, although the appellant had exhausted some of her
claims before OSC, she failed to nonfrivolously allege that she made a protected
disclosure. ID at 5-7. The administrative judge further found that the Board did
not have jurisdiction to consider the appellant’s sexual harassment and retaliation
claims in the context of a mixed-case complaint or appeal because she did not
nonfrivolously allege that the agency took an appealable action under 5 U.S.C.
§ 7512. ID at 7-8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant bears the burden of establishing the Board’s jurisdiction in an
IRA appeal. 5 C.F.R. § 1201.57(b). To establish jurisdiction in an IRA appeal,
an appellant must prove by preponderant evidence2 that she exhausted her
2 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 a3
administrative remedies before OSC and make nonfrivolous allegations3 that:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2). Corthell v. Department of Homeland Security , 123 M.S.P.R. 417,
¶ 8 (2016), overruled on other grounds by Requena v. Department of Homeland
Security, 2022 MSPB 39.
Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may
only consider those disclosures of information and personnel actions that the
appellant raised before OSC. Id. To satisfy the exhaustion requirement, the
appellant must inform OSC of the precise ground of her charge of
whistleblowing, giving OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Id. An appellant may demonstrate exhaustion
through her initial OSC complaint, evidence that she amended the original
complaint, including but not limited to OSC’s determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC referencing the amended allegations. Id.
Here, the appellant did not provide her OSC complaint or any other written
correspondence with OSC. She submitted the close-out and final determination
letters she received from OSC. IAF, Tab 1 at 10-11. The administrative judge
properly determined, based on these letters, that the appellant only proved
exhaustion of her OSC remedies regarding her allegations that the agency detailed
and demoted her in reprisal for disclosing her supervisor’s sexual harassment and
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).4
for filing an EEO complaint. ID at 5; IAF, Tab 1 at 10-11. There is no evidence
in the record that the additional allegations the appellant raised in this appeal
regarding the retaliatory acts to which she was subjected for filing a Board appeal
—placement on AWOL status, creation of a hostile work environment, and denial
and/or disregard of her leave requests—fall within the scope of the claims that
she exhausted before OSC. PFR File, Tab 1 at 5, 11; see Rebstock Consolidation
v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 15 (2015) (stating the
Board only may consider those charges of wrongdoing that the appellant
presented before OSC, and it may not consider any subsequent recharacterization
of those charges put forth in submissions to the Board). As the administrative
judge noted, the appellant has not proved exhaustion of her OSC remedies as to
these allegations. ID at 6.
Thus, at issue in this appeal is whether the appellant made a nonfrivolous
allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D). For the following reasons, we agree with the administrative judge
that she failed to meet her jurisdictional burden.
The appellant’s harassment disclosure is not within the Board’s jurisdiction under
5 U.S.C. § 2302(b)(8)(A).
Under 5 U.S.C. § 2302(b)(8)(A), a protected disclosure is a disclosure of
information that the appellant reasonably believes evidences any violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016).
At the jurisdictional stage, the appellant only is burdened with making a
nonfrivolous allegation that she reasonably believed that her disclosure evidenced
one of the circumstances described in 5 U.S.C. § 2302(b)(8). Id.
On review, the appellant argues that she disclosed “violations of law and
current and standing Office of Personnel [Management] [OPM] and current5
Department of Veterans Affairs [] EEO rules and regulations.” PFR File, Tab 1
at 14. She provides the Department of Veterans Affairs’ EEO Policy Statement
and the Veterans Health Administrative Directive 1124, which generally set forth
the agency’s no-tolerance policy of unlawful discrimination including workplace
harassment. Id. at 21-45. These documents are not a basis for granting the
appellant’s petition for review because they are included in the record below and
thus, are not new. IAF, Tab 5 at 15-39; see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the
record is not new).
Even if we were to consider the appellant’s allegation, the Board lacks
jurisdiction to consider a Title VII claim in an IRA appeal. Under the
Whistleblower Protection Act (WPA), a purported disclosure that an agency
engaged in discrimination and harassment in violation of Title VII is excluded
from coverage under section 2302(b)(8). McDonnell v. Department of
Agriculture, 108 M.S.P.R. 443, ¶ 22 (2008). This principle remains unchanged
under the Whistleblower Protection Enhancement Act of 2012 (WPEA).4
Although the legislative history generally supports a broad interpretation of the
statutory scheme’s protections, the WPEA does not expand the scope of
section 2302(b)(8) to include allegations of wrongdoing that fall within the
purview of Title VII. See Edwards v. Department of Labor , 2022 MSPB 9,
¶¶ 18-21.
The appellant’s EEO activity is not within the Board’s jurisdiction under 5 U.S.C.
§ 2302(b)(9)(A).
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
4 Pursuant to the WPEA, Pub. L. No. 112-199, 126 Stat. 1465, effective December 27,
2012, Congress expanded the grounds on which an appellant may file an IRA appeal
with the Board. Rebstock Consolidation , 122 M.S.P.R. 661, ¶ 5. The alleged actions at
issue in the instant appeal occurred after the effective date of the WPEA. 6
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,
of the two provisions, an employee or applicant for employment may seek
corrective action from the Board only for protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013). Thus, an appellant’s EEO activity is considered
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) only when the complaint
seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8). See
Bishop v. Department of Agriculture , 2022 MSPB 28, ¶ 15.
The appellant argues that the agency retaliated against her for filing an
EEO complaint. PFR File, Tab 1 at 10-11. The appellant’s claim is cognizable
under 5 U.S.C. § 2302(b)(1) and (b)(9), not 5 U.S.C. § 2302(b)(8). Mata v.
Department of the Army , 114 M.S.P.R. 6, ¶ 9 n.3 (2010). In this case, there is no
indication that the appellant’s EEO complaint, which is not included in her
submissions below, sought to remedy whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8). A purported disclosure of one of the categories of wrongdoing
specified in section 2302(b)(8)(A) without any allegation of whistleblower
reprisal is insufficient to constitute a nonfrivolous allegation of protected activity
under section 2302(b)(9)(A)(i). Bishop, 2022 MSPB 28, ¶ 16. Thus, the
appellant has failed to nonfrivolously allege that she engaged in a protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), and any purported disclosures
contained therein cannot form the basis of an IRA appeal. See Redschlag v.
Department of the Army , 89 M.S.P.R. 589, ¶¶ 82, 84 (2001) (finding that a
purported disclosure involving alleged discrimination or reprisal for engaging in
activities protected by Title VII is not protected under 5 U.S.C. § 2302(b)(8)
regardless of whether the appellant made the disclosure within or outside of the
EEO process).
The Board lacks jurisdiction over the appellant’s IRA appeal as a mixed case.
The appellant contends that the administrative judge erred in failing to
adjudicate her appeal as a mixed case. PFR File, Tab 1 at 4-5. We disagree. A7
mixed case is one in which the appellant alleges that she suffered an otherwise
appealable action motivated by unlawful discrimination. See Perry v. Merit
Systems Protection Board , 582 U.S. 420, 431-32 (2017). An otherwise
appealable action is a personnel action that is within the Board’s statutory or
regulatory jurisdiction independent of the WPA and its amendments. Grubb v.
Department of the Interior , 96 M.S.P.R. 377, ¶ 13 (2004); compare 5 U.S.C.
§ 7512 (defining an adverse action appealable to the Board under chapter 75),
with 5 U.S.C. § 2302(a)(2)(A) (defining a personnel action under the WPEA).
Because we agree with the administrative judge that the appellant’s allegations
regarding her detail and demotion are insufficient to support a finding that they
constitute otherwise appealable actions,5 ID at 7, these actions can only be
appealed to the Board if the appellant can establish jurisdiction over such actions
as IRA claims, which she has failed to do here, Grubb, 96 M.S.P.R. 377, ¶ 13.
In sum, the Board lacks jurisdiction over this IRA appeal under 5 U.S.C.
§§ 2302(b)(8)(A), 2302(b)(9)(A) or as a mixed case. The administrative judge
properly dismissed this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
5 OSC characterized the appellant’s complaint as alleging that the agency detailed and
demoted her. IAF, Tab 1 at 10. We rely upon OSC’s letter in this instance because the
appellant has provided no other evidence in support of her allegations and has not
disputed OSC’s characterization of her claims. Absent a reduction in grade or pay, a
detail or a demotion is not an appealable action under 5 U.S.C. § 7512. As the
administrative judge noted, the appellant has not alleged or provided any evidence that
the actions at issue resulted in a reduction in grade or pay. ID at 7 n.7. In addition,
there is no indication in the record that a constructive demotion took place. Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶ 24 n.4 (2015), overruled in part by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ ¶ 23-25.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Gipson_Taylor_Antionette_DC-1221-19-0019-W-1_Final_Order.pdf | 2024-03-08 | ANTIONETTE GIPSON TAYLOR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-19-0019-W-1, March 8, 2024 | DC-1221-19-0019-W-1 | NP |
2,158 | https://www.mspb.gov/decisions/nonprecedential/Beeman_Timothy_W_AT-0752-17-0464-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY WILLIAM BEEMAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0464-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy William Beeman , Decatur, Georgia, pro se.
Karen Rodgers , Montgomery, Alabama, 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 involuntary disability retirement appeal for lack of jurisdiction.2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 On review, the appellant submits an accident report, dated July 8, 2014, and a notice
of proposed suspension dated April 4, 2014, which were not entered into the record
below. Petition for Review (PFR) File, Tab 1 at 14-18, 20-21. Generally, the Board
will not consider this evidence because the appellant submitted it for the first time on
petition for review without showing that it was unavailable before the close of the
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.3
record below despite his due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980); 5 C.F.R. § 1201.115(d). We nevertheless conclude that these
documents do not change the outcome of this appeal.
3 On review, the appellant alleges that he was reassigned for disclosing that he was
improperly denied overtime and for refusing to obey an unlawful order. PFR File,
Tab 1 at 13, 24. The appellant apparently raised this claim, at least in part, in his
testimony. Initial Appeal File (IAF), Tab 24, Initial Decision at 5. There is no
indication he raised it prior to the issuance of the administrative judge’s prehearing
order, in which she limited the issues on appeal to his involuntary disability retirement
claim; therefore, he is deemed to have waived that claim for consideration in this
appeal. IAF, Tab 17 at 3; see Guzman v. Department of Veterans Affairs , 114 M.S.P.R.
566, ¶ 17 (2010). If he wishes to pursue it, he may do so by filing a whistleblower
complaint with the Office of Special Counsel. To that end, we note that when the
appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a prohibited personnel
practice to take an action against an employee for “refusing to obey an order that would
require the individual to violate a law.” The U.S. Court of Appeals for the Federal
Circuit has considered this provision and held that “law” only included statutes, and not
rules and regulations. See Rainey v. Merit Systems Protection Board , 824 F.3d 1359,
1364-65 (Fed. Cir. 2016). However, on June 14, 2017, the President signed the Follow
the Rules Act into law. Pub. L. No. 115-40, 131 Stat. 861 (2017). The Act amends
section 2302(b)(9)(D) to provide whistleblower protection for individuals who refuse to
obey an order that would require violating a law, rule, or regulation. We note, however,
the Board has determined that this expansion does not apply retroactively to cases
pending at the time the Act was enacted. Fisher v. Department of the Interior ,
2023 MSPB 11, ¶¶ 13-19.
3
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 RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Beeman_Timothy_W_AT-0752-17-0464-I-1__Final_Order.pdf | 2024-03-07 | TIMOTHY WILLIAM BEEMAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0464-I-1, March 7, 2024 | AT-0752-17-0464-I-1 | NP |
2,159 | https://www.mspb.gov/decisions/nonprecedential/Hightower_Aubrey_J_DC-0752-17-0687-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AUBREY J. HIGHTOWER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-17-0687-I-2
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aubrey J. Hightower , Vernon Hill, Virginia, pro se.
Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, 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
affirmed his removal for improper conduct. On petition for review, the appellant
argues that the administrative judge abused her discretion concerning discovery
and denied him necessary witnesses and documents. He generally argues she did
not consider all of his evidence and argument. He also reasserts his claims of
disparate treatment disability discrimination, retaliation for equal employment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
opportunity (EEO) activity, reprisal for whistleblowing, and disparate penalty.
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 administrative judge’s analysis of the appellant’s affirmative
defenses, we AFFIRM the initial decision.
In adjudicating the appellant’s disparate treatment disability discrimination
and EEO retaliation claims, the administrative judge applied a mixed-motive
analysis in accordance with the Board’s precedent in Southerland v. Department
of Defense, 119 M.S.P.R. 566, ¶¶ 18-21 (2013). Hightower v. U.S. Postal
Service, MSPB Docket No. DC-0752-17-0687-I-2, Appeal File (I-2 AF), Tab 34,
Initial Decision (ID) at 15. The Board recently clarified that claims of disparate
treatment disability discrimination and EEO retaliation based on activity
protected under Title VII and the Age Discrimination in Employment Act are
subject to a motivating factor standard. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 21, 30. Here, the administrative judge properly
evaluated the evidence as a whole and found that the appellant failed to provide
any evidence that his disability was a motivating factor in the agency’s decision
to remove him. ID at 17-18. The appellant does not challenge this finding on
3
review, and we therefore find that he failed to establish this defense. ID at 17-19;
Petition for Review File, Tab 1.
Similarly, we agree with the administrative judge’s finding that the
appellant failed to show that his prior EEO activity was a motivating factor in the
agency’s decision to remove him. ID at 17-19. To the extent the appellant’s
prior EEO activity may have been protected under the Rehabilitation Act, and
therefore subject to a “but-for” causation standard, see Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶ 33, we find that the appellant’s failure to satisfy the
lower motivating factor standard necessarily means that he failed to meet the
higher “but-for” standard,2 id.
As to the appellant’s whistleblower reprisal claim, the administrative judge
correctly found that the Whistleblower Protection Act does not apply to
employees of the U.S. Postal Service. ID at 23; see Parbs v. U.S. Postal Service ,
107 M.S.P.R. 559, ¶ 21 (2007), aff’d per curiam , 301 F. App’x 923 (Fed. Cir.
2008). Instead, a Postal employee alleging illegal reprisal has the burden of
showing that: (1) he 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. Warren v. Department of the Army , 804 F.2d
645, 656-58 (Fed. Cir. 1986); see Parbs, 107 M.S.P.R. 559, ¶ 21 (stating that the
Warren test applies to whistleblower reprisal claims brought by Postal
employees). The Warren test is a higher standard of proof than that set forth in
the whistleblower protection statutes. Parbs 107 M.S.P.R. 559, ¶ 21.
The administrative judge, applying the less stringent standard, found no
evidence in support of the appellant’s allegation that the agency removed him in
reprisal for whistleblowing because he failed to identify what information he
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination and EEO 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.
4
disclosed, to whom he disclosed it, and when he did so. ID at 23-24; I-2 AF,
Tab 13 at 2. Because the appellant offered no evidence in support of his
contention, she found that the appellant also failed to establish this defense. ID
at 24. The appellant has not disputed the administrative judge’s finding that he
did not identify his disclosures. Although the administrative judge did not apply
the correct standard, her finding that the appellant failed to meet the less stringent
standard necessarily means that he failed to meet the stricter standard set forth in
Warren.
In adjudicating the appellant’s disparate penalty claim, the administrative
judge relied on Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657, ¶ 15
(2010), which we recently overruled in Singh v. U.S. Postal Service ,
2022 MSPB 15. ID at 29-30. Under Singh, the relevant inquiry is whether the
agency knowingly and unjustifiably treated employees differently. Singh,
2022 MSPB 15, ¶ 14. The administrative judge found that the appellant failed to
prove his disparate penalty claim because he failed to identify an appropriate
comparator. ID at 31. The appellant does not challenge this finding on review,
and we find that he did not show disparate penalty under Singh.
We have considered the appellant’s remaining arguments raised in his
petition for review, and we discern no basis to disturb the findings in the initial
decision. We therefore deny the petition for review and affirm the initial decision
as modified herein.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Hightower_Aubrey_J_DC-0752-17-0687-I-2 Final Order.pdf | 2024-03-07 | AUBREY J. HIGHTOWER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-17-0687-I-2, March 7, 2024 | DC-0752-17-0687-I-2 | NP |
2,160 | https://www.mspb.gov/decisions/nonprecedential/Bullock_Joyce_L_AT-0752-21-0230-I-1 Final Orderpdf.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYCE L. BULLOCK,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-21-0230-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joyce L. Bullock , Biloxi, Mississippi, pro se.
Benjamin Signer , Joint Base Andrews, 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
affirmed the appellant’s removal. On petition for review, the appellant does not
challenge the administrative judge’s findings and instead restates her previous
assertions that someone has stolen her identity and that she is in jeopardy of
having her life stolen, states her concern that someone has been reinstated into
her position using her social security number, and expresses her belief that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
people’s identities are being changed. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the proper legal standard for analyzing the appellant’s
affirmative defense of disparate treatment disability discrimination, we AFFIRM
the initial decision.
On review, the appellant does not appear to challenge the substance of the
administrative judge’s findings that the agency met its burden of proving the
medical inability charge and that she failed to prove her affirmative defenses.
With the exception of the clarification of the legal standard used to analyze the
disparate treatment disability discrimination defense, discussed below, we see no
reason to disturb those findings.2 Petition for Review (PFR) File, Tab 1 at 1-6;
2 With her petition for review, the appellant includes copies of a June 18, 2018 EEO
Counselor’s report and a June 14, 2018 notice of right to file a discrimination
complaint. PFR File, Tab 1 at 7-20. Both of these documents were already included in
the record below, so they are not new. Compare PFR File, Tab 1 at 7-9, 13-20, with
IAF, Tab 12 at 23-33 and compare PFR File, Tab 1 at 11-12, with IAF, Tab 13
at 110-11; see Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10
(2009) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with a petition for review absent a showing that it is both
new and material); Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980)
(explaining that evidence that is already a part of the record is not new). The appellant
also has not explained how these documents are relevant or how they would warrant a2
Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
We modify the initial decision to clarify the proper legal standard for analyzing
the appellant’s disparate treatment disability discrimination affirmative defense.
In the initial decision, the administrative judge found that the appellant
failed to prove her affirmative defenses of disability discrimination based on a
failure to accommodate and disparate treatment. Initial Appeal File (IAF),
Tab 23, Initial Decision (ID) at 7-11. He determined that she failed to prove the
failure to accommodate claim because she failed to demonstrate that she could
perform the essential function of her position, with or without accommodation,
and failed to prove the disparate treatment claim because she did not identify any
similarly situated comparators who were treated less harshly, and further, because
the medical evidence formed the basis for the agency’s determination that the
appellant could not perform the essential functions of her position. ID at 9-11.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act (ADA), as amended. Id.
Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. Id. In particular, the ADA provides that it is illegal
for an employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28. An employer is also required to provide reasonable
different outcome in her appeal, so they are not material and we have not considered
them.3
accommodations to an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5); Haas, 2022 MSPB 36, ¶ 28. Both claims require that the
individual be “qualified.” Haas, 2022 MSPB 36, ¶ 28. 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. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28.
Although the administrative judge did not make a specific finding that the
appellant was not a “qualified” individual with a disability, he concluded that she
could not perform the essential functions of her position with or without
accommodation, based on the fact that her position required regular interaction
with the public and coworkers, which both of the appellant’s psychiatrists
concluded was incompatible with her Delusional Disorder condition, absent
medication or psychotherapy—both of which the appellant declined. ID at 9-10;
see 29 C.F.R. §§ 1630.2(m), 1630.3; ID at 6-7. In addition, the agency provided
evidence that it searched for but was unable to find a reassignment position for
the appellant, despite the appellant’s rejection of the agency’s offer to search for
such positions, and the appellant failed to present any argument or evidence to the
contrary. IAF, Tab 12 at 51-55; see Rosario-Fabregas v. Department of the
Army, 122 M.S.P.R. 468, ¶ 18 (2015) (indicating that an appellant failed to
engage in the interactive process when he did not identify any vacant, funded
position to which the agency might have reassigned him), aff’d, 833 F.3d 1342
(Fed. Cir. 2016); IAF, Tab 22 at 37; ID at 14. Accordingly, we agree with the
administrative judge’s determination that the appellant failed to prove that she
could perform the essential functions of her position, with or without reasonable
accommodation. ID at 8-10. Thus we agree that the appellant failed to prove her
disability discrimination claim based on a failure to accommodate.
Additionally, despite finding that the appellant was unable to perform the
essential functions of her position (and was thus not a qualified individual with a
disability), the administrative judge mistakenly further analyzed the appellant’s4
disparate treatment disability discrimination claim under the standard identified
in Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶ 18 (2009), which
considers the following: (1) was the appellant a member of protected group;
(2) was he similarly situated to an individual who was not a member of a
protected group; and (3) was he treated more harshly than the individual who was
not a member of his protected group. ID at 10-11 (citing Smith, 112 M.S.P.R.
173, ¶ 18). In Pridgen, 2022 MSPB 31, ¶ 42, the Board clarified that disparate
treatment disability discrimination claims should be analyzed under the same
analytical framework as disparate treatment discrimination claims under
Title VII. Nevertheless, because the appellant failed to meet the threshold
requirement of showing that she is a qualified individual with a disability—a
finding the appellant does not challenge on review—the administrative judge’s
application of the incorrect standard does not warrant a different outcome. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
Accordingly, the initial decision is affirmed as modified by this Final
Order.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Bullock_Joyce_L_AT-0752-21-0230-I-1 Final Orderpdf.pdf | 2024-03-07 | JOYCE L. BULLOCK v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-21-0230-I-1, March 7, 2024 | AT-0752-21-0230-I-1 | NP |
2,161 | https://www.mspb.gov/decisions/nonprecedential/Moses_Hilda_E_AT-315H-21-0033-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HILDA ELAINE MOSES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-315H-21-0033-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lewis Rhodes , Esquire, McLean, Virginia, for the appellant.
Kenneth William , 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 her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues for the first time that she is an
“employee” with appeal rights under 5 U.S.C. chapter 75 . Petition for Review
(PFR) File, Tab 1 at 4. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues for the first time that she “completed one
year of probationary civilian service.” PFR File, Tab 1 at 4. To support this
claim, she submits a Standard Form 50 reflecting her resignation from another
Federal agency over 8 years before her probationary appointment to the position
from which she was terminated. Id. at 6.
To qualify as an “employee” with appeal rights under chapter 75, an
individual in the competitive service must show that she either “is not serving a
probationary or trial period under an initial appointment; or . . . has completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less.” 5 U.S.C. § 7511(a)(1)(A); Hurston v. Department of
the Army, 113 M.S.P.R. 34, ¶ 9 (2010). An individual who has not served a full
year under her appointment can show that she has completed the probationary
period, and so is no longer a probationer, by tacking on prior service if (1) the
prior service was rendered immediately preceding the probationary appointment;
(2) it was performed in the same agency; (3) it was performed in the same line of
work; and (4) it was completed with no more than one break in service of less2
than 30 days. Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R. § 315.802(b).
Alternatively, an individual can show that, while she may be a probationer, she is
an “employee” with chapter 75 appeals rights because, immediately preceding the
adverse action, she had completed at least 1 year of current continuous service
without a break in Federal civilian employment of a workday. Hurston,
113 M.S.P.R. 34, ¶ 9.
There is no dispute that the appellant was appointed to her position on
October 27, 2019, subject to a 1-year probationary period, and that she was
terminated on October 21, 2020, prior to the conclusion of her probationary
period. IAF, Tab 1 at 8-10, Tab 7 at 14. However, she argues that she qualifies
as a competitive service “employee” with appeal rights under chapter 75 because
of her prior civilian service. PFR File, Tab 1 at 4. The record evidence shows
that the appellant’s prior service ended over 8 years before her probationary
appointment to the position from which she was terminated. Id. at 6. Thus, her
prior service did not immediately precede her probationary appointment, and
there was a break in service of more than 30 days. Additionally, it is undisputed
that the agency terminated the appellant just shy of her completion of 1 year of
service in the competitive service. IAF, Tab 1 at 8, Tab 7 at 14. Therefore, the
appellant had not yet completed 1 year of current continuous service without a
break in Federal civilian employment prior to her termination. Based on the
foregoing, the appellant has not nonfrivolously alleged that she qualifies as an
“employee” with appeal rights under chapter 75.
Accordingly, we affirm the initial decision dismissing her probationary
termination appeal for lack of jurisdiction.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 | Moses_Hilda_E_AT-315H-21-0033-I-1__Final_Order.pdf | 2024-03-07 | HILDA ELAINE MOSES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-315H-21-0033-I-1, March 7, 2024 | AT-315H-21-0033-I-1 | NP |
2,162 | https://www.mspb.gov/decisions/nonprecedential/Nulty_MichaelSF-0752-20-0378-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL NULTY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-20-0378-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crista Kraics , Esquire, Stafford, Virginia, for the appellant.
Holly Kay Botes , APO, Armed Forces Pacific, 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 reduction in grade and pay. On petition for review, the appellant
argues that the administrative judge erred in sustaining several of the
specifications. He also contests the administrative judge’s findings on penalty
and due process, and he disputes some of the administrative judge’s credibility
determinations and evidentiary rulings. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one 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 the extent that the administrative judge misattributed some of the
hearing testimony to the deciding official, we AFFIRM the initial decision.
In her initial decision, the administrative judge found that the deciding
official considered the appellant’s medical condition in arriving at the removal
penalty. Initial Appeal File (IAF), Tab 42, Initial Decision (ID) at 42. We agree
with the appellant that the administrative judge’s finding was based on hearing
testimony from the proposing official, which the administrative judge
misattributed to the deciding official. Petition for Review File, Tab 1 at 11; IAF,
Tab 34, Hearing Recording, Day 1, Track 1 at 56:10 (testimony of the proposing
official).
Nevertheless, we find that the administrative judge’s error in this regard
was immaterial. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis to reverse an initial decision). Evidence that
an employee’s medical condition played a part in the charged conduct is
ordinarily entitled to considerable weight as a mitigating factor. Bowman v.
Small Business Administration , 122 M.S.P.R. 217, ¶ 13 (2015); Hamilton v. U.S.2
Postal Service, 84 M.S.P.R. 635, ¶ 19 (1999). In any event, regardless of whether
the appellant made the deciding official aware of his heart condition, an
administrative judge must consider evidence that a medical condition played a
part in the misconduct, even if this issue is raised for the first time before the
Board. Bowman, 122 M.S.P.R. 217, ¶ 11. Here, she did so. ID at 42. We
discern no error in her decision not to mitigate the penalty because the appellant
has not claimed on review that his heart condition contributed to his misconduct.
Id.; see Gaines v. Department of the Air Force , 94 M.S.P.R. 527, ¶ 13 (2003).
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.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 | Nulty_MichaelSF-0752-20-0378-I-1 Final Order.pdf | 2024-03-07 | MICHAEL NULTY v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-20-0378-I-1, March 7, 2024 | SF-0752-20-0378-I-1 | NP |
2,163 | https://www.mspb.gov/decisions/nonprecedential/Turner_Mary_S_CH-4324-19-0433-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY STOCKARD TURNER,
Appellant,
v.
NATIONAL ARCHIVES AND
RECORDS ADMIN,
Agency.DOCKET NUMBER
CH-4324-19-0433-I-2
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary Stockard Turner , St Louis, Missouri, pro se.
Stephani L. Abramson , Esquire, Hannah Bergman , and Sean W. Ryal ,
College Park, 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
denied her request for corrective action in connection with her appeal under
Uniformed Services Employment and Reemployment Rights Act (USERRA).
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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).
Following a hearing, the administrative judge issued a thorough and
well-reasoned initial decision in which she addressed the appellant’s claims
regarding seven nonselections for promotions/details, four reassignments, four
other actions,3 and a general claim of a hostile work environment, all of which the
appellant contended were based on discrimination due to her status as a military
reservist and in retaliation for her protected activity of asserting her rights under
2 After the record closed on review, the appellant filed a motion requesting leave to
include new evidence in her petition for review purportedly showing that the
administrative judge acted improperly. 5 C.F.R. § 1201.114(k); Petition for Review
File, Tab 6. Once the record closes on review, no additional evidence or argument will
be accepted unless it is new and material and was not readily available before the record
closed. 5 C.F.R. § 1201.114(k). Because the appellant’s motion does not show that her
evidence is material nor that it was not readily available before the record closed on
review, it is denied.
3 These included the appellant’s claims that the agency was slow in providing her office
essentials (phone and computer access) when she returned from a period of leave in
May 2018, transferred her belongings when she was on leave prior to May 15, 2018,
pressured her to change a subordinate’s appraisal during fiscal year 2013, and ignored a
complaint she filed with the Office of Inspector General in the summer of 2018.
Turner v. National Archives and Records Admin , MSPB Docket No. CH-4324-19-0433-
I-2, Appeal File, Tab 16 at 3-5.2
USERRA. Turner v. National Archives and Records Admin , MSPB Docket No.
CH-4324-19-0433-I-2, Appeal File, Tab 32, Initial Decision (ID). The
nonselections and other events complained about by the appellant occurred
between 2012 and 2018. The administrative judge carefully examined
the documentary and testimonial evidence related to each nonselection for
promotion/detail, the reassignments, and the other actions, finding that the
appellant did not offer sufficient evidence to show that any were based on her
status as a military reservist or due to her protected activity of asserting her
USERRA rights. ID at 11-25. The administrative judge further found that the
appellant failed to prove her claim that, based on her military service or protected
activity, the agency subjected her to a hostile work environment, and that she also
failed to show that the agency had a general animosity towards veterans or those
who were obligated to perform military service. ID at 25-29. Accordingly, the
administrative judge denied the appellant’s request for corrective action. ID at 2,
30.
The appellant’s petition for review consists of a copy of the initial decision
to which she has noted, in bold, her specific objections to certain of the
administrative judge’s statements or findings. Petition for Review (PFR) File,
Tab 1 at 2-30. The great majority of these objections have no bearing on her
USERRA claim, that is, they do not explain the significance of the appellant’s
military service or protected activity to the actions of which she complains.
38 U.S.C. § 4311(a), (b); Sheehan v. Department of the Navy , 240 F.3d 1009,
1012 (Fed. Cir. 2001). Thus, they do not support a finding that the administrative
judge erred in concluding that the appellant failed to prove a violation of
USERRA. Regarding her objections to the administrative judge’s findings in
which the appellant does allude to her military service, she merely disagrees with
those findings in conclusory fashion. A petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a serious
evidentiary challenge justifying a complete review of the record. Tines v.3
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992). The appellant’s
disagreement with the administrative judge’s findings does not explain why they
are incorrect or otherwise establish error. Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010) (stating that a petition for review that consists of
mere disagreement with the initial decision does not provide a basis to grant
review); see Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
The appellant raises two claims of bias by the administrative judge.
She first challenges the administrative judge’s statement, made after she had
reviewed the record, that “the evidence revealed tendencies on [the] [a]ppellant’s
part to interpret innocuous events negatively and let unfounded perceptions color
her review of the facts . . . .” ID at 23. On review, the appellant argues only that
the statement reflects bias on the administrative judge’s part. PFR File, Tab 1
at 24. In making a claim of bias, an appellant 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 mere fact that an
administrative judge does not accept the appellant’s assertions or interprets
testimony in the fashion the appellant claims is correct does not constitute bias.
Protopapa v. Department of Transportation , 14 M.S.P.R. 455, 459 (1983).
Here, the appellant’s claim of bias reflects only her disagreement with the
administrative judge’s findings. We therefore find this bias claim to be without
merit.
The appellant also argues that the administrative judge’s credibility
determinations reflect bias. PFR File, Tab 1 at 28. The administrative judge
found that all of the agency witnesses were credible, and that they exhibited
appropriate demeanor, even while being questioned by the appellant. ID at 27.4
Notably, the administrative judge did not find that the appellant was incredible,
but rather that she was generally credible, except that, when she discussed her
claims of military bias, she was not persuasive. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so); ID at 22-23, 27-28. The administrative judge further found
that the appellant could point to no evidence in the record to support her
contention that the agency had discriminated or retaliated against her based on
her military service, except for her subjective belief, and that she appeared to
have a heightened sensitivity to straightforward agency actions. ID at 23, 28.
None of these statements or findings by the administrative judge evidence bias.
Neither do the appellant’s contrary conclusory statements.4 Lee v. U.S. Postal
Service, 48 M.S.P.R. 274, 281 (1991).
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
4 Regarding the appellant’s argument that the administrative judge erred in her
discovery-related rulings, PFR File, Tab 1 at 10, an administrative judge has broad
discretion in ruling on discovery matters, and absent an abuse of discretion, the Board
will not find reversible error in such rulings, Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365, ¶ 16 (2016). The appellant’s allegations do not establish an abuse of
discretion in this appeal.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Turner_Mary_S_CH-4324-19-0433-I-2__Final_Order.pdf | 2024-03-07 | MARY STOCKARD TURNER v. NATIONAL ARCHIVES AND RECORDS ADMIN, MSPB Docket No. CH-4324-19-0433-I-2, March 7, 2024 | CH-4324-19-0433-I-2 | NP |
2,164 | https://www.mspb.gov/decisions/nonprecedential/Plasola_Jesse_B_SF-0842-20-0729-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-0842-20-0729-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse B. Plasola , Oxnard, California, pro se.
Tanisha Elliott , 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 of the reconsideration decision by the Office of Personnel
Management (OPM) for lack of jurisdiction after OPM rescinded its decision.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant appealed to the Board OPM’s reconsideration decision,
which found that his former spouse is entitled to a monthly apportionment of his
retirement benefits. Initial Appeal File (IAF), Tab 1 at 3, 5-9. OPM
subsequently rescinded its reconsideration decision, and the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID)
at 1-2. The appellant has filed a petition for review arguing the merits of his
appeal before OPM but not addressing the jurisdictional issue. Petition for
Review (PFR) File, Tab 1 at 2-10. OPM has responded and the appellant has
replied, again arguing the merits of his appeal but not addressing the
jurisdictional issue.2 PFR File, Tab 4, Tab 7.
If OPM completely rescinds a reconsideration decision, its rescission
divests the Board of jurisdiction over the appeal in which that reconsideration
2 OPM has filed an untimely response to the petition for review and a motion to accept
the filing as timely. PFR File, Tabs 4, 6. We decline to address this timeliness issue
because, as set forth below, we find that the appellant’s petition for review does not
provide grounds for disturbing the initial decision. 2
decision is at issue, and the appeal must be dismissed. Frank v. Office of
Personnel Management , 113 M.S.P.R. 164, ¶ 7 (2010). OPM asserted that it “has
rescinded its decision” and, once the Board’s decision dismissing this appeal was
final, would route the matter to the proper department for processing and a new
analysis. IAF, Tab 11 at 4-5. Although the appellant objected to the dismissal of
his appeal, he did not challenge the accuracy of OPM’s statement that it rescinded
its reconsideration decision or identify any other basis on which to find that the
Board retains jurisdiction in the absence of the rescission. IAF, Tab 13. On
petition for review, he similarly does not dispute that OPM rescinded the decision
that was the basis for this appeal. PFR File, Tabs 1, 7. Accordingly, we agree
with the administrative judge that the Board lacks jurisdiction over this appeal.
ID at 1-2. The appellant’s current arguments regarding the merits are premature
because OPM has yet to issue a new decision. See Bernardino v. Office of
Personnel Management , 55 M.S.P.R. 615, 617 (1992). If the appellant is
dissatisfied with any subsequent OPM decision regarding his retirement benefits,
he may request that OPM reconsider the decision and, if he is still dissatisfied,
may appeal OPM’s final decision to the Board. See 5 U.S.C. § 8461(e)(1); Frank,
113 M.S.P.R. 164, ¶ 9.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 6
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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Plasola_Jesse_B_SF-0842-20-0729-I-1__Final_Order.pdf | 2024-03-07 | JESSE B. PLASOLA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-20-0729-I-1, March 7, 2024 | SF-0842-20-0729-I-1 | NP |
2,165 | https://www.mspb.gov/decisions/nonprecedential/Randle_Holly_A_CH-315H-21-0134-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOLLY ANN RANDLE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-315H-21-0134-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Holly Ann Randle , Clarksville, Tennessee, pro se.
Katherine E. Griffis , Esquire, Fort Campbell, Kentucky, 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 probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that she was misled by the agency
regarding her termination, she was treated differently than other nurses in her
department because she was not married and did not drink or socialize on the job,
and she suffered from mental health issues. Petition for Review (PFR) 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).
2
Tab 1 at 3-4. She also reasserts her arguments raised below of race
discrimination and harassment. Id. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant failed to
nonfrivolously allege Board jurisdiction over her appeal on either a statutory or
regulatory basis. Initial Appeal File (IAF), Tab 4, Initial Decision (ID) at 3-4;
see 5 U.S.C. § 7511(a)(1)(A); see also 5 C.F.R. §§ 315.805, 315.806. As such,
the administrative judge also appropriately concluded that the Board lacked
jurisdiction to consider the merits of the appellant’s appeal or her prohibited
personnel practices claims of discrimination. ID at 4; see Sapla v. Department of
the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (stating that an appellant’s arguments
concerning the merits of the appeal are not relevant to the question of
jurisdiction); see also Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980)
(stating that, prohibited personnel practices under 5 U.S.C. § 2302(b) are not
independent sources of Board jurisdiction and that, absent an otherwise
appealable action, the Board is without jurisdiction to consider them), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982).
3
On review, the appellant asserts that she “wasn’t married like the other
nurses in [her] department.” PFR File, Tab 1 at 3. Below, she asserted that she
was a “single mother” and “the head of the household.” IAF, Tab 1 at 5.
Considering these assertions as a whole, it appears that the appellant may be
attempting to raise a claim of discrimination on the basis of marital status—a
claim that could bring this appeal within the Board’s jurisdiction. See 5 C.F.R.
§ 315.806(b) (providing for Board jurisdiction when an appellant nonfrivolously
alleges that her termination was the result of discrimination based on partisan
political reasons or marital status). Because the administrative judge did not
consider the appellant’s claims in this way, we do so now. See Lovoy v.
Department of Health and Human Services , 94 M.S.P.R. 571, ¶ 30 (2003) (stating
that jurisdiction is always before the Board and may be raised by any party or sua
sponte by the Board at any time during the proceedings).
To be entitled to a hearing on jurisdiction, an appellant must present
nonfrivolous allegations of Board jurisdiction. Coleman v. Department of the
Army, 106 M.S.P.R. 436, ¶ 9 (2007). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory, is
plausible on its face, and is material to the legal issues in the appeal. Id. Here,
the appellant’s allegations include no detail or context other than the bare
assertions that she was a single mother, the head of the household, and the only
unmarried nurse in her department. IAF, Tab 1 at 5; PFR File, Tab 1 at 3. For
example, she has not alleged that any agency official with decision -making
authority was aware that she was unmarried, that any employee in her department
expressed bias against unmarried employees, or even that her unmarried status
played a role in her termination. IAF, Tab 1; PFR File, Tab 1. The appellant’s
bare assertions, without more, do not constitute a nonfrivolous allegation of
jurisdiction. See Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶ 8 (2016)
4
(stating that a vague, conclusory, or unsupported allegation, such as one that
essentially repeats the legal standard, without more, is pro forma and
insufficient), aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017), and overruled
on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11.
Therefore, we ultimately agree with the administrative judge’s conclusion that the
appellant failed to nonfrivolously allege a regulatory basis for Board jurisdiction.2
ID at 3-4.
Additionally, the appellant submits with her petition for review several
documents including text or social media messages between employees discussing
drinking, photos of bottles of alcohol, and emails that concern leave and reiterate
her allegations of discrimination and harassment. PFR File, Tab 1 at 5-32. These
documents do not appear to have been submitted into the record below. IAF,
Tab 1. Generally, the Board will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record closed before the administrative judge despite the party’s due diligence.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213 -14 (1980). Here, while
some of the new documents do not contain a date, some of the messages are dated
July 21, 2020, and September 25, 2020, and some of the emails are from October
2020 through February 2021. PFR File, Tab 1 at 5-32. The record below appears
to have closed on or around February 3, 2021. IAF, Tab 2 at 1, 5. Thus, the
majority of the documents submitted on review were available below before the
record closed, and the appellant has not explained why she was unable to submit
them then. PFR File, Tab 1. However, there appear to be two emails dated
February 5, 2021, which is after the record closed. Id. at 18. Both appear to be
2 To the extent it constituted error for the administrative judge to not consider the
appellant’s claims below, the appellant’s substantive rights were not prejudiced because
she has ultimately failed to raise a nonfrivolous allegation that her termination was the
result of discrimination based on marital status. As such, any error does not provide a
basis to disturb the initial decision. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
5
communications with an agency representative concerning the appellant’s appeal
before the Board. Id. Neither contains any substance related to Board
jurisdiction. Id. Based on our review of all of the documents, the appellant has
not explained how any —either those dated before the record closed below or
those dated after the record closed—are relevant to the question of jurisdiction, or
are otherwise of sufficient weight to warrant an outcome different than that of the
initial decision, and thus, they do not provide a basis to grant the petition for
review. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(stating 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).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Randle_Holly_A_CH-315H-21-0134-I-1__Final_Order.pdf | 2024-03-07 | HOLLY ANN RANDLE v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-315H-21-0134-I-1, March 7, 2024 | CH-315H-21-0134-I-1 | NP |
2,166 | https://www.mspb.gov/decisions/nonprecedential/Mayer_Andrew_P_DC-0752-21-0119-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW MAYER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-21-0119-I-1
DATE: March 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Mayer , Woodbridge, Virginia, pro se.
Kara Greenberg and Tameka M. Collier , Arlington, Virginia, 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
dismissed the appellant’s removal appeal without prejudice. On petition for
review, the agency argues that, contrary to the initial decision, the appellant made
a binding election to file a mixed-case appeal directly with the Board rather than
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
pursue a formal equal employment opportunity (EEO) complaint.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 In particular, the agency argues that the decision letter did not contain misinformation
regarding the election requirement, that it provided the appellant sufficient notice of the
consequences of filing an appeal directly with the Board, and that the appellant was
aware of those consequences. The agency also contends that the administrative judge
erred in finding that the appellant’s email to the EEO counselor constituted a binding
election to challenge his removal through the EEO process. However, the
administrative judge did not make such a finding.
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 | Mayer_Andrew_P_DC-0752-21-0119-I-1 Final Order.pdf | 2024-03-07 | ANDREW MAYER v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-21-0119-I-1, March 7, 2024 | DC-0752-21-0119-I-1 | NP |
2,167 | https://www.mspb.gov/decisions/nonprecedential/Watson_Jerry_M_AT-1221-21-0245-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY MITCHEL WATSON,
Appellant,
v.
TENNESSEE VALLEY AUTHORITY,
Agency.DOCKET NUMBER
AT-1221-21-0245-W-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerry Mitchel Watson , Ripley, Tennessee, pro se.
John E. Slater , Knoxville, Tennessee, 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 appeal for lack of jurisdiction. On
petition for review, the appellant submits copies of email correspondence with the
Office of Special Counsel, predating the filing of this 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed.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
2 The appellant has not explained why the newly submitted evidence was unavailable,
despite his due diligence, before the close of the record below. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (holding that, 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).
Moreover, the appellant has not shown that the evidence would warrant a different
result. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (holding that
the Board will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Watson_Jerry_M_AT-1221-21-0245-W-1__Final_Order.pdf | 2024-03-06 | JERRY MITCHEL WATSON v. TENNESSEE VALLEY AUTHORITY, MSPB Docket No. AT-1221-21-0245-W-1, March 6, 2024 | AT-1221-21-0245-W-1 | NP |
2,168 | https://www.mspb.gov/decisions/nonprecedential/Parris_Steven_R_PH-0845-20-0368-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN R. PARRIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-20-0368-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven R. Parris , Philadelphia, Pennsylvania, pro se.
Tanisha Elliott , 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that the appellant was overpaid $18,377 in annuity benefits under
the Federal Employees’ Retirement System (FERS), and was not entitled to a
waiver of the overpayment. On petition for review, the appellant argues the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge erred in finding OPM’s delay in processing of his disability
retirement claim and its failure to process his claim through the Federal Medical
Evidence and Record Program (FEDMER) failed to give rise to an “exceptional
circumstance” warranting waiver of the overpayment. Petition for Review (PFR)
File, Tab 1 at 3-5. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant provides several documents for the Board’s consideration on
review, including FEDMER program information and a FERS disability
retirement checklist.2 PFR File, Tab 1 at 7-10. 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. 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 a completed
2 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. PFR File, Tab 1
at 7-8; IAF, Tab 1 at 16-17; see Brough v. Department of Commerce , 119 M.S.P.R. 118,
¶ 4 (2013) (observing that the Board will grant a petition for review based on new and
material evidence under certain circumstances, but that evidence that is already a part of
the record is not new). We decline to discuss these documents further.2
FEDMER Social Security Disability Eligibility Statement dated July 20, 2018,
and an SSA disability retirement checklist, neither of which warrants a different
outcome. PFR File, Tab 1 at 9-10. We therefore decline to consider them
further.
Accordingly, we affirm the initial decision.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 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).
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 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Parris_Steven_R_PH-0845-20-0368-I-1__Final_Order.pdf | 2024-03-06 | STEVEN R. PARRIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-20-0368-I-1, March 6, 2024 | PH-0845-20-0368-I-1 | NP |
2,169 | https://www.mspb.gov/decisions/nonprecedential/Jones_Lillian_K_SF-0831-21-0220-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIAN K. JONES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-21-0220-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lillian K. Jones , Oakland, California, 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 her appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision on her claim. On petition for
review, the appellant reasserts her claim that she is entitled to survivor annuity
benefits and asks the Board to award her such benefits. 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.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
2 As the administrative judge observed, we remind the appellant that she will have the
right to file a new appeal with the Board challenging any reconsideration decision by
OPM once it issues a final decision regarding her claim. Initial Appeal File, Tab 14,
Initial Decision at 3; see 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 | Jones_Lillian_K_SF-0831-21-0220-I-1__Final_Order.pdf | 2024-03-06 | LILLIAN K. JONES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-21-0220-I-1, March 6, 2024 | SF-0831-21-0220-I-1 | NP |
2,170 | https://www.mspb.gov/decisions/nonprecedential/Coleman_VelettaDA-0841-23-0038-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VELETTA C. COLEMAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-23-0038-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Veletta C. Coleman , Dallas, Texas, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her Federal Employees’ Retirement System benefits appeal for lack of
jurisdiction after the Office of Personnel Management (OPM) rescinded its final
decision. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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.2 5 C.F.R. § 1201.113(b).
¶2The appellant asserts that the administrative judge erred in his adjudication
of the matter by, among other things, denying her discovery and a hearing.
Petition for Review (PFR) File, Tab 1 at 8, Tab 6 at 4. However, we find no
abuse of discretion by the administrative judge because none of these procedures
could result in a finding of jurisdiction where OPM has rescinded its final
decision. Initial Appeal File (IAF), Tab 23, Initial Decision at 3; see Moore v.
Office of Personnel Management , 114 M.S.P.R. 549, ¶ 4 (2010) (explaining that,
if OPM completely rescinds a final decision, the recission divests the Board of
jurisdiction over the appeal in which that decision is at issue, and the appeal must
be dismissed). To the extent the appellant asserts that the administrative judge
was biased against her, PFR File, Tab 1 at 8, we find her assertion
unsubstantiated, see Vaughn v. Department of the Treasury , 119 M.S.P.R. 605,
¶ 19 (2013) (finding that broad and general allegations of bias are insufficient to
overcome the presumption of the administrative judge’s honesty and integrity).
¶3The appellant contends that OPM failed to designate a representative and
failed to submit its response file to the administrative judge. PFR File, Tab 1
2 The appellant has filed a motion for leave to file an additional pleading. Petition for
Review File, Tab 8 at 1-3. The appellant’s motion does not describe any documents
that are material to the jurisdictional issue; accordingly, we deny the motion. 2
at 4. We appreciate the appellant’s frustration, but we find that nothing about
OPM’s participation in this appeal prejudiced her substantive rights. See
Brown v. Office of Personnel Management , 43 M.S.P.R. 352, 359 n.9 (1990),
reconsideration denied , 50 M.S.P.R. 383 (1991) (Table). The appellant also
contends that OPM engaged in prohibited personnel practices, to include
discrimination. E.g., PFR File, Tab 1 at 7-8, Tab 2 at 9. However, in the absence
of an appealable matter, the Board lacks jurisdiction to consider these claims. See
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871 -73 (D.C. Cir. 1982). Thus,
the appellant’s contentions do not provide a basis to disturb the initial decision.
¶4Lastly, the appellant argues that OPM’s decision was unduly delayed, and
she requests damages for the impact of the delay. PFR File, Tab 1 at 3, 6, Tab 2
at 9; IAF, Tab 1 at 9-11. The Board may take jurisdiction over a retirement
appeal if the appellant has made repeated requests for a reconsideration decision
and the evidence shows that OPM does not intend to issue a final decision. See,
e.g., Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632, ¶ 5 (2012).
The Board has also previously found that it may assume jurisdiction when OPM
has indicated that it does not intend to issue an initial decision. See, e.g.,
Easter v. Office of Personnel Management , 102 M.S.P.R. 568, ¶ 8 (2006) .
However, we find no authority for the proposition that, once OPM has issued a
decision, its delay in issuing the decision constitutes “an administrative action or
order” affecting the appellant’s rights or interests under FERS. See 5 U.S.C.
§ 8461(e).
¶5Accordingly, we affirm the initial decision, which dismissed the appeal for
lack of jurisdiction. OPM has represented that it intends to issue new decisions
concerning these matters. We understand the appellant has already experienced
significant delays in achieving a final resolution to her case. Therefore, the
Board encourages OPM to act expeditiously to issue a final decision. Whether3
OPM does this by first issuing an initial decision with reconsideration rights or by
issuing a final decision with Board appeal rights is a matter within OPM’s
discretion. See 5 C.F.R. §§ 841.305-.307. However, in either case, if the
appellant is dissatisfied with OPM’s final decision or if OPM fails to issue an
appealable final decision within 90 days of the date of this order, the appellant
may file a new Board appeal with the appropriate regional office. Any future
appeal must be filed within the time limits set forth in the Board’s regulations.
See 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Coleman_VelettaDA-0841-23-0038-I-1_Final_Order.pdf | 2024-03-06 | VELETTA C. COLEMAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-23-0038-I-1, March 6, 2024 | DA-0841-23-0038-I-1 | NP |
2,171 | https://www.mspb.gov/decisions/nonprecedential/Cooper_Deana_S_DC-844E-21-0235-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEANA S. COOPER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-21-0235-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deana S. Cooper , Washington, D.C., pro se.
Jo Antonette Bell , 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 for failure to prosecute her appeal of a reconsideration decision issued
by the Office of Personnel Management denying her disability retirement
application. The appellant argues for the first time on review that she first saw
the administrative judge’s April 29, 2021 order to submit prehearing submissions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appear at the prehearing conference on June 2, 2021. Petition for Review
(PFR) File, Tab 1 at 8. She also asserts for the first time on review that she
received a COVID -19 vaccine on April 29, 2021, which affected her ability to
respond. Id. She provided evidence that she received a vaccine on that date. Id.
at 9-13. 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 Board will not consider the appellant’s new evidence and argument
that the COVID -19 vaccine affected her ability to respond to the administrative
judge’s order. 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 vaccine
documentation on which the appellant relies reflects that she scheduled her
appointment on April 27, 2021, and received the vaccine on April 29, 2021. PFR
File, Tab 1 at 9-13. The appellant does not explain why she did not provide this
information below, in response to the May 26, 2021 order to show cause. Id. at 8.
Therefore, the appellant has failed to establish either that the information is new2
or that she exercised due diligence to locate it. See 5 C.F.R. § 1201.115(d)
(explaining that, to constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been new).
As to the appellant’s assertion that she only received the administrative
judge’s April 29, 2021 order the day before the initial decision was issued, the
appellant, as an e -filer, is deemed to have received the April 29, 2021 order on
the same day. See Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3
(2014) (explaining that e-filers are deemed to have received documents on the
date of electronic submission); 5 C.F.R. § 1201.14(m) (2021) (same). Further, as
an e-filer, she was responsible for actively monitoring her case in the Board’s
e-Appeal system to ensure she received case-related documents. Mills v. U.S.
Postal Service, 119 M.S.P.R. 482, ¶ 6 (2013); 5 C.F.R. § 1201.14(j)(3) (2021).
Therefore, the fact that the appellant had only “just seen” the notice of hearing on
June 2, 2021, the day before the initial decision was issued, does not change the
fact that the effective date of service was April 29, 2021. PFR File, Tab 1 at 8.
Moreover, she participated in the telephonic status conference during which she
agreed to the deadline to file her prehearing submissions and the date to attend
the prehearing conference. IAF, Tab 12 at 2-3, 5. She thus had actual notice of
the deadlines well before they arose, and even if the Board were to consider the
appellant’s new evidence and argument on review, it would not provide a basis to
disturb the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any 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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 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 | Cooper_Deana_S_DC-844E-21-0235-I-1__Final_Order.pdf | 2024-03-06 | DEANA S. COOPER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-21-0235-I-1, March 6, 2024 | DC-844E-21-0235-I-1 | NP |
2,172 | https://www.mspb.gov/decisions/nonprecedential/Bassett_AnthonyAT-844E-21-0246-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY BASSETT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-21-0246-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carolyn A. Dragseth , Esquire, Baton Rouge, Louisiana, for the appellant.
Shawna Wheatley , 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
affirmed the final decision of the Office of Personnel Management (OPM),
finding that the appellant’s application for disability retirement benefits under the
Federal Employees’ Retirement System (FERS) was untimely filed. On petition
for review, the appellant argues that he has medical evidence that was unavailable
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
before the close of the record below and which demonstrates that he was mentally
incompetent during the pertinent 1-year period following his January 4, 2019
resignation from Federal service. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that 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. § 8453, an application for disability retirement under FERS
must be filed with an employee’s employing agency before the employee
separates from service or OPM within 1 year after the employee’s separation.
Bruce v. Office of Personnel Management , 119 M.S.P.R. 617, ¶ 7 (2013). The
1-year filing time limit may be waived if the employee is mentally incompetent at
the date of separation or became mentally incompetent within 1 year thereafter
and the application is filed with OPM within 1 year from the date the employee is
restored to competency or is appointed a fiduciary, whichever is earlier. Id. The
appellant has the burden of proving, by preponderant evidence, that he was
mentally incompetent during the relevant filing period. King v. Office of
Personnel Management , 112 M.S.P.R. 522, ¶ 7 (2009). In determining whether
an applicant was mentally incompetent for the purposes of the time limit, the
Board requires medical evidence supporting subjective opinions of mental2
incompetence. Bruce, 119 M.S.P.R. 617, ¶ 7. The definition of mental
incompetence “may be satisfied by [a person] having some minimal capacity to
manage his own affairs, and not needing to be committed;” the applicant need not
show that he was a “raving lunatic continuously.” French v. Office of Personnel
Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987).2
Here, the record reflects that the appellant resigned from Federal service on
January 4, 2019, and that OPM received his application for disability retirement
benefits under FERS on June 15, 2020, well outside the 1-year filing period.
Bassett v. Office of Personnel Management , MSPB Docket No. AT-844E-21-
0246-I-1, Initial Appeal File (IAF), Tab 9 at 33-40, 44. Thus, the issue in this
case is whether the appellant showed that he was mentally incompetent during the
period from January 4, 2019, to January 4, 2020. The administrative judge found
that the appellant failed to make a nonfrivolous allegation that he was mentally
incompetent during the relevant period. IAF, Tab 14, Initial Decision (ID) at 5.
The medical evidence the appellant presents on review is not new. Petition
for Review (PFR) File, Tab 1 at 7. Inasmuch as it concerns the relevant period
described above, i.e., January 4, 2019, to January 4, 2020, we note that all of that
period was well before the close of the record below. Moreover, the letter from
the appellant’s primary care provider (PCP) implies that it is at least in part based
on the appellant’s prior medical records, which would also be from before the
close of the record below. Id. To constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed . Grassell v.
Department of Transportation , 40 M.S.P.R. 554, 564 (1989). Nevertheless, even
if we accept the appellant’s stated excuse for failing to present this evidence
2 Although French concerns an individual covered under the Civil Service Retirement
System, not FERS like the appellant in this matter, the holding regarding mental
capacity in French applies here because the language of the two statutes is similar.
Compare 5 U.S.C. § 8337(b), with 5 U.S.C. § 8453; see Bruce, 119 M.S.P.R. 617, ¶ 7
(applying French in a FERS case). 3
below, that the doctor’s letter was delayed by consequences related to COVID-19,
PFR File, Tab 1 at 4, the purportedly new medical evidence is not persuasive in
light of the administrative judge’s findings and the record below.
Specifically, although the appellant’s PCP opined that the appellant was
unable to conduct legal affairs during the relevant period and until August 2020
due to his major depressive disorder, PFR File, Tab 1 at 7, the administrative
judge found, and the evidence indicates, that the appellant was able to participate
in a prior Board appeal against his former employing agency during the relevant
period, ID at 5; see Bassett v. Department of Defense , MSPB Docket No. DC-
0752-20-0125-I-1, Initial Appeal File (0125 IAF). The administrative judge
found that the appellant had been able to manage legal matters pro se during the
relevant period in a sophisticated manner, filing coherent responses to the
administrative judge’s jurisdictional order in his prior appeal.3 ID at 5; 0125 IAF,
Tabs 4, 8. The appellant filed those pleadings in his prior Board appeal on
November 13 and 20, 2019, at nearly the end of the 1-year period following his
January 4, 2019 resignation, during which he now claims mental incompetence.
0125 IAF, Tabs 4, 8; PFR File, Tab 1 at 7.
In his response below, the appellant cited the possibility of obtaining relief
in his Board appeal and EEO action as a reason for delaying his application for
disability retirement benefits. IAF, Tab 12 at 8. The implication inherent in the
possibility of obtaining the relief he sought suggests that he was ready to resume
his position if that litigation were successful. Such a litigation position is
inconsistent with his present assertions of mental incompetence.
Moreover, the medical evidence below, as the administrative judge noted in
the initial decision, described the appellant’s mental health symptoms as mild
during the pertinent time, and the administrative judge found that such mild
mental health symptoms did not rise to the level of a finding that the appellant
3 Documents filed concerning the appellant’s EEO case indicate that he was represented
in that action. IAF, Tab 12 at 9-11. 4
was mentally incompetent. ID at 4-5; IAF, Tab 12 at 17. Although the medical
evidence the appellant submits on review regarding his scores on two tests
indicates that he was experiencing severe symptoms of depression and anxiety,
the PCP conducted these tests on February 7, 2020, which is outside the relevant
year following the appellant’s separation described above. PFR File, Tab 1 at 7.
Thus, it does not contradict the medical evidence below, which opined that the
appellant’s mental health symptoms, as of March 2019, which was during the
pertinent time period, were mild. IAF, Tab 12 at 17.
Accordingly, the appellant fails to demonstrate that the administrative
judge erred, and we affirm the initial decision which affirmed OPM’s
reconsideration decision finding that the appellant’s application for disability
retirement benefits was untimely filed.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 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 | Bassett_AnthonyAT-844E-21-0246-I-1_Final_Order.pdf | 2024-03-06 | ANTHONY BASSETT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-21-0246-I-1, March 6, 2024 | AT-844E-21-0246-I-1 | NP |
2,173 | https://www.mspb.gov/decisions/nonprecedential/Walker_KathrynDA-315H-21-0075-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHRYN WALKER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-315H-21-0075-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
athryn Walker , Fort Gordon, Georgia, pro se.
Rheanna Felton and Kyle Ray Johnson , Denver, Colorado, 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 for lack of jurisdiction the appeal of her probationary termination. On
petition for review, the appellant argues that the administrative judge erred in her
jurisdictional determination. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 The appellant argues that she met the statutory definition of an employee based on her
prior service and an agency handbook provision regarding probationary periods for
supervisors. Petition for Review (PFR) File, Tab 1 at 5-8. The appellant’s prior service
cannot be counted toward the completion of her probationary period because of the
significant time period between the appellant’s prior service and the appointment from
which she was terminated at issue in this appeal. Henderson v. Department of the
Treasury, 114 M.S.P.R. 149, ¶ 15 (2010); McCrary v. Department of the Army ,
103 M.S.P.R. 266, ¶ 8 (2006); see Hurston v. Department of the Army , 113 M.S.P.R. 34,
¶ 10 (2010). In addition, it appears that the appellant was terminated from her prior
Federal position during a probationary period, and in such circumstances, the prior
service cannot be considered in determining whether an individual completed a current
probationary period. 5 C.F.R. § 315.906(d). Regarding the agency handbook provision
referenced by the appellant, it applies to individuals serving as a Federal supervisor
prior to 1979, and there is nothing in the record to suggest that the appellant was in
such a position. Initial Appeal File (IAF), Tab 10 at 46. Finally, regarding the
appellant’s assertion that she was terminated for preappointment reasons, PFR File,
Tab 1 at 8, the letter terminating the appellant stated that it was based on conduct
unbecoming a supervisor, not events that occurred prior to the appellant’s appointment,
IAF, Tab 11 at 21.2
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 | Walker_KathrynDA-315H-21-0075-I-1_Final_Order.pdf | 2024-03-06 | KATHRYN WALKER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-315H-21-0075-I-1, March 6, 2024 | DA-315H-21-0075-I-1 | NP |
2,174 | https://www.mspb.gov/decisions/nonprecedential/Ibrahim_LaSaundra_AT-3443-21-0187-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LASAUNDRA IBRAHIM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-21-0187-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
LaSaundra Ibrahim , Opelika, Alabama, pro se.
Karla Brown Dolby , Decatur, Georgia, for the agency.
Karen Rodgers , Montgomery, Alabama, 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 nonselection appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 argues on review that the administrative judge incorrectly
framed her appeal as a challenge to her nonselection for a Vendor Relations
position. Petition for Review File, Tab 1 at 1. The appellant argues that, instead,
she is challenging the agency’s incorrect scoring of her application for the
position in question. Id. We find that the appellant’s argument lacks merit. As
the administrative judge correctly found, a nonselection is generally not directly
appealable to the Board. Initial Appeal File (IAF), Tab 7, Initial Decision (ID)
at 3; see Masselli v. Department of the Army , 105 M.S.P.R. 79, ¶ 4 (2007). Even
if the appellant could show that the agency improperly scored her application, the
Board nonetheless lacks statutory or regulatory authority over any improprieties
or irregularities in the procedures resulting in the nonselection. See Masselli,
105 M.S.P.R. 79, ¶ 4. As the administrative judge found, the appellant has failed
to raise a nonfrivolous allegation of jurisdiction over her appeal.2 ID at 3-4.
2 The administrative judge explained the exceptions to the general rule that the Board
lacks jurisdiction over nonselections. IAF, Tab 4 at 1-5; ID at 3-4. We agree with the
administrative judge that the appellant has failed to make a nonfrivolous allegation of
jurisdiction under any such exception. For example, the appellant has not alleged that
she is a preference eligible or a veteran or that she made a whistleblowing disclosure or
engaged in a protected activity. See e.g., Agoranos v. Department of Justice ,2
Moreover, the administrative judge correctly found that, to the extent the
appellant is alleging that the agency engaged in a prohibited personnel practice by
incorrectly scoring her application, the Board lacks jurisdiction over any such
allegation in the absence of an otherwise appealable action. ID at 4; see Wren v.
Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871 -73
(D.C. Cir. 1982) (finding that prohibited personnel practices are not an
independent source of Board jurisdiction).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
119 M.S.P.R. 498, ¶ 24 (2013) (considering the appellant’s nonselection in his
whistleblower retaliation appeal); Masselli, 105 M.S.P.R. 79, ¶ 5 (noting that the Board
may have jurisdiction over a nonselection when the appellant alleged it violated his
veterans’ preference rights).
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 | Ibrahim_LaSaundra_AT-3443-21-0187-I-1__Final_Order.pdf | 2024-03-06 | LASAUNDRA IBRAHIM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-21-0187-I-1, March 6, 2024 | AT-3443-21-0187-I-1 | NP |
2,175 | https://www.mspb.gov/decisions/nonprecedential/Schulte_Carl_SF-0752-19-0567-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL SCHULTE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-19-0567-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds , Esquire, and Joseph D. Jordan , Esquire, Ponte Vedra
Beach, Florida, for the appellant.
James S. Yu and Stephanie Rogers , Norco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension based on the suspension of his access to
classified information. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In the initial decision, the administrative judge affirmed the agency action
indefinitely suspending the appellant based on a preliminary determination by the
Department of Defense Consolidated Adjudication Facility (DOD CAF) to revoke
the appellant’s eligibility to access classified information and/or assignment to
duties that have been designated national security sensitive. Initial Appeal File
(IAF), Tab 10 at 30-32, Tab 14 at 60-66. After the record closed on petition for
review, the appellant submitted a November 6, 2020 decision from the Personnel
Security Appeals Board stating that it would direct DOD CAF to reinstate the
appellant’s eligibility for access to classified information and/or assignment to
duties that have been designated national security sensitive. Petition for Review
(PFR) File, Tab 6 at 5. Because this argument created questions regarding
whether the indefinite suspension was properly ended, the Office of the Clerk of
the Board issued an order. PFR File, Tab 7; see Rhodes v. Merit Systems
Protection Board , 487 F.3d 1377, 1380 (Fed. Cir. 2007); Freeze v. Department of
the Navy, 122 M.S.P.R. 179, ¶ 10 (2015). In response, the appellant explained
that he had been returned to work effective December 10, 2020. PFR File, Tab 8
at 4-5, 11-12. In its untimely response, which under the circumstances we are2
considering,2 the agency explains that it canceled the appellant’s indefinite
suspension and restored him to a pay status effective November 6, 2020, and
restored him to duty in December 2020.
At no point has the appellant argued that the agency improperly failed to
end his indefinite suspension. Moreover, the agency’s submission in response to
the order shows that the agency promptly canceled the indefinite suspension and
restored the appellant to a pay status. Thus, we decline to consider further
whether the agency properly ended the indefinite suspension.
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 In its September 8, 2021 response to the Office of the Clerk of the Board’s March 16,
2021 Order, the agency explains that it received the order by mail on August 27, 2021,
“for reasons unknown.” PFR File, Tab 10 at 4. The current agency representative
seems to imply that he believed that the previous agency representative had registered
as an e-filer. Id. Although the agency’s previous representatives were registered as
e-filers at one point, one of the representatives elected to receive documents by mail,
and under the Board’s regulations, “[w]hen a party has more than one representative,
however, all representatives must choose the same method of service.” 5 C.F.R.
§ 1201.14(e)(3) (2021). The notice of termination of e-filer status informed the
individual who withdrew his e-filer status that he was also withdrawing that status of all
of the agency representatives. IAF, Tab 29 at 2. Because the agency submission is not
relevant to the matter that is the gravamen of this appeal and only supports a finding
that the agency properly ended the indefinite suspension, a matter never raised by the
appellant, we have considered the submission in deciding not to raise the new issue of
whether the suspension was properly ended. Cf. Ney v. Department of Commerce ,
115 M.S.P.R. 204, ¶ 7 (2010) (finding that a question of the Board’s jurisdiction can be
raised at any time).
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.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. 115-195,6
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 | Schulte_Carl_SF-0752-19-0567-I-1__Final_Order.pdf | 2024-03-06 | CARL SCHULTE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-19-0567-I-1, March 6, 2024 | SF-0752-19-0567-I-1 | NP |
2,176 | https://www.mspb.gov/decisions/nonprecedential/Mertens_Kevin_P_PH-0752-21-0092-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN P. MERTENS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-21-0092-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin P. Mertens , Roseburg, Oregon, pro se.
Colleen M. Shook , Norfolk, 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 without prejudice to refiling his appeal of the agency’s removal action .
On petition for review, the appellant challenges the administrative judge’s rulings
on discovery matters and his affirmative defenses, questions the accuracy of
conference summary orders, accuses the administrative judge of bias, and
requests that his appeal be transferred to another administrative judge. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review.
In a February 18, 2021 pleading, the appellant requested that his appeal be
dismissed without prejudice, stating that he required additional time to prosecute
his appeal due to delays caused by the ongoing COVID-19 pandemic. Initial
Appeal File (IAF), Tab 21 at 6. After convening a recorded telephonic
conference to address the appellant’s motion, the administrative judge issued an
initial decision dismissing the appeal without prejudice to refiling, concluding
that, consistent with the appellant’s request, dismissal was appropriate to
“facilitate efficient litigation of the appeal, conserve resources, and to avoid a
lengthy continuance.” IAF, Tab 28, Initial Decision (ID) at 1-2 see IAF,
Tabs 26-27. The administrative judge informed the appellant that he must refile
the appeal “by no later than August 30, 2021, but no sooner than May 4, 2021
– which is the date after which this decision becomes final. ” ID at 2 (emphasis
in original). The appellant timely filed a petition for review on April 27, 2021, in
which he challenges the administrative judge’s prior rulings on discovery matters
and his affirmative defenses, questions the accuracy of her conference summary
orders, accuses her of bias, and requests that she be disqualified and the case be
reassigned to a new administrative judge in the Western Regional Office.2
Petition for Review (PFR) File, Tab 1 at 2-17. The agency has filed a response
requesting that the petition for review be denied, noting that the appellant is not
challenging the administrative judge’s decision to dismiss without prejudice the
appeal and is instead challenging her prior rulings and arguing that his dismissal
request should have been granted earlier . PFR File, Tab 3 at 6-7. The agency
also argues that the Board should treat the appellant’s timely petition for review
as a timely filed petition for appeal. Id. at 7-8; see Desmond v. Department of
Veterans Affairs , 90 M.S.P.R. 301, ¶¶ 6-7 (2001).
An administrative judge has wide discretion to control the proceedings
before her, and a dismissal without prejudice to refiling is a procedural option left
to her sound discretion. Desmond, 90 M.S.P.R. 301, ¶ 4. We have reviewed the
record, including the telephonic status conference recording, and have not found
any evidence that the administrative judge abused her discretion in dismissing the
appeal without prejudice. Instead, she exercised her sound discretion in the
interest of efficiency to allow the parties to resolve their ongoing discovery issues
and to afford the appellant with additional time to prepare his case in light of
delays caused by the ongoing COVID-19 pandemic. ID at 1-2; see IAF, Tab 27
at 1-3. We find that this is a proper use of her discretion, and we will not disturb
the initial decision here.
We further decline to address the appellant’s remaining arguments on
review. See Lewis v. Department of the Air Force , 69 M.S.P.R. 40, 44 (1995)
(stating that if an appeal has been dismissed without prejudice in an initial
decision and the appellant then files a petition for review of that decision, the
Board will not consider arguments raised on review concerning discovery
disputes or other matters that should be considered by the administrative judge
once the appeal has been refiled). Because the Board treats an appellant’s timely
petition for review of an initial decision dismissing the appeal without prejudice
as a timely refiled petition for appeal, Desmond, 90 M.S.P.R. 301, ¶ 6, the
appellant may present his assertions regarding continuing discovery disputes, the3
scope of his affirmative defense claims, and any other claims to the
administrative judge, id. Accordingly, we deny the petition for review, and we
forward this case to the New York Field Office for adjudication on the merits.
This is the final decision of the Merit Systems Protection Board regarding the
initial decision dismissing the appeal without prejudice to refiling. 5 C.F.R.
§ 1201.113.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Mertens_Kevin_P_PH-0752-21-0092-I-1__Final_Order.pdf | 2024-03-06 | KEVIN P. MERTENS v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-21-0092-I-1, March 6, 2024 | PH-0752-21-0092-I-1 | NP |
2,177 | https://www.mspb.gov/decisions/nonprecedential/Dominguez_Jerry_P_SF-0752-20-0540-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY P. DOMINGUEZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0540-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ianna Richardson , Esquire and Shaun Southworth , Atlanta, Georgia, for the
appellant.
Tony J. Miller , Esquire, Camp Pendleton, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in sustaining three of the charges, reasserts his
affirmative defenses of reprisal for alleged equal employment opportunity (EEO)
activity and whistleblowing, and reasserts that the penalty of removal was not
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasonable. 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
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the basis of the appellant’s reprisal claim concerning a
harassment complaint and to provide the appropriate standard in analyzing that
claim, we AFFIRM the initial decision.
We discern no error in the administrative judge’s findings that the agency
proved three of the four charges at issue in this appeal and that the penalty of
removal promotes the efficiency of the service and was reasonable. Initial
Appeal File (IAF), Tab 32, Initial Decision (ID) at 3-18, 24-29. We also discern
no error in her finding that the appellant failed to prove an affirmative defense of
whistleblower reprisal. ID at 22-24. Although we ultimately agree with the
administrative judge’s conclusion that the appellant failed to prove that his
removal was in reprisal for filing a harassment complaint with the EEO office on
October 30, 2019, we clarify here the nature of the appellant’s claim and the
appropriate standard by which to analyze that claim.
Below, the appellant asserted that he was retaliated against for protected
EEO activity—namely, for filing a harassment complaint on October 30, 2019,
with the EEO office.2 IAF, Tab 19 at 4. To analyze this claim, the administrative
judge relied on the legal standard set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 51 (2015), which provides that, when an appellant asserts
discrimination or retaliation under 42 U.S.C. § 2000e-16, he must show that the
prohibited consideration was a motivating factor in the contested personnel
action. ID at 19. The administrative judge later correctly observed, however,
that the appellant’s harassment complaint on which his reprisal claim is based
was explicitly not alleging that he was harassed on the basis of a protected
category covered under the discrimination laws, such as race, sex, religion, age,
or disability. ID at 20; IAF, Tab 21 at 54. Because the appellant’s harassment
complaint was not so based, we modify the initial decision to find that his claim
should be construed as one of general reprisal. See, e.g., Mattison v. Department
of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016) (applying the Warren standard
to the appellant’s affirmative defense of retaliation for filing appeals arising
under 5 U.S.C. § 2302(b)(9)(A)(ii), in which he did not allege, among other
things, reprisal for equal employment opportunity activity protected under title
VII). To prove a claim of general reprisal, the appellant must show by
preponderant evidence that: (1) he engaged in protected activity; (2) the accused
official knew of the protected activity; (3) the adverse employment action under
review could, under the circumstances, have been retaliation; and (4) there was a
genuine nexus between the retaliation and the adverse employment action.
See Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986);
Mattison, 123 M.S.P.R. 492, ¶ 8; Cloonan v. U.S. Postal Service , 65 M.S.P.R. 1,
4 (1994).
In applying this standard, we rely on the administrative judge’s assessment
of the relevant evidence. In the initial decision, the administrative judge
2 The appellant also asserted that he filed an EEO complaint, IAF, Tab 19 at 4, but as
the administrative judge correctly observed, there is no EEO complaint in the record, ID
at 19, and a representative from the agency’s EEO office submitted a statement that
there is no EEO complaint by the appellant on record, IAF, Tab 9 at 20.
correctly observed that there was no evidence that anybody responsible for the
removal decision referenced the harassment complaint and that there was no
circumstantial evidence supporting an inference of retaliation, “other than the
appellant had talked to the EEO counselor when his removal was proposed and
decided.” ID at 22. The administrative judge considered that the appellant’s
supervisor, who was also the proposing official, may have been aware of the
complaint, but found nothing suspicious in this knowledge, particularly because
the supervisor began documenting for human resources the basis of the
disciplinary action in June or July of 2019—well before the appellant filed the
October 30, 2019 harassment complaint and well before the appellant told his
supervisor that he had gone to an EEO counselor. Id. at 21-22. The
administrative judge also considered that the deciding official was aware of the
harassment complaint but emphasized that he was unaware of the content of the
complaint. ID at 22. She ultimately concluded that the appellant failed to present
any evidence “that the agency took this removal action in retaliation for the
appellant going to an EEO counselor and complaining about the workplace.” Id.
We conclude that the findings in the initial decision are sound and
accurately reflect the record evidence.3 We further find that, even though the
deciding official and the appellant’s supervisor—also the proposing official—
knew of the harassment complaint, the appellant has failed to show that his
3 We have considered the appellant’s argument on review that when he raised his
concern about harassment with his supervisor, the supervisor responded “in a retaliatory
manner” stating that he “was not going anywhere.” PFR File, Tab 1 at 8. The appellant
asserts that this response “is close to direct evidence of retaliation because it is a
threat.” Id. We disagree. The appellant’s interpretation of his supervisor’s alleged
statement is nothing more than speculation as to the supervisor’s motives. The
statement does not include any threat and, on its face, suggests only that the supervisor
did not intend to leave the agency due to the appellant’s harassment complaint. Thus,
the appellant’s argument on review does not constitute a basis to disturb the ultimate
finding in the initial decision that the appellant failed to establish this affirmative
defense. See Duncan v. Department of the Air Force , 115 M.S.P.R. 275, ¶ 9 (2010)
(finding that an appellant’s speculation did not rise to the level of preponderant
evidence), aff’d, 674 F.3d 1359 (Fed. Cir. 2012).
removal could, under the circumstances, have been retaliation or that there was
any genuine nexus between the retaliation and the removal action.
See Mattison, 123 M.S.P.R. 492, ¶ 8. Accordingly, we agree with the
administrative judge that the appellant failed to establish this affirmative defense.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Dominguez_Jerry_P_SF-0752-20-0540-I-1__Final_Order.pdf | 2024-03-06 | JERRY P. DOMINGUEZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0540-I-1, March 6, 2024 | SF-0752-20-0540-I-1 | NP |
2,178 | https://www.mspb.gov/decisions/nonprecedential/Evans_John_D_CH-1221-21-0442-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DWIGHT EVANS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
CH-1221-21-0442-W-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Dwight Evans , Bloomington, Illinois, pro se.
Patricia Reddy-Parkinson , Esquire, 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 individual right of action appeal for lack of jurisdiction .
On petition for review, the appellant argues the merits of the underlying
personnel action and generally disagrees with the administrative judge’s findings
that he failed to establish that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in his eligibility determination or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
nonselection decision. Petition for Review (PFR) File, Tab 1 at 5-7. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review.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
2 Following the close of the record on review, the appellant filed a motion for leave to
submit a letter from agency personnel relating to his “qualifications for the GS-1740
series.” PFR File, Tab 7 at 4-5. This evidence pertains to the merits of his eligibility
determination and nonselection decision, rather than the Board’s jurisdiction over the
appeal. Because the contents of his motion are immaterial to the dispositive issue in
this appeal, we DENY his motion.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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 | Evans_John_D_CH-1221-21-0442-W-1 Final Order.pdf | 2024-03-06 | JOHN DWIGHT EVANS v. DEPARTMENT OF THE NAVY, MSPB Docket No. CH-1221-21-0442-W-1, March 6, 2024 | CH-1221-21-0442-W-1 | NP |
2,179 | https://www.mspb.gov/decisions/nonprecedential/Williams_MoniqueSF-0752-21-0395-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONIQUE WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-21-0395-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crista Kraics , Esquire, Stafford, Virginia, for the appellant.
Douglas Frison , APO, APO/FPO Pacific, 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. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
The appellant alleges on review that the administrative judge failed to
properly consider her allegations in her affidavit regarding the union official’s
purported misinformation. Petition for Review (PFR) File, Tab 1 at 5. However,
the administrative judge primarily relied on the appellant’s affidavit in
determining whether the appellant made a nonfrivolous allegation of jurisdiction.
As the administrative judge noted, the appellant failed to identify any misleading
statements attributable to the agency which led to her resignation. Initial Appeal
File (IAF), Tab 8, Initial Decision (ID) at 8-9. It must be the agency’s improper
action, i.e., the supplying of misinformation, which deprived the appellant of her
choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 9 (2013). The union
representative was not a representative of the agency, and thus, the union
representative’s misleading statements cannot be attributed to the agency. Green
v. Department of Veterans Affairs , 112 M.S.P.R. 59, ¶ 9 (2009). The
administrative judge properly found that the appellant failed to nonfrivolously
allege that her resignation was involuntary as a result of the union
representative’s statements. ID at 7-9; see Bean, 120 M.S.P.R. 397, ¶¶ 8-9;
Green, 112 M.S.P.R. 59, ¶ 9.
The appellant asserts on review that the administrative judge improperly
relied on the agency file in support of her finding of a lack of jurisdiction, thus,
3
depriving her of the opportunity to challenge the evidence showing that the
removal decision came after a lengthy investigation and ample notice of the basis
for the agency’s proposed removal. PFR File, Tab 1 at 4. We recognize that the
administrative judge discussed some evidence in the record, despite the question
before her being one of jurisdiction. After the initial decision was issued, in
Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir.
2020), the U.S. Court of Appeals for the Federal Circuit cautioned that, when
evaluating Board jurisdiction, the Board may not deny jurisdiction by crediting
the agency’s interpretation of the evidence. However, the Board need not
consider the appellant’s allegations “in a vacuum,” and may consider sources
such as “matters incorporated by reference or integral to the claim, items subject
to judicial notice, [and] matters of public record.” Id. at 1369 n.5.
In her analysis, the administrative judge relied on the evidence in the
agency file to provide factual background information and establish the
chronology of events leading up to the appellant’s removal. The administrative
judge did not weigh the evidence or credit the agency’s interpretation of the
evidence. The appellant did not allege that the timeline was incorrect and, as
noted above, she provided an affidavit describing the circumstances surrounding
her removal which is consistent with the evidence in the agency’s file. IAF,
Tab 6 at 10. Thus, we discern no error in the administrative judge’s consideration
of this evidence for the limited purpose of determining whether the appellant
made allegations showing that a reasonable employee faced with the same
circumstances would feel coerced into resigning.
Regarding the appellant’s remaining arguments, we find that they provide
no basis to disturb the initial decision. Thus, we affirm the initial decision, which
dismissed the appeal for lack of jurisdiction.
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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Williams_MoniqueSF-0752-21-0395-I-1 Final Order.pdf | 2024-03-06 | MONIQUE WILLIAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-21-0395-I-1, March 6, 2024 | SF-0752-21-0395-I-1 | NP |
2,180 | https://www.mspb.gov/decisions/nonprecedential/Eberwein_MartinCH-1221-21-0154-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN EBERWEIN,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
CH-1221-21-0154-W-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martin Eberwein , Kenton, Ohio, pro se.
David M. Brown , 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 individual right of action appeal for lack of jurisdiction because he
failed to make a nonfrivolous allegation that he made a protected disclosure under
5 U.S.C. § 2302(b)(8). On petition for review, the appellant states that the
agency made “grave mistakes” but provides no substantive details about his
allegations. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 reviewed this case in light of the decision by the U.S. Court of Appeals
for the Federal Circuit in Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1369 (Fed. Cir. 2020) to ensure that the determination that the appellant
failed to make a nonfrivolous allegation was “based on whether the employee
alleged sufficient factual matter, accepted as true, to state a claim that is plausible
on its face.” Vague, conclusory, and unsupported allegations do not satisfy the
Board’s nonfrivolous pleading standard. Rebstock Consolidation v. Department
of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015); see Graves v. Department
of Veterans Affairs , 123 M.S.P.R. 434, ¶ 9 (2016) (finding that the appellant’s
conclusory assertions, without any further details, was insufficient to meet a
nonfrivolous standard).
Both below and on review, the appellant provided only vague and
conclusory allegations of agency wrongdoing. Initial Appeal File (IAF), Tab 7
at 3, Tab 10 at 3; Petition for Review File, Tab 1 at 3. The most detailed account
of the appellant’s allegations in the record is from the Office of Special Counsel,
which summarized the appellant’s allegations in its closeout letter as reporting
3
the “use of improper management practices, including the failure to employ
procedures and the failure to provide required training” and reporting “that
management used data in the 2020 Census in complete disregard for public health
and safety.” IAF, Tab 1 at 6. However, the appellant does not explain what
procedures the agency failed to employ, what training was not provided, or how
management disregarded public health and safety.
The appellant expressed his difficulty in providing a response, essentially
saying that he did not know how to do so. However, the administrative judge
issued a detailed and comprehensive jurisdictional order setting forth the
appropriate legal standards, and included a section that directed the appellant to
provide specific information regarding his allegations. IAF, Tab 3. The appellant
did not provide these requested details, despite having notice and opportunity to
do so. Accordingly, we agree with the administrative judge that he failed to
establish a nonfrivolous allegation that he made a protected disclosure under
5 U.S.C. § 2302(b)(8). IAF, Tab 11, Initial Decision at 5-7. Thus, the appeal was
properly dismissed 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
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. | Eberwein_MartinCH-1221-21-0154-W-1 Final Order.pdf | 2024-03-06 | MARTIN EBERWEIN v. DEPARTMENT OF COMMERCE, MSPB Docket No. CH-1221-21-0154-W-1, March 6, 2024 | CH-1221-21-0154-W-1 | NP |
2,181 | https://www.mspb.gov/decisions/nonprecedential/Love__Benjamin_E_DC-0752-20-0130-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN E. LOVE,
Appellant,
v.
U.S. AGENCY FOR GLOBAL
MEDIA,1
Agency.DOCKET NUMBER
DC-0752-20-0130-I-1
DATE: March 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
B
enjamin E. Love , Huntingtown, Maryland, pro se.
Jessie James, Jr. , 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 alleged involuntary retirement appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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).
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 repeats many of his arguments regarding his
reassignments to supervisory positions. Petition for Review (PFR) File, Tab 1
at 4-6, Tab 4 at 9-10; Initial Appeal File, Tab 1 at 5-8, 10-11. He raises new
arguments for the first time on review, as follows: (1) he argues the agency
breached a 1999 U.S. district court settlement agreement unrelated to his
retirement; (2) he requests “a review and hearing” on his April 2017
reassignment, which he characterizes as the “initial illegal, deliberate and
prohibited personnel action after [he] declined an offer to become a [s]upervisor”;
(3) he asserts that he had “not had a performance appraisal for 13 years prior” to
his retirement; and (4) he alleges that he had been subject to a hostile work
environment since 2012. PFR File, Tab 1 at 4-5, Tab 4 at 6. The appellant also
submits new evidence for the first time on review, namely the position
description from a position that he occupied prior to his April 2017 reassignment,
a 2012 Standard Form 50 reflecting his tenure in that position, and a Standard
Form 52 request for personnel action concerning his April 2017 reassignment.
PFR File, Tab 1 at 12-24.2
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). However, we
have considered the appellant’s new argument and evidence to the extent it
concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can
be raised at any time, including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5
(considering evidence submitted for the first time on review because it was
relevant to the Board’s jurisdiction). Even considering these arguments, we find
that they do not provide a basis to find that the appellant nonfrivolously alleged3
Board jurisdiction over his retirement. Accordingly, we deny the petition for
review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Love__Benjamin_E_DC-0752-20-0130-I-1_Final_Order.pdf | 2024-03-06 | null | DC-0752-20-0130-I-1 | NP |
2,182 | https://www.mspb.gov/decisions/nonprecedential/Argoncillo_Teresa_C_SF-0752-21-0533-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERESA C. ARGONCILLO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-21-0533-I-1
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Teresa C. Argoncillo , San Jose, California, pro se.
Glen E. Woodworth , Esquire, Anchorage, 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 her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant does not challenge the initial decision and
instead provides copies of two Standard Form 50s that were in the record below
and the initial decision. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,2
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).
2 Although the appellant was a non-preference eligible appointed to the excepted
service, the administrative judge’s acknowledgment order provided the jurisdictional
notice applicable to individuals in the competitive service. Initial Appeal File (IAF),
Tab 3. However, the administrative judge later provided the jurisdictional notice
applicable to individuals in the excepted service. IAF, Tab 5. Further, the initial
decision cured the defective notice by correctly informing the appellant of what she
must do to establish jurisdiction as a non-preference eligible “employee” in
the excepted service and affording her an opportunity to establish jurisdiction on
review, which she has not done. IAF, Tab 10, Initial Decision at 3-4; see Parker v.
Department of Housing & Urban Development , 106 M.S.P.R. 329, ¶ 8 (2007)
(explaining that an administrative judge’s failure to provide an appellant with
proper jurisdictional notice may be cured if the agency’s pleadings contain the notice
that was lacking in the acknowledgment order or later show-cause orders or if the initial
decision itself puts the appellant on notice of what he must do to establish jurisdiction).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Argoncillo_Teresa_C_SF-0752-21-0533-I-1 Final Order.pdf | 2024-03-05 | TERESA C. ARGONCILLO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-21-0533-I-1, March 5, 2024 | SF-0752-21-0533-I-1 | NP |
2,183 | https://www.mspb.gov/decisions/nonprecedential/Dagdagan_Macario_DC-1221-21-0435-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MACARIO DAGDAGAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-21-0435-W-1
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse L. Kelly, II , Esquire, Atlanta, Georgia, for the appellant.
David H. Roberts , Esquire, APO, Armed Forces Europe, 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 appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant argues on review that, contrary to the administrative judge’s
finding, he engaged in protected activity when he filed an equal employment
opportunity (EEO) complaint and that his EEO complaint concerned remedying
an alleged violation under 5 U.S.C. § 2302(b)(9)(A)(i) . Petition for Review
(PFR) File, Tab 1 at 6. We disagree. The appellant specifically notes that in
filing an EEO complaint, he was seeking to remedy purported reprisal for matters
covered by Title VII. PFR File, Tab 1 at 6. The U.S. Court of Appeals for the
Federal Circuit has held that an allegation of retaliation for exercising a Title VII
right does not fall within the scope of an IRA appeal. Young v. Merit Systems
Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020).
The appellant also notes that he provided a letter from the Office of Special
Counsel (OSC) describing several personnel actions and that he had not
abandoned any of those claims. PFR File, Tab 1 at 6. In Marshall v. Department
of the Navy, 81 M.S.P.R. 305, ¶ 5 n.1 (1999), the Board observed that the
appellant had waived potential personnel actions where he referenced them in
a chronology of events but omitted them from the list of actions he wished to
appeal. Similarly, in this case, the appellant referenced several alleged personnel
actions in a chronology of events presented to OSC, Initial Appeal File (IAF),
Tab 8 at 11-12, but he did not identify any actions, except the agency’s decision2
to decertify him from the Personnel Reliability Program, as ones that he wished to
appeal to the Board, id. at 6-8. Thus, the administrative judge properly found that
the appellant abandoned the other alleged personnel actions despite having
exhausted them before OSC. IAF, Tab 10, Initial Decision at 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).
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.
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
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 | Dagdagan_Macario_DC-1221-21-0435-W-1 Final Order.pdf | 2024-03-05 | MACARIO DAGDAGAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-21-0435-W-1, March 5, 2024 | DC-1221-21-0435-W-1 | NP |
2,184 | https://www.mspb.gov/decisions/nonprecedential/Gonzales_Teresa_SF-0752-22-0066-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERESA GONZALES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-22-0066-I-1
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert E. Lum , Brooklyn, New York, for the appellant.
Keith L. Reid , Esquire, Virginia Beach, Virginia, for the appellant.
Bobbi K. Mihal , 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
sustained the appellant’s removal from her position as a Supervisor Customer
Services with the agency . 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).
On review, the appellant argues that the administrative judge erred in
crediting the testimony of other witnesses over the testimony of the appellant,
and she reraises her arguments of due process violations by the agency in
conducting its investigation. Petition for Review (PFR) File, Tab 1 at 5-11.
We find that the administrative judge’s findings are well reasoned, supported by
the record, and in accordance with the law. Initial Appeal File (IAF), Tab 32,
Initial Decision. Accordingly, we discern no basis to disturb them. See Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the
Board may overturn an administrative judge’s demeanor-based credibility
findings only when it has “sufficiently sound” reasons for doing so); Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (declining to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant also appears to raise a new argument of prohibited personnel
practices in violation of 5 U.S.C. § 2302(b)(8), (b)(9), and (b)(10). PFR File,
Tab 1 at 4. We decline to consider any argument or evidence that she submits for2
the first time on review because she has failed to show that it was unavailable,
despite her due diligence, when the record closed. See Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212, ¶ 7 (2006); 5 C.F.R. § 1201.115(d).
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 | Gonzales_Teresa_SF-0752-22-0066-I-1_Final_Order.pdf | 2024-03-05 | TERESA GONZALES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-22-0066-I-1, March 5, 2024 | SF-0752-22-0066-I-1 | NP |
2,185 | https://www.mspb.gov/decisions/nonprecedential/Lapp_Christopher_J_SF-0752-18-0809-I-5_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER J. LAPP,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-18-0809-I-5
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Lauren Renaud , 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
affirmed his removal based on several sustained charges . On petition for review,
the appellant challenges the administrative judge’s decision to sustain the charges
against him, except for charge five, misuse of a weapon/safety violation (Offense
Code 5.13). Lapp v. Department of Justice , MSPB Docket No. SF-0752-18-0809-
I-5, Petition for Review (PFR) File, Tab 3. He also argues that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
condoned his violations of the Emergency Protective Order (EPO) and that the
removal penalty should be mitigated. Id. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to discuss condonation as a mitigating factor, we AFFIRM the initial
decision.
In his petition for review, the appellant contends that agency officials
condoned his actions that violated the EPO, which comprised one of the two
specifications of charge two (Offense Code 4.8, other misdemeanors). PFR File,
Tab 3 at 27-28. The appellant cites to Pelletier v. Department of the Air Force ,
25 M.S.P.R. 411 (1984), to support his argument, and he asserts that the agency’s
condonation of his actions “weighs heavily in mitigating any possible conclusion
[regarding] this allegation.” PFR File, Tab 3 at 28.
The Board typically evaluates condonation as a mitigating factor in the
penalty determination, not as a basis to find that the charge was unproven. See,
e.g., Wells v. Department of Defense , 53 M.S.P.R. 637, 643-45 (1992) (noting
that the appellant’s admission was proof of misconduct sufficient to sustain the
charge of disregarding a regulation or directive and the actions of his supervisors
in condoning his disregard of the timekeeping regulations were significant2
mitigating factors); Pelletier, 25 M.S.P.R. at 418-19 (mitigating the removal
penalty to a demotion to a nonsupervisory position because, among other things,
the agency condoned some practices with which Mr. Pelletier was charged); see
also Herrera-Martinez v. Social Security Administration , 84 M.S.P.R. 426, ¶ 16
(1999) (noting that although condonation may be a mitigating factor, the Board
has not always found that condonation warrants mitigation). Consistent with this
case law, we have not considered condonation in our assessment of whether the
agency proved the specification of violating the EPO and charge two. We affirm
the administrative judge’s decision to sustain the specification and charge in this
regard.
However, we supplement the initial decision to consider agency
condonation in our penalty analysis. Even if we consider as a mitigating factor
the agency’s condonation of the appellant’s violations of the EPO, such
condonation applies only to one specification of one charge. Any agency
condonation does not relate to, let alone outweigh, the serious nature of the other
sustained charges, including lack of candor under oath. Accordingly, we do not
find that condonation warrants mitigation of the penalty under the circumstances.
Herrera-Martinez , 84 M.S.P.R. 426, ¶ 16. We affirm the administrative judge’s
decision to remove the appellant for the sustained misconduct.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 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 | Lapp_Christopher_J_SF-0752-18-0809-I-5_Final_Order.pdf | 2024-03-05 | CHRISTOPHER J. LAPP v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-18-0809-I-5, March 5, 2024 | SF-0752-18-0809-I-5 | NP |
2,186 | https://www.mspb.gov/decisions/nonprecedential/Pomeroy_Norman_DC-0752-18-0526-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NORMAN POMEROY,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DC-0752-18-0526-I-1
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Pamela Simmonds , 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
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The essential undisputed facts as set forth in the initial decision are as
follows. The appellant was formerly employed by the agency as an Intelligence
Research Specialist with the agency’s Office of Intelligence and
Counterintelligence (IN). Initial Appeal File (IAF), Tab 19, Initial Decision (ID)
at 1. As a condition of his employment, he was required to maintain a top secret
security clearance with access to sensitive compartmented information (SCI). ID
at 2. On November 17, 2014, the agency issued the appellant a notice of intent to
revoke his SCI access. ID at 6. The agency afforded the appellant various
internal appeals before the IN Director ultimately notified the appellant of his
decision to revoke the appellant’s SCI access on June 6, 2017. ID at 6-10. On
November 8, 2017, the agency proposed the appellant’s removal based on a
charge of failure to maintain SCI access as required by his position. ID at 10.
After affording the appellant an opportunity to respond to the proposal notice, on
April 4, 2018, the agency issued a decision removing the appellant from service.
ID at 10-11.
The appellant filed a Board appeal in which he raised an affirmative
defense of harmful procedural error based on the agency’s alleged failure to
follow its internal policies when revoking his SCI access. IAF, Tab 1. After the2
appellant withdrew his request for a hearing, IAF, Tab 10, the administrative
judge issued an initial decision based on the written record, finding that the
agency proved its charge and the appellant failed to prove his affirmative defense
of harmful procedural error, ID at 11-16. She further found that the appellant’s
removal promoted the efficiency of the service. ID at 16-17.
The appellant has filed a petition for review in which he disputes the
administrative judge’s finding that he failed to prove his affirmative defense of
harmful procedural error. Petition for Review (PFR) File, Tab 1. The agency has
opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In an appeal of an adverse action under 5 U.S.C. § 7513 based on the
denial, revocation, or suspension of a security clearance, the Board does not have
authority to review the substance of the underlying security clearance
determination, but may review the following: (1) whether the employee’s
position required a security clearance; (2) whether the security clearance was
denied, revoked, or suspended; and (3) whether the agency followed the
procedures set forth in 5 U.S.C. § 7513. Department of the Navy v. Egan ,
484 U.S. 518, 529-31 (1988); Cheney v. Department of Justice , 479 F.3d 1343,
1352 (Fed. Cir. 2007); Hesse v. Department of State , 217 F.3d 1372, 1376 (Fed.
Cir. 2000). On review, the appellant does not dispute the administrative judge’s
findings that these conditions are satisfied here, and we discern no error in the
administrative judge’s analysis. ID at 12.
Rather, on review the appellant reiterates his argument that the agency
committed harmful procedural error in the security clearance revocation process.
PFR File, Tab 1 at 8-15. He correctly observes that in some cases the Board has
the authority to review such a claim. Id. at 11-12; see Romero v. Department of
Defense, 527 F.3d 1324, 1329 (Fed. Cir. 2008) (holding that the Board may
review whether an agency has complied with its procedures for revoking a3
security clearance, even though it may not review the substance of the revocation
decision). However, in this case, the administrative judge correctly found that the
appellant’s harmful procedural error claims exceed the Board’s review authority.
ID at 15. The appellant’s chief argument is that the agency failed to follow its
Standard Operating Procedures for the Office of Intelligence and
Counterintelligence (SOP) to determine whether his conduct amounted to a
“security infraction” or a “security violation,” which he contends was required to
decide the appropriate disciplinary action to be imposed.2 PFR File, Tab 1
at 8-13. The appellant also claims that the agency improperly applied a
Work Force Discipline policy dated May 14, 2015, issued after the conduct at
issue occurred, which recommends more severe discipline for a single offense of
improper storage of classified materials as compared with the prior version in
effect. Id. at 10-11. In essence, these arguments amount to the appellant’s
disagreement with the agency’s decision that revocation of his security clearance,
instead of a lesser penalty, was warranted under the circumstances. Such an
issue, however, goes to the substance of the agency’s clearance determination,
which lies outside of our review authority. Hence, as the administrative judge
explained, this case is distinguishable from Romero, in which the procedural
review did not overstep the boundaries set by Egan. See Romero, 527 F.3d
at 1329-30; ID at 15.
Moreover, to the extent the appellant’s arguments can be construed as
alleged procedural errors, we find that the appellant has not shown that the
agency erred in the application of its procedures. As the administrative judge
noted, the agency’s SOP contains permissive language by identifying certain
2 The appellant also asserts for the first time on review that he only received a heavily
redacted version of the SOP, which prevented him from knowing that the agency
considered the matter to be a “security violation” instead of a “security infraction” and
mounting an effective defense. PFR File, Tab 1 at 13-15. We decline to consider this
argument in the first instance because the appellant has not shown that it is based on
new and material evidence that was unavailable before the record below closed. See
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). 4
incidents that “may” be considered security infractions and suggesting
disciplinary actions that “may be given to the offender.” IAF, Tab 7 at 35-39; ID
at 14. Nothing in the SOP mandates that the agency take a certain disciplinary
action or precludes the agency from imposing alternative discipline to the extent
the agency deems it warranted. Thus, the appellant has not shown that the
agency’s decision to review or revoke his access to SCI instead of imposing a
penalty recommended in the SOP amounted to a failure by the agency to follow
its procedures. Nor does the SOP require, as the appellant contends, that the
agency determine in its security report whether the matter was a violation or
infraction for purposes of imposing discipline. PFR File, Tab 1 at 13. Rather, the
SOP states that the purpose of a security inquiry is to determine whether there has
been a compromise of classified matter or a violation of law, and if so, to
determine the precise nature and extent of the compromise or illegal activity.
IAF, Tab 7 at 38.
Regarding the appellant’s remaining harmful error claim, we find that he
has not shown that the agency’s alleged error would have likely resulted in a
different conclusion. See 5 C.F.R. § 1201.4(r). The appellant argues that the
agency failed to follow the SOP which states that the Division Director and
Headquarters Special Security Officer would recommend appropriate disciplinary
action after considering the findings of the report of security inquiry. PFR File,
Tab 1 at 9-10. However, as the administrative judge found, the appellant has not
presented evidence that his Division Director would have recommended a
different action. ID at 15. Moreover, notwithstanding any such recommendation,
under the relevant agency policies, the IN Director is the final appeal authority
and decides and administers disciplinary action. IAF, Tab 4 at 26, Tab 7 at 38.
The record reflects that the IN Director made a final decision to revoke the
appellant’s SCI access. IAF, Tab 4 at 22.
Accordingly, we affirm the initial decision, sustaining the appellant’s
removal.5
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Pomeroy_Norman_DC-0752-18-0526-I-1 Final Order.pdf | 2024-03-05 | NORMAN POMEROY v. DEPARTMENT OF ENERGY, MSPB Docket No. DC-0752-18-0526-I-1, March 5, 2024 | DC-0752-18-0526-I-1 | NP |
2,187 | https://www.mspb.gov/decisions/nonprecedential/Rowe_Jo_M_AT-0752-20-0194-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JO M. ROWE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-20-0194-C-1
DATE: March 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher G. Holt , Esquire, Gulfport, Mississippi, for the appellant.
Jennie C. Patschull , Joint Base Andrews, 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 compliance initial
decision, which denied her petition for enforcement of a settlement agreement.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts that she could not open documents in the
Board’s e-Appeal Online system and that her call to the help desk did not resolve
the matter in a timely manner. Compliance Petition for Review File, Tab 1 at 3.
The Board’s records show that the appellant submitted a tech support ticket at
10:25 a.m. on October 6, 2021, alleging that she was unable to open documents
on e-Appeal Online and that she was receiving messages that downloads were
blocked in her emails. At 10:43 a.m., that same day, the appellant was provided
with instructions for viewing downloaded documents from e-Appeal Online.
According to the Board’s repository access logs, less than an hour later, the
appellant downloaded multiple documents from e-Appeal Online. Also, on
October 6, 2021, the administrative judge issued an order informing the parties
that the record in the appeal would close on October 13, 2021, Compliance File,
Tab 6, and the appellant downloaded that order on October 7, 2021. Although the
appellant was on notice of the date by which the record would close and she had
several days to file additional argument and evidence, she did not do so. Nor
does it appear that the appellant experienced any further difficulty opening
documents on e-Appeal Online. Any claim that technical difficulties prevented2
the appellant from developing the record in this matter is without merit. Thus, we
affirm the compliance initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 To the extent that the appellant seeks to challenge the initial decision dismissing her
initial appeal contesting the merits of her removal as settled, such a claim must be
raised as a petition for review of the initial decision dismissing the initial appeal as
settled. See Stasiuk v. Department of the Army , 118 M.S.P.R. 1, ¶ 4 n.1 (2012)
(explaining that a challenge to the validity of a settlement agreement cannot be raised in
a compliance proceeding but must be raised in a petition for review of the initial
decision that dismissed the appeal as settled). We make no finding, at this time,
regarding the timeliness of such a petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Rowe_Jo_M_AT-0752-20-0194-C-1_Final_Order.pdf | 2024-03-05 | JO M. ROWE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-20-0194-C-1, March 5, 2024 | AT-0752-20-0194-C-1 | NP |
2,188 | https://www.mspb.gov/decisions/nonprecedential/Poletto_DominicDE-0752-21-0117-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOMINIC POLETTO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-21-0117-I-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dominic Poletto , Englewood, Colorado, pro se.
Jennifer C. Pace , Esquire, Denver, Colorado, 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 of the agency action removing him from his City Letter
Carrier position 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).
For the first time on review, the appellant argues that he had the right to
appeal the removal under 39 U.S.C. § 1005(a), because he was a Postal Service
employee engaged in personnel work in other than a purely nonconfidential
clerical capacity. Petition for Review File, Tab 1 at 6-7, Tab 4 at 5-7. While the
Board will generally not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence, because the appellant’s
argument implicates the Board’s jurisdiction, we will address his claim. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016): Poole v. Department of
the Army, 117 M.S.P.R. 516, ¶ 9 (2012).
Postal Service workers who are not preference eligibles generally may not
appeal an adverse action to the Board. 5 U.S.C. § 7511(a)(1)(B)(ii); Hamilton v.
U.S. Postal Service , 123 M.S.P.R. 404, ¶ 17 (2016). An exception exists in the
case of non-preference eligible Postal employees “engaged in personnel work in
other than purely nonconfidential clerical capacity.” McCandless v. Merit
Systems Protection Board , 996 F.2d 1193, 1199-1200 (Fed. Cir. 1993).
Employees fall into that category when: (1) they assist and act in a confidential
capacity to persons who formulate, determine and effectuate management policy
in the field of labor relations; or (2) they regularly have access to confidential2
information concerning anticipated changes which may result from collective
bargaining negotiations. McCandless, 996 F.2d at 199-1200; Wilson v. U.S.
Postal Service, 109 M.S.P.R. 60, ¶ 9 (2008). Although the administrative judge
provided notice on this issue, Initial Appeal File (IAF), Tab 2 at 5, the appellant
failed to allege or to submit evidence showing that he satisfied either of the two
criteria. As noted at the outset, he was a City Letter Carrier when he was
removed, and nothing suggests that an individual employed in such position
engages in personnel work in other than purely nonconfidential clerical capacity.
The administrative judge properly found that the appellant failed to
nonfrivolously allege that he was a Postal Service employee with the right to
appeal an adverse action to the Board under 39 U.S.C. § 1005(a) or 5 U.S.C
§ 7511(a)(1)(B)(ii).2 IAF, Tab 9, Initial Decision at 3; see Hamilton,
123 M.S.P.R. 404, ¶ 17.
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 Because the appellant failed to carry his jurisdictional burden, the administrative
judge properly did not reach the issue of the timeliness of the appeal. Initial Decision
at 1 n.1; see Beaudette v. Department of the Treasury , 100 M.S.P.R. 353, ¶ 11 (2005)
(finding that claims over which the Board clearly lacks jurisdiction should be dismissed
on the basis of jurisdiction rather than based on timeliness grounds).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Poletto_DominicDE-0752-21-0117-I-1 Final Order.pdf | 2024-03-04 | DOMINIC POLETTO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-21-0117-I-1, March 4, 2024 | DE-0752-21-0117-I-1 | NP |
2,189 | https://www.mspb.gov/decisions/nonprecedential/Volson_DeselleDA-4324-17-0401-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DESELLE VOLSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-4324-17-0401-I-1
DATE: March 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
B
everly A. Banks , Lawton, Oklahoma, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
Ouida F. Adams , Shreveport, Louisiana, 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
denied her request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
amended at 38 U.S.C. §§ 4301-4335).2 For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Dallas Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was honorably discharged from the Navy in 2010, after
10 years of service, and has a 90% service-connected disability. Initial Appeal
File (IAF), Tab 17 at 4, Tab 32, Initial Decision (ID) at 19 -20, 22. Effective
May 31, 2016, the agency appointed her to a Medical Support Assistant (MSA)
position, a “hybrid” position under 38 U.S.C. § 7401(3) in the excepted service,
subject to a 1-year probationary period. IAF, Tab 17 at 4. On March 17, 2017,
the agency terminated the appellant for failing to follow leave procedures. IAF,
Tab 11 at 29-31. In a pair of letters dated March 29, 2017, the agency rescinded
the first termination action and terminated the appellant, effective March 20,
2017, for failing to follow supervisory instructions. IAF, Tab 11 at 33-36.
The appellant filed a USERRA complaint with the Department of Labor
(DOL), alleging that the agency discriminated against her based on her uniformed
service and service-connected disability. Id. at 69-73. DOL sent the appellant a
closure letter, advising her that her claim of discrimination based on her
service-connected disability was not cognizable under USERRA. Id. at 45-46.
The appellant filed a USERRA appeal with the Board. IAF, Tab 1 at 5.
After holding her requested hearing, the administrative judge issued a bench
decision, denying the appellant’s request for corrective action. ID at 11-13. He
incorporated the bench decision into a written initial decision. ID at 1-2. He
found that, while the appellant had performed uniformed service and the agency
2 The appellant also has petitioned for review of the initial decisions in her probationary
termination, individual right of action, and Veterans’ Employment Opportunity Act
appeals, which were docketed under Volson v. Department of Veterans Affairs , MSPB
Docket Nos. DA-0752-17-0446-I-1, DA-1221-17-0494-W-1, DA -3330-17-0402-I-1.
We have joined and adjudicated those appeals in a separate decision.2
denied her a benefit of employment by terminating her, she did not prove that her
uniformed service was a substantial or motivating factor in the agency’s decision
to terminate her. ID at 19-20. He further found that the evidence showed the
alleged harassment the appellant experienced was due to her service-connected
disability, which was not a cognizable USERRA claim. ID at 20-21, 24-28; see
McBride v. U.S. Postal Service , 78 M.S.P.R. 411, 415 (1998) (explaining that
USERRA does not authorize the Board to adjudicate a claim of discrimination
based on disability alone, even if the underlying disability arose from military
service).
The appellant has filed a petition for review, arguing that she proved her
uniformed service was a substantial or motiving factor in her termination and that
the administrative judge committed other adjudicatory errors. Petition for
Review (PFR) File, Tab 1 at 4, 18-21. The agency has filed a response. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Because the appellant raises a USERRA discrimination claim under
38 U.S.C. § 4311(a), she has the initial burden of proving by preponderant
evidence that her military service was a substantial or motivating factor in the
agency’s decision to terminate her.3 38 U.S.C. § 4311(c)(1); Sheehan v.
3 USERRA similarly prohibits discriminating in employment against or taking any
adverse employment action against any person because she has engaged in one or more
forms of the protected activity described in 38 U.S.C. § 4311(b). Burroughs v.
Department of the Army , 120 M.S.P.R. 392, 395 (2013). An agency violates section
4311(b) if the appellant’s protected activity “is a motivating factor in the employer’s
action, unless the employer can prove that the action would have been taken in the
absence of such person’s [protected activity].” 38 U.S.C. § 4311(c)(2). Should the
argument and evidence presented on remand indicate the appellant also has raised a
claim under section 4311(b), the administrative judge should consider that issue.
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).3
Department of the Navy , 240 F.3d 1009, 1013 (Fed. Cir. 2001). If she makes that
requisite showing, the agency has the opportunity to show that it would have
terminated her even in the absence of the improper motivation. 38 U.S.C.
§ 4311(c)(1); Sheehan, 240 F.3d at 1013-14 .
The appellant’s military service is a substantial or motivating factor in the
termination action if the agency “relied on, took into account, considered, or
conditioned its decision” on that service. Erickson v. U.S. Postal Service ,
571 F.3d 1364, 1368 (Fed. Cir. 2009). She may prove the factual question of
discriminatory motivation or intent with direct or circumstantial evidence.
Sheehan, 240 F.3d at 1014. Our reviewing court identified four nonexclusive
factors to be considered in determining whether to infer discriminatory motive:
“(1) proximity in time between the employee’s military activity and the adverse
employment action, (2) inconsistencies between the proffered reason and other
actions of the employer, (3) an employer’s expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity, and (4) disparate treatment of certain employees compared to other
employees with similar work records or offenses.” Id. (numbering added).
The administrative judge should reconcile the conflicting evidence to determine
whether the agency’s actions were consistent with its decision to terminate the
appellant.
As to the second factor for inferring motive, inconsistencies in the agency’s
proffered reason, the appellant points to such inconsistencies on review. PFR
File, Tab 1 at 21. The agency gave three different reasons for terminating the
appellant: failing to follow leave procedures, failing to follow supervisory
instructions, and being disruptive. IAF, Tabs 29-31, 33-36, Tab 30, Hearing
Compact Disc (HCD), part 2 at 6:00-8:00 (testimony of the appellant’s first-level
supervisor). The administrative judge determined that the inconsistency between
the first two reasons was not indicative of discriminatory animus, finding that the
agency identified the first reason in error and that the actions of the first-level4
supervisor, the putative deciding official, were consistent with the second
proffered reason. ID at 29-32. He did not make any explicit findings as to the
third reason.
Below, the appellant argued that she was not disruptive and addressed that
issue in her closing argument. IAF, Tab 18 at 15-16; HCD, part 2
at 1:39:30-1:40:00 (the appellant’s closing argument). On review, she identifies
specific evidence in the record that she claims contradicts the agency’s basis for
concluding that she was disruptive, including testimony from the first-level
supervisor, the acting supervisor, and the lead MSA. PFR File, Tab 1 at 6, 8-12.
According to the first-level supervisor’s testimony, she believed that the appellant
was disruptive because two acting supervisors and the lead MSA had reported to
her that the appellant was disruptive. HCD, part 2 at 6:00-8:00 (testimony of the
first-level supervisor). However, both the lead MSA and one of the identified
acting supervisors denied telling the first-level supervisor that the appellant was
disruptive. HCD, part 1 at 1:57:00-2:02:30 (testimony of lead MSA), part 2
at 54:00-56:00 (testimony of acting supervisor). There is no statement or
testimony in the record from the second acting supervisor. The administrative
judge did not acknowledge or attempt to resolve the conflict raised by the
testimony of those witnesses. 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).
The Board may only review the appellant’s termination to the extent
necessary to address her USERRA discrimination claims. See Metzenbaum v.
Department of Justice , 89 M.S.P.R. 285, ¶ 15 (2001) (explaining that in a
USERRA appeal the Board does not have jurisdiction to review the merits of an
action that is not otherwise appealable except to the extent necessary to address
the appellant’s military status discrimination claims). If the first-level5
supervisor’s basis for concluding that the appellant was disruptive is contrived,
that justification cannot explain the agency’s motivation for terminating her and
bolsters her claim that her termination was pretextual. See McMillan v.
Department of Justice , 120 M.S.P.R. 1, ¶¶ 21-23 (2013) (finding that, if credible,
the testimony showing that the agency’s proffered reason was questionable or
unsupported may serve as circumstantial evidence that the agency’s reason was
pretext to discriminate against the appellant based on his military service). As a
result, the administrative judge should resolve the credibility issues created by
this conflicting testimony and conclude whether the agency’s actions are
inconsistent with its proffered reason for terminating the appellant. Id., ¶¶ 21-24
(remanding the USERRA appeal for the administrative judge to resolve
conflicting testimony and to make credibility determinations) ; Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987) (providing a list of factors
for an administrative judge to consider in resolving credibility issues, including
the inconsistency of a witness’s version of events with other evidence).
The administrative judge did not consider all of the evidence relevant to whether
the agency expressed hostility toward the appellant’s military service.
As to the third factor for inferring discriminatory motive, an employer’s
expressed hostility toward members protected by the statute together with
knowledge of the employee’s military activity, the administrative judge found no
evidence that any employee used disparaging language toward veterans. ID
at 20-21. On remand, the appellant apparently disputes this finding. She alleges
that her first-level supervisor and a nonveteran coworker falsely accused her of
threatening to “shoot up the place,” and states that the testimony from the lead
MSA and two of her coworkers supports her claim. PFR File, Tab 1 at 6-8,
14-15. She argues that those unfounded accusations reflect a general negative
belief that veterans have post-traumatic stress disorder and are mentally unstable,
evidencing anti-veteran animus. Id. at 14-15. The administrative judge did not
consider this argument or evidence in the initial decision and did not make any6
credibility findings as to whether the allegedly false accusations were made. See
Spithaler, 1 M.S.P.R. at 589.
We found no evidence in the record showing that the appellant threatened
her first-level supervisor or any of her coworkers. There is conflicting testimony
on whether the first-level supervisor told others that the appellant had threatened
her and on the nature of that purported threat. The appellant testified that her two
coworkers told her that the first-level supervisor had started a rumor that the
appellant threatened to kill her and everyone in the call center. HCD, part 1
at 37:00-44:00 (testimony of the appellant). One of her coworkers testified that
the first-level supervisor told the appellant’s coworkers that the appellant was
“psychotic” and “crazy” and had threatened to “blow somebody up,” prompting
them to change the codes on the doors. Id. at 58:00-60:00 (testimony of one of
the appellant’s coworkers). In contrast, the appellant’s other coworker denied
talking with the appellant about any threat allegations. HCD, part 1
at 1:30:00-1:32:00 (testimony of the appellant’s other coworker). The lead MSA
testified that the first-level supervisor told him that the appellant “just blew up”
in her office. HCD, part 2 at 2:02:30-2:04:00 (testimony of the lead MSA).
Similarly, the first-level supervisor testified that the appellant had not threatened
her and denied making such a claim to others. HCD, part 2 at 8:15-8:45
(testimony of the first-level supervisor).
Falsely stating that the appellant was going to “blow the place up” because
she was “psychotic” and “crazy” may be probative evidence of anti-veteran
animus, given her first-level supervisor’s knowledge of the appellant’s veteran
status and the derogatory nature of that comment. See Bagunas v. U.S. Postal
Service, 92 M.S.P.R. 5, ¶¶ 15, 18 (2002) (finding that an interview panelist’s
remark that the appellant, a disabled veteran, did “not look disable[d]” and
probably had “bullets in his body,” if made, could evidence anti-veteran animus
among the panelists), overruled on other grounds by Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶¶ 8, 13 (2009); Petersen v. Department of the7
Interior, 71 M.S.P.R. 227, 235 (1996) (finding that the Board had jurisdiction
over a USERRA case in which the appellant alleged that coworkers harassed him
by referring to him as a “psycho,” “baby killer,” and “plate head” because of his
military service). Thus, if true, this may be circumstantial evidence that the
appellant’s veteran status was a factor in the agency’s termination action.
Therefore, the administrative judge should make the necessary credibility
determinations to resolve this factual dispute.4 See McMillan, 120 M.S.P.R. 1,
¶¶ 21-24; Hillen, 35 M.S.P.R. at 458.
The appellant has not shown that the testimony of the Human Resources (HR)
employee was unreliable or not credible.
The appellant also argues that the administrative judge erred in crediting
the testimony of the HR employee in finding that the inconsistencies between the
termination letters were not indicative of any nefarious motivation, but rather,
were the result of an inadvertent administrative error. PFR File, Tab 1 at 19-20;
ID at 29-30. She claims that his testimony was “biased” and “inconsistent” with
the other record evidence, PFR File, Tab 1 at 19; however, she has not explained
the reason for or identified evidence supporting either contention. Therefore, she
has provided no basis for overturning the administrative judge’s findings on this
issue. See Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980)
(explaining that before the Board will undertake a complete review of the record,
the petitioning party must explain why the challenged factual determination is
4 Some of the testimony on this issue is hearsay. It is well settled that hearsay evidence
is admissible in Board proceedings. Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 15 (2014). The Board weighs certain factors, as set forth in
Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981), to assess the probative
value of hearsay evidence. On remand, the administrative judge should consider the
Borninkohf factors in determining the probative value of this evidence. Moreover, the
administrative judge credited the fact that the alleged harassers also were veterans or
spouses of veterans in refuting the appellant’s allegations of discrimination. ID at 21.
The administrative judge also may want to revisit that determination on remand. See,
e.g., Beck v. Department of the Navy , 997 F.3d 1171, 1182 (Fed. Cir. 2021) (finding
that an agency official, a service member, engaged in prohibited USERRA
discrimination against the appellant, a veteran).8
incorrect and identify the specific evidence in the record which demonstrates the
error); Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding 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 that the Board may overturn
such determinations only when it has “sufficiently sound” reasons for doing so).
The appellant has not shown that her coworkers’ harassment based on her
service - connected disability was actionable or that they harbored animus toward
her because of her entitlement to veterans’ preference in hiring.
On review, the appellant reargues that she proved her USERRA
discrimination claim because she established that her coworkers harassed her
based on her service -connected disability and for receiving certain veterans’
preferences in hiring. PFR File, Tab 1 at 5, 13, 20-21. However, the
administrative judge correctly found that harassment based on the appellant’s
disability, even if that disability arose from the performance of military duty, is
not a claim of discrimination based on military service proscribed under
USERRA. ID at 24-28; see McBride, 78 M.S.P.R. at 415; cf. Petersen,
71 M.S.P.R. at 239 (finding that harassment on account of prior service in the
uniformed services, which is sufficiently pervasive to alter the conditions of
employment and create an abusive working environment, is a violation of
38 U.S.C. § 4311(a)). Moreover, the administrative judge already weighed the
appellant’s testimony in support of her claim of discrimination based on her
receiving veterans’ preference against the other evidence and found that the
appellant did not prove she was discriminated against based thereon. ID at 28-29.
The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s finding and do not provide a basis for granting the
appellant’s petition for review. 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, and9
made reasoned conclusions on issues of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant has not shown that the administrative judge was biased.
The appellant also suggests that the administrative judge based his decision
on his “personal opinion,” PFR File, Tab 1 at 4; however, she has not identified
any aspect of the initial decision or elsewhere in the record where this allegedly
occurred. Therefore, her conclusory assertion is insufficient to overcome the
presumption of honesty and integrity that accompanies administrative judges. See
Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (finding 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).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should make factual findings and credibility
determinations on whether the appellant provided any direct or circumstantial
evidence of anti-veteran animus, consistent with this Order. If, upon remand, the
administrative judge finds no additional direct or circumstantial evidence of
discriminatory animus, he may adopt his prior findings as appropriate. However,
if he concludes that the appellant has met her burden to prove her that her
military service was a substantial or motivating factor in her termination, the10
administrative judge should make findings as to whether the agency has shown
that it would have terminated her, even in the absence of the improper motivation.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Volson_DeselleDA-4324-17-0401-I-1_Remand_Order.pdf | 2024-03-04 | DESELLE VOLSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-4324-17-0401-I-1, March 4, 2024 | DA-4324-17-0401-I-1 | NP |
2,190 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Alton_F_CH-0714-20-0600-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALTON F. WILSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-20-0600-I-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason Matthews , Esquire, Dayton, Ohio, for the appellant.
Matthew O. Kortjohn , Dayton, 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
sustained the agency’s decision to remove him from Federal service. On petition
for review, the appellant challenges the administrative judge’s credibility
determinations, which formed the basis of the initial decision. Petition for
Review (PFR) File, Tab 1 at 11-17. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course
of the appeal or the initial decision were not consistent with required procedures
or involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge appropriately found that the agency’s removal
action, which was based on a charge of Inappropriate Conduct stemming from a
complaint from a female coworker of unwanted physical touching, was supported
by substantial evidence. Initial Appeal File (IAF), Tab 19, Initial Decision (ID)
at 4-9. In doing so, he assessed the credibility of, among others, the appellant
and the complaining witness against him, and he credited the complaining
witness’s version of events. ID at 8-9. Because a hearing was held below, and
the administrative judge’s credibility determinations are based, in part, on witness
demeanor at the hearing, we defer to those credibility determinations, absent a
sufficiently sound reason to disturb those findings. See Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367, 1372 -73 (Fed. Cir. 2016); Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
We have carefully reviewed the appellant’s arguments on review, which
primarily seek to highlight purported internal and external inconsistencies in
witness testimony and written statements. PFR File, Tab 1 at 11-14. However,
we conclude that the appellant’s examples of inconsistent testimony or written2
statements either concern matters not related to the encounter at issue between the
appellant and the female coworker or they are not actual inconsistencies in the
first instance.2 Accordingly, we find that the appellant has failed to establish a
“sufficiently sound” reason to disturb the administrative judge’s credibility
determinations, and we defer to them here.3 Haebe, 288 F.3d at 1301.
Additionally, the administrative judge correctly considered whether the
penalty of removal, as a part of the agency’s overall adverse action decision, was
2 We have also reviewed the appellant’s other claims regarding the complaining
witness’s credibility, specifically, his assertion that her version of events is inherently
improbable because she previously stated that his past behavior made her uncomfortable
and it would have been “counterintuitive” for her to voluntarily be alone in his
presence, and his assertion that she failed to follow agency policy on reporting
inappropriate conduct. PFR File, Tab 1 at 15-18. We find that these assertions do not
constitute “sufficiently sound” reasons to disturb the administrative judge’s credibility
determinations. Haebe, 288 F.3d at 1301.
3 After the record closed on review, the appellant filed a motion for leave to file an
additional pleading. PFR File, Tab 5. In his motion, he asserts that, in the time that
passed since filing his petition for review, he was adjudicated not guilty on the criminal
charge of sexual imposition, a charge which, he claims, relates to his physical
interaction with the female coworker at issue in this appeal. Id. at 4-5. He requests that
the Board permit him to file a supplemental petition for review addressing the not guilty
verdict and to submit the docket from the criminal case showing that he was acquitted.
Id. at 5. As explained by the Office of the Clerk of the Board, PFR File, Tab 6, the
Board’s regulations do not provide for pleadings other than a petition for review, a
cross petition for review, a response to the petition for review or cross petition for
review, and a reply to a response to a petition for review, 5 C.F.R. § 1201.114(a)(5).
Additionally, the Board generally will not consider an argument raised for the first time
on review absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). Regardless of whether appellant’s request is based on
new evidence that was not available prior to the close of record on review, we find that
evidence of an acquittal is not material to the outcome of this appeal. The Board has
acknowledged the different standards of proof in criminal actions and administrative
actions, where the former is based on proof beyond a reasonable doubt, and the latter
applies a lower standard of proof, such as preponderant or substantial evidence. See
generally Rodriguez -Ortiz v. Department of the Army , 46 M.S.P.R. 546, 548 (1991)
(explaining that a criminal acquittal is not binding in a civil action due to the differing
standards of proof); Adams v. Department of Transportation , 16 M.S.P.R. 158, 161
(1983), aff’d, 802 F.2d 470 (Fed. Cir. 1986) (Table), and aff’d sub nom. Stephens v.
Department of Transportation , 802 F.2d 468 (Fed. Cir. 1986) (Table). It has further
explained that, when the charged misconduct in an administrative action concerns the
underlying conduct and not the fact of a conviction, as is the case here, such misconduct3
supported by substantial evidence. ID at 10-11; see Sayers v. Department of
Veterans Affairs , 954 F.3d 1370, 1375 -79 (Fed. Cir. 2020). In doing so, he relied
on testimony from the deciding official, who testified that he gave great weight to
the fact that the appellant’s misconduct negatively impacted another employee
and had a greater impact on the agency’s mission than other types of misconduct
because it threatens the sense of safety and comfort felt by employees. ID at 10;
IAF, Tab 15, Hearing Recording (HR) (testimony of the deciding official). The
appellant has not challenged the administrative judge’s conclusion that the
agency’s selection of the penalty of removal is supported by substantial evidence,
and we discern no reason to disturb it. See Payne v. U.S. Postal Service ,
74 M.S.P.R. 419, 428-30 (1997) (concluding that removal was within the
maximum limits of reasonableness for conduct involving sexual harassment with
physical contact arising out of a single incident, despite nearly 10 years of service
with no prior disciplinary record), aff’d, 135 F.3d 776 (Fed. Cir. 1998) (Table).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
may be sustained notwithstanding the dismissal of the criminal charges. See Larry v.
Department of Justice , 76 M.S.P.R. 348, 355 (1997). Accordingly, the appellant’s
acquittal on the criminal charge has no effect on the outcome in this administrative
action. Therefore, we deny the appellant’s motion for leave to file an additional
pleading. See 5 C.F.R. § 1201.115(d).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Wilson_Alton_F_CH-0714-20-0600-I-1_Final_Order.pdf | 2024-03-04 | ALTON F. WILSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-20-0600-I-1, March 4, 2024 | CH-0714-20-0600-I-1 | NP |
2,191 | https://www.mspb.gov/decisions/nonprecedential/Mendenhall_Linda_A_AT-1221-19-0565-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA A. MENDENHALL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-19-0565-W-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
tanford J. Mendenhall , Camden, Alabama, for the appellant.
Shannon M. Callahan , Fort Sam Houston, Texas, 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 individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that she engaged in protected activity and
that the agency has been obstructing her efforts to secure Federal employment.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
regarding the issue of contributing factor and the appellant’s motion for the
agency to withdraw its request for sanctions, we AFFIRM the initial decision.
In her initial decision, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that anyone involved in the selection
processes at issue had knowledge of her protected activity. We agree with the
administrative judge’s finding and conclude that the appellant failed to make a
nonfrivolous allegation of contributing factor under the knowledge/timing test of
5 U.S.C. § 1221(e)(1)(A)-(B). See Tatsch v. Department of the Army ,
100 M.S.P.R. 460, ¶ 14 (2005). We modify the initial decision to find that the
appellant failed to make a nonfrivolous allegation of contributing factor by
alternative means. See Kerrigan v. Department of Labor , 122 M.S.P.R. 545, ¶ 10
n.2 (2015), aff’d, 833 F.3d 1349 (Fed. Cir. 2016).
On petition for review, the appellant requests a ruling on her motion for the
agency to withdraw its request for sanctions. Because the administrative judge
declined to issue sanctions, we deny the appellant’s motion as moot.
The appellant also moves to join the instant appeal with Mendenhall v.
Department of the Air Force , MSPB Docket No. AT-1221-19-0564-W-1. We find2
that joinder of these appeals would not promote adjudicatory efficiency, and we
therefore deny the appellant’s motion.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 | Mendenhall_Linda_A_AT-1221-19-0565-W-1_Final_Order.pdf | 2024-03-04 | LINDA A. MENDENHALL v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-19-0565-W-1, March 4, 2024 | AT-1221-19-0565-W-1 | NP |
2,192 | https://www.mspb.gov/decisions/nonprecedential/Mendenhall_Linda_A_AT-1221-19-0564-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA A. MENDENHALL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-19-0564-W-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
tanford J. Mendenhall , Camden, Alabama, for the appellant.
Jeremiah P. Crowley , Maxwell AFB, Alabama, 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 individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant argues that she engaged in protected activity and
that the agency has retaliated against her by rejecting her applications for
employment. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
regarding the issue of contributing factor, we AFFIRM the initial decision.
In her initial decision, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that anyone involved in the selection
processes at issue had knowledge of her protected activity. We agree with the
administrative judge’s finding and conclude that the appellant failed to make a
nonfrivolous allegation of contributing factor under the knowledge/timing test of
5 U.S.C. § 1221(e)(1)(A)-(B). See Tatsch v. Department of the Army ,
100 M.S.P.R. 460, ¶ 14 (2005). We modify the initial decision to find that the
appellant failed to make a nonfrivolous allegation of contributing factor by
alternative means. See Kerrigan v. Department of Labor , 122 M.S.P.R. 545, ¶ 10
n.2 (2015), aff’d, 833 F.3d 1349 (Fed. Cir. 2016).
On petition for review, the appellant moves to join the instant appeal with
Mendenhall v. Department of the Army , MSPB Docket No. AT-1221-19-0565-
W-1. We find that joinder of these appeals would not promote adjudicatory
efficiency, and we therefore deny the appellant’s motion.2
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Mendenhall_Linda_A_AT-1221-19-0564-W-1_Final_Order.pdf | 2024-03-04 | LINDA A. MENDENHALL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-19-0564-W-1, March 4, 2024 | AT-1221-19-0564-W-1 | NP |
2,193 | https://www.mspb.gov/decisions/nonprecedential/McMorrough_Lori_S_AT-315H-19-0046-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI SHEA MCMORROUGH,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-315H-19-0046-I-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
immy Thompson , Yazoo City, Mississippi, for the appellant.
Patty Johnson , Brandon, Mississippi, for the appellant.
Marie Clarke , 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 probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge improperly
denied her a hearing and weighed the agency’s evidence in reaching her 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).
contends that she met her jurisdictional burden because she showed that the
agency engaged in harmful procedural error by denying her the process set forth
in 5 C.F.R. § 315.805, and argues the merits of her termination. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
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 | McMorrough_Lori_S_AT-315H-19-0046-I-1_Final_Order.pdf | 2024-03-04 | LORI SHEA MCMORROUGH v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-315H-19-0046-I-1, March 4, 2024 | AT-315H-19-0046-I-1 | NP |
2,194 | https://www.mspb.gov/decisions/nonprecedential/Hoareau_EmileDC-0752-18-0745-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EMILE HOAREAU,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0745-I-1
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
mile Hoareau , Annandale, Virginia, pro se.
Michelle L. Perry , 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 the appellant’s appeal of his indefinite suspension as untimely filed
without good cause shown. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | Hoareau_EmileDC-0752-18-0745-I-1_Final_Order.pdf | 2024-03-04 | EMILE HOAREAU v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0745-I-1, March 4, 2024 | DC-0752-18-0745-I-1 | NP |
2,195 | https://www.mspb.gov/decisions/nonprecedential/Buffert_CrystalDC-3443-21-0062-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL BUFFERT,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-3443-21-0062-I-2
DATE: March 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crystal Buffert , Silver Spring, Maryland, pro se.
Alexandra L. Dixon , 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 appeal for lack of jurisdiction. On petition for review, the
appellant argues that she is experiencing “harassment and hostility” in her
workplace and that another employee is handling her duties after the agency
began to leave her out of meetings. Petition for Review (PFR) File, Tab 4 at 4.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the Board lacks jurisdiction
over the appellant’s claims that the agency, among other things, assigned her
duties of a higher grade level without increased pay and ignored her request to
reclassify her position. Buffert v. Department of Health and Human Services ,
MSPB Docket No. DC-3443-21-0062-I-2, Appeal File (I-2 AF), Tab 8, Initial
Decision (ID) at 5-9. She also correctly found that the appellant failed to raise
allegations that could form the basis of a suitability action claim or, to the extent
the appellant was attempting to seek corrective action under the whistleblower
protection statutes or the Veterans Employment Opportunities Act of 1998
(VEOA), that she failed to prove that she exhausted her administrative remedies2
with the Office of Special Counsel (OSC) or the Department of Labor (DOL),
respectively.2 ID at 8. We discern no basis to disturb these findings.3
The appellant submits with her petition for review emails between her and
her union regarding her issues with the agency and an email with an agency
official addressing the appellant’s concern that another employee was being
credited for her work. PFR File, Tab 4 at 6-16. These documents were not
submitted below. Generally, the Board will not consider evidence submitted for
the first time with a petition for review absent a showing that it was unavailable
2 On review, the appellant argues for the first time that she “requested investigation
from [OSC].” PFR File, Tab 4 at 4. To support this claim, she submits a March 22,
2021 email between her and an OSC employee. Id. at 17. Although the Board
generally will not consider an argument raised or evidence submitted for the first time
on review absent a showing that the new argument is based on new and material
evidence that was not previously available despite the party’s due diligence or evidence
that was unavailable before the record closed below despite the party’s due diligence,
see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016), we have considered
this argument and evidence here because it concerns the exhaustion of administrative
remedies, which is a jurisdictional issue, and jurisdiction is always before the Board,
see Lovoy v. Department of Health and Human Services , 94 M.S.P.R. 571, ¶ 30 (2003).
Nonetheless, we find that the appellant still failed to show by preponderant evidence
that she exhausted her administrative remedy with OSC. Specifically, the email on
which the appellant relies does not include details such as when she initially contacted
OSC, what specific claims she brought to OSC, whether those claims specifically
concerned whistleblower reprisal, or whether OSC closed its investigation or if the
requisite amount of time has passed since she complained to OSC. PFR File, Tab 4
at 17. Accordingly, it does not provide a basis to disturb the initial decision.
3 Given the nature of the appellant’s allegations, we have also considered whether her
claims could be construed as a claim of a constructive demotion. The constructive
demotion doctrine ordinarily applies when an employee was reassigned from a position
which, due to the issuance of a new classification standard or correction of a
classification error, was worth a higher grade; the employee met the legal and
qualification requirements for promotion to the higher grade; and she was permanently
reassigned to a position classified at a grade level lower than the grade level to which
she would otherwise have been promoted. Solamon v. Department of Commerce ,
119 M.S.P.R. 1, ¶ 15 (2012); Russell v. Department of the Navy , 6 M.S.P.R. 698, 711
(1981). Although we have considered whether the appellant was attempting to raise
such a claim, the record does not include any evidence that the appellant was reassigned
in the first instance. Therefore, we find that the appellant has not made a constructive
demotion claim.3
before the record closed before the administrative judge despite the party’s due
diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
Here, the record closed on or around July 9, 2021. I -2 AF, Tab 4 at 6,
Tab 7. The newly submitted emails are dated August 31 and September 22, 2021,
and therefore, were not available before the record closed below. PFR File,
Tab 4 at 6-16. Nonetheless, the appellant has not explained how these emails are
relevant to the question of jurisdiction or how they are otherwise of sufficient
weight to warrant an outcome different than that of the initial decision. Rather,
some of the emails appear to concern an internal dispute between the appellant
and her union regarding whether the union would seek arbitration on her behalf.
Id. at 6-9. The remaining email appears to document the appellant’s concern that
she was being left out of meetings and that a coworker was getting credit for her
work. Id. at 11. Thus, none of these documents address issues of jurisdiction
and, accordingly, do not provide a basis to grant the petition for review. See
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating 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).
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice,
the Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.5
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.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
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at
their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Buffert_CrystalDC-3443-21-0062-I-2_Final_Order.pdf | 2024-03-04 | CRYSTAL BUFFERT v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-3443-21-0062-I-2, March 4, 2024 | DC-3443-21-0062-I-2 | NP |
2,196 | https://www.mspb.gov/decisions/nonprecedential/Villa_David_J_SF-0752-21-0033-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID J. VILLA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-21-0033-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda A. Albers , Esquire, Laguna Hills, California, for the appellant.
Brendan Le , Esquire, and Catherine V. Meek , Esquire, Long Beach,
California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant argues that the
administrative judge erred in several findings of fact, made incorrect credibility
determinations, and was biased against him in favor of the female witnesses.
Petition for Review (PFR) File, Tab 1 at 5-32. He also argues that the penalty 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
removal was unreasonable. Id. at 32-33. 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).
In a 69-page initial decision, the administrative judge correctly found that
the agency proved all its charges, that there is a nexus between the misconduct
2 The agency responded to the appellant’s petition for review arguing that the petition
for review was untimely filed and exceeded the word limitations set forth in 5 C.F.R.
§ 1201.114(h). PFR File, Tab 3. In the event the Board proceeded to hear the petition
for review on the merits, the agency requested additional time to respond to the
appellant’s petition for review. Id. at 6. Under 5 C.F.R. § 1201.114(e), a petition for
review must be filed within 35 days after the date of issuance of the initial decision,
which, here, was issued on October 22, 2021. ID at 1. Based on this timeframe, the
administrative judge properly explained in the initial decision that a petition for review
must be filed no later than November 26, 2021. ID at 62. The appellant’s petition for
review was filed on November 24, 2021, and was, therefore, timely filed in accordance
with both the regulation and the administrative judge’s instruction. PFR File, Tab 1.
Although the appellant’s petition for review appears to exceed the maximum word
count, the Board’s regulations do not provide for a specific sanction when a pleading
exceeds the page or word limit, see 5 U.S.C. § 1201.114, and, in any event, the Board
may exercise its discretion to consider the petition for review, see 5 C.F.R. § 1201.12,
which we have done here. In light of our decision to deny the appellant’s petition for
review and affirm the initial decision, we deny the agency’s request to file a
supplemental pleading addressing the merits of the appellant’s petition for review.
3
and the efficiency of the service, and that the penalty of removal is reasonable.
Initial Appeal File (IAF), Tab 57, Initial Decision (ID) at 27-50, 57-62. She also
correctly found that the appellant failed to establish any of his affirmative
defenses.3 ID at 24-27, 50-57.
As noted above, the appellant argues on review, inter alia, that the
administrative judge was biased against him and other male witnesses in favor of
female witnesses. PFR File, Tab 1 at 28-32. 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. Scoggins
v. Department of the Army , 123 M.S.P.R. 592, ¶ 19 (2016). An administrative
judge’s conduct during a Board proceeding warrants a new adjudication only if
her comments or actions evidence a deep -seated favoritism or antagonism that
would make fair judgment impossible. Id. The appellant’s claim of bias appears
to be based exclusively on the fact that the administrative judge found the female
witnesses more credible. PFR File, Tab 1 at 28-32. Such an allegation, which
does not relate to any extrajudicial conduct by the administrative judge, neither
overcomes the presumption of honesty and integrity that accompanies an
administrative judge, nor establishes that she showed a deep -seated favoritism or
antagonism that would make fair judgment impossible. Moreover, the
administrative judge’s credibility determinations were properly based on the
factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987), and in several instances, such credibility determinations were based on
3 Among the appellant’s affirmative defenses, he asserted that he was subject to
discrimination based on his sex (male). IAF, Tab 1 at 22, Tab 30 at 50. In the initial
decision, the administrative judge found that the appellant failed to prove that his sex
was a contributing or motivating factor in the agency’s decision to remove him. ID
at 50-53. Because we affirm the administrative judge’s finding that the appellant failed
to show that any prohibited consideration was a motivating factor in the agency's
action, we need not resolve the issue of whether the appellant proved that
discrimination was a “but-for” cause of the agency’s action. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, PP 20-22, 29-33.
4
witness demeanor at the hearing.4 ID at 29-30, 32, 38-39. Based on the
foregoing, the appellant has not shown by preponderant evidence that the
administrative judge was improperly biased against him.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 When an administrative judge has held a hearing and has made credibility
determinations that were explicitly or implicitly based on witness demeanor while
testifying, the Board must defer to those credibility determinations and may overturn
such determinations only when it has a “sufficiently sound” reason for doing so.
Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016);
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2022). Here, the
appellant has not provided a sufficiently sound reason to overturn the administrative
judge’s credibility determinations.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Villa_David_J_SF-0752-21-0033-I-1_Final_Order.pdf | 2024-03-01 | DAVID J. VILLA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-21-0033-I-1, March 1, 2024 | SF-0752-21-0033-I-1 | NP |
2,197 | https://www.mspb.gov/decisions/nonprecedential/McCoy Jr_Herbert_DC-3330-19-0007-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HERBERT MCCOY, JR.,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-3330-19-0007-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Herbert McCoy, Jr. , Washington, D.C., pro se.
Floyd Allen Phaup, II , 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 his appeal under the Veterans Employment Opportunities Act of 1998
(VEOA) for lack of jurisdiction because he failed to prove that he exhausted his
administrative remedy before the Department of Labor (DOL). On petition for
review, the appellant merely restates his claim that his veterans’ preference rights
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
under VEOA were violated and appears to suggest that he did not receive the
initial decision, but he does not address the issue of DOL exhaustion. 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. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McCoy Jr_Herbert_DC-3330-19-0007-I-1__Final_Order.pdf | 2024-03-01 | null | DC-3330-19-0007-I-1 | NP |
2,198 | https://www.mspb.gov/decisions/nonprecedential/Slivicki_Susan_K_DE-3443-22-0077-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSAN K. SLIVICKI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-3443-22-0077-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
usan K. Slivicki , Fairdale, North Dakota, pro se.
Rachel A. Centinario , Minneapolis, Minnesota, for the agency.
Starla Larson-Pfeifer , Sioux Falls, South Dakota, 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 appeal for lack of jurisdiction. On petition for review,
the appellant fails to explain how the administrative judge erred or to provide any
evidence in support of Board jurisdiction. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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 7-12, 28-31.2 The Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980);
5 C.F.R. § 1201.115(d). The appellant’s document submitted for the first time on
review is a February 15, 2022 decision from the Department of Labor Employees’
Compensation Appeals Board (ECAB) remanding her reconsideration request of a
recurrence claim back to the Office of Workers’ Compensation Programs
(OWCP). PFR File, Tab 1 at 28-31. Although it predates the close of the record
below, we considered the appellant’s new evidence to the extent it concerns the
2 Some of the documents the appellant included with her petition for review are in the
record below and thus provide no basis to disturb the initial decision. PFR File, Tab 1
at 7-12; Initial Appeal File, Tab 2 at 76-81, Tab 9 at 4-10; see Brough v. Department of
Commerce, 119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will grant a petition
for review based on new and material evidence under certain circumstances but that
evidence that is already a part of the record is not new). We decline to discuss these
documents further.2
issue of the Board’s jurisdiction because jurisdiction can be raised at any time.
Morgan v. Department of the Navy , 28 M.S.P.R. 477, 478 (1985). Nonetheless,
the ECAB decision does not change the outcome in this case. For the Board to
consider new evidence submitted on petition for review, it must be material to the
threshold issue of jurisdiction. Becker v. Department of Veterans Affairs ,
112 M.S.P.R. 507, ¶ 9 (2009); see 5 C.F.R. § 1201.115(d) (explaining that the
Board may grant a petition for review based on new and material evidence that,
despite the petitioning party’s due diligence, was not available when the record
closed below). Here, because the Board does not have jurisdiction over OWCP’s
decisions, the ECAB remand decision is immaterial to the instant appeal. See
Clavin v. U.S. Postal Service , 99 M.S.P.R. 619, ¶ 4 (2005) (finding that the Board
lacks jurisdiction to review a denial of workers' compensation benefits).
We therefore decline to consider it further.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Slivicki_Susan_K_DE-3443-22-0077-I-1_Final_Order.pdf | 2024-03-01 | SUSAN K. SLIVICKI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-3443-22-0077-I-1, March 1, 2024 | DE-3443-22-0077-I-1 | NP |
2,199 | https://www.mspb.gov/decisions/nonprecedential/Norton_Salina_B_SF-0752-19-0348-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SALINA B. NORTON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-19-0348-I-1
DATE: March 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Salina B. Norton , Portland, Oregon, pro se.
Chelsea Miller , Portland, Oregon, 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 her alleged involuntary retirement appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was a Medical Support Assistant for the agency. Initial
Appeal File (IAF), Tab 6 at 12. In February 2018, the agency proposed her
removal for alleged misconduct. IAF, Tab 6 at 12-13. Before the agency issued a
decision on the proposed removal, the appellant retired on February 14, 2018, to
be effective on February 28, 2018. Id. at 9, 11.
¶3Shortly after receiving her proposed removal, the appellant appears to have
filed a complaint with the Office of Special Counsel (OSC). IAF, Tab 1 at 10-12.
Moreover, the appellant filed several formal equal employment opportunity
(EEO) complaints, including one in which she alleged that the agency forced her
to retire. Id. at 18-19. The agency issued a Final Agency Decision (FAD)
denying the appellant’s EEO complaints on March 6, 2019. Id. at 17-27. The
FAD did not include notice of the appellant’s right to file a claim with OSC but
did advise the appellant that she could file an appeal with the Board. Id. at 24-27.
¶4The appellant subsequently filed a Board appeal alleging that her retirement
was involuntary and that she was subjected to employment discrimination and
harassment. Id. at 2. With her appeal, she submitted a copy of an email from
OSC acknowledging her complaint. Id. at 10-13. The administrative judge gave
the appellant notice of the elements and burdens of establishing jurisdiction over
her alleged involuntary retirement but did not address her claim as a potential
individual right of action (IRA) appeal. IAF, Tab 2 at 2-4.
¶5The appellant responded to the jurisdictional notice. IAF, Tab 4. The
agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 4-6.
The appellant responded to the motion. IAF, Tab 10. The administrative judge
determined that the appellant failed to make a nonfrivolous allegation that she
was subjected to race discrimination or general working conditions that were so
pervasive that they forced her to retire. IAF, Tab 11, Initial Decision (ID)
at 8-11. She further found that, because the Board lacked jurisdiction over her
voluntary retirement, it also lacked jurisdiction over her allegations of2
discrimination. ID at 11. Thus, she dismissed the appeal for lack of Board
jurisdiction without holding the appellant’s requested hearing. Id.
¶6The appellant has filed a petition for review. Petition for Review File,
Tab 1. She attaches various documents that were not submitted below,
predominantly involving the merits of the various personnel actions she faced
prior to her retirement. Id. at 2-3, 5-30. She also asserts a second instance of
being called a racial slur, on this occasion by her supervisor. Id. at 3, 25.
According to the appellant, she misfiled these documents and discovered them
after the initial decision was issued.2 Id. at 3. She further asserts that the
administrative judge failed to consider all of the relevant facts and evidence
submitted below, and challenges the merits of various disciplinary actions,
including the February 2018 proposed removal for AWOL. Id. at 3-4. Finally,
she reiterates her claims of retaliation, hostile work environment, and
“constructive retirement.” Id. at 5. The agency has not responded to the
appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal must be remanded for the appellant to make a knowing and informed
election of remedies.
¶7Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action
appealable to the Board, and who alleges that she has been affected by a
prohibited personnel practice other than a claim of discrimination under 5 U.S.C.
§ 2302(b)(1), such as a claim for whistleblower reprisal, may elect one, and only
one, of the following remedies: (1) an appeal to the Board under 5 U.S.C.
§ 7701; (2) a grievance filed under the provisions of a negotiated grievance
procedure; or (3) an OSC complaint, potentially followed by an IRA appeal.
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 15 (2016),
2 The issue of jurisdiction over an appeal is always before the Board and may be raised
at any time. Campbell v. Office of Personnel Management , 90 M.S.P.R. 68, ¶ 8 (2001).
As such, we consider these documents submitted for the first time on review, to the
extent that they implicate the Board’s jurisdiction. 3
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. An election under 5 U.S.C. § 7121(g) is binding only if it was
knowing and informed. Corthell, 123 M.S.P.R. 417, ¶ 17. An agency’s failure to
inform an employee fully of her potential appeal rights under 5 U.S.C. § 7121(g)
and any limitation on those rights precludes a finding that the appellant made a
knowing and informed election of remedies under that provision. Id. Here, the
agency did not issue a letter of decision regarding the appellant’s retirement, and
the February 2018 proposed removal which prompted her retirement did not
include notice of her right to elect a remedy. IAF, Tab 6 at 12-14. Further, there
is no indication that she was informed through other means such as the agency’s
FAD on her EEO complaint. IAF, Tab 1 at 17-27.
¶8Although the agency’s FAD informed the appellant of her right to appeal
the FAD to the Board, this is not the same as receiving notice of her right to elect
a remedy, as the appeal rights noted in the FAD do not reference appealing to
OSC or how an election would limit other avenues of recourse. See Corthell,
123 M.S.P.R. 417, ¶ 17 (finding an agency’s failure to inform an employee fully
of his potential appeal rights under 5 U.S.C. § 7121(g) and any limitation on
those rights precludes a finding that the election of remedies was knowing and
informed). Thus, we must remand the appeal for the appellant to make a knowing
and informed election of remedies. See id., ¶¶ 17-18 (remanding for an
administrative judge to allow an appellant to make a knowing and informed
election of his remedies because he had not received notice of his option to file an
adverse action appeal). On remand, if the appellant elects to pursue an IRA
appeal, the administrative judge should provide her with notice of her
jurisdictional burden and an opportunity to establish jurisdiction over such an
appeal. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed.
Cir. 1985) (explaining that an appellant must receive explicit information on what
is required to establish an appealable jurisdictional issue). 4
If the appellant elects to pursue her chapter 75 appeal, the administrative judge
should hold a jurisdictional hearing.
¶9The administrative judge found that the Board lacks jurisdiction over the
appellant’s alleged involuntary retirement because she failed to nonfrivolously
allege that the race discrimination and general work conditions were so
intolerable that a reasonable person in her position would have felt compelled to
retire. ID at 8-11. We disagree.
¶10A retirement is presumed to be voluntary and outside of the Board’s
jurisdiction. Putnam v. Department of Homeland Security , 121 M.S.P.R. 532,
¶ 21 (2014). An involuntary retirement, however, is equivalent to a forced
removal within the Board’s jurisdiction under chapter 75. Id. The touchstone of
the voluntariness analysis and the common element in all Board cases involving
alleged involuntary retirements is that factors have operated on the employee’s
decision-making process that deprived her of freedom of choice. Coufal v.
Department of Justice , 98 M.S.P.R. 31, ¶ 22 (2004). The totality of the
circumstances is examined under an objective standard to determine
voluntariness. Id. Under that standard, the Board will find a retirement
involuntary only if the employee demonstrates that under all the circumstances,
working conditions were made so difficult by the agency that a reasonable person
would have felt compelled to resign. Id.
¶11An appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary retirement if she makes a nonfrivolous
allegation casting doubt on the presumption of voluntariness. Id., ¶ 23.
A nonfrivolous allegation is an allegation of fact that, if proven, could establish a
prima facie case that the Board has jurisdiction over the appeal. Id. Thus, to
establish entitlement to a jurisdictional hearing, an appellant need not allege facts
that, if proven, definitely would establish that the retirement was involuntary; she
need only allege facts that, if proven, could establish such a claim. Id.5
¶12When, as here, allegations of discrimination and reprisal are alleged, such
evidence may be addressed at the jurisdictional stage only insofar as it relates to
the issue of voluntariness and not whether the evidence would establish
discrimination or reprisal as an affirmative defense. Id., ¶ 24. Thus, evidence of
discrimination and retaliation goes to the ultimate question of coercion. Id.
¶13This appeal involves a number of actions that the appellant alleged created a
hostile work environment and forced her to retire. A combination of workplace
actions such as threatening removal and making negative remarks about the
appellant to other department heads may be sufficient to meet the nonfrivolous
pleading standard. Coufal, 98 M.S.P.R. 31, ¶¶ 26-27.
¶14The administrative judge found that the employee who was the source of the
racial comments the appellant raised below left the agency years before the
appellant retired. ID at 9. She found that there was no evidence or any further
direct mention of the appellant’s race or ethnicity in the several years after this
event. Id. Thus, she found the coworker’s alleged comments too remote to have
been a motivating factor in the appellant’s decision to retire nearly 3 years later.
Id. The administrative judge also found that the various personnel actions taken
against the appellant warranted disciplinary action and that the appellant was
afforded generous progressive discipline. Id. She therefore found that the
appellant failed to prove by preponderant evidence that the race discrimination
was so pervasive that it compelled her to retire. Id. This was erroneous, as the
appellant need only make a nonfrivolous allegation casting doubt on the
presumption of voluntariness to be entitled to a hearing on the issue of Board
jurisdiction. Coufal, 98 M.S.P.R. 31, ¶ 23.
¶15The administrative judge additionally found the appellant’s allegations of a
general hostile work environment were insufficient to amount to a pattern of
harassment such that a reasonable person in the appellant’s position would have
felt compelled to retire. ID at 9-10. Here, the appellant alleged that the agency
took a number of punitive actions for 3 years culminating in her perception that6
she had no choice but to retire. In sum, during this period, she alleges that the
agency issued her three written counselings, a letter of reprimand,
three suspensions, twice proposed her removal, called her a racial slur on more
than one occasion, introduced her as the “office token,” made negative remarks
about her to other supervisors, and yelled and cursed at her. We find that, as
alleged, a reasonable person in the appellant’s position could have felt that the
agency’s actions left her no choice but to retire. See Braun v. Department of
Veterans Affairs , 50 F.3d 1005, 1007-08 (Fed. Cir. 1995) (concluding that an
appellant was entitled to a jurisdiction hearing when he nonfrivolously alleged
that his supervisor issued 11 unjustified disciplinary actions within 17 months,
resulting in his coerced resignation); Coufal, 98 M.S.P.R. 31, ¶¶ 26-29 (finding
the totality of the circumstances alleged by the appellant, which included
examples such as elimination of key duties, requiring the appellant to work
additional hours without compensation, placing her on a performance
improvement plan, isolating her, excluding her from meetings, and making
negative comments, amounted to a nonfrivolous allegation of a constructive
discharge). The appellant has therefore made a nonfrivolous allegation that her
retirement was involuntary. On remand, if the appellant chooses to elect her
chapter 75 remedy, the administrative judge shall convene a jurisdictional hearing
at which the appellant must prove by preponderant evidence that her retirement
was involuntary. 7
ORDER
¶16For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Norton_Salina_B_SF-0752-19-0348-I-1_Remand_Order.pdf | 2024-03-01 | SALINA B. NORTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-19-0348-I-1, March 1, 2024 | SF-0752-19-0348-I-1 | NP |
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