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2,200 | https://www.mspb.gov/decisions/nonprecedential/Matusko_David_L_PH-315H-19-0005-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. MATUSKO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-315H-19-0005-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid L. Matusko , Williamsburg, Massachusetts, pro se.
Karen J. Grogan , Esquire, Leeds, Massachusetts, for the agency.
Edward Carney , Esquire, Bedford, Massachusetts, 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 does not identify any particular error with the
initial decision; instead, he avers that the agency terminated him as a result 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
inaccuracies on his resume, which, he asserts, someone else submitted on his
behalf. Petition for Review (PFR) File, Tab 1 at 3. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.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
2 The appellant provides additional documentary evidence with his petition for review.
PFR File, Tab 1 at 8-17. However, he presents no evidence or argument to suggest the
additional documents were unavailable prior to close of the record, as required. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 201.115(d).
Further, the documents do not contain information material to the outcome of the
jurisdictional issue. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(explaining that the Board generally will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals 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. 115-195,5
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.
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 | Matusko_David_L_PH-315H-19-0005-I-1_Final_Order.pdf | 2024-03-01 | DAVID L. MATUSKO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-315H-19-0005-I-1, March 1, 2024 | PH-315H-19-0005-I-1 | NP |
2,201 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Melvin_L_SF-0752-21-0092-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVIN L. JOHNSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-21-0092-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
enny Cochrane , Esquire, Kirkland, Washington, for the appellant.
Briana Buban and Theodore M. Miller , Seattle, Washington, for the agency.
Matthew S. Voss , Esquire, North Las Vegas, Nevada, 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 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
An involuntary retirement or resignation is tantamount to a removal and, as
such, is appealable to the Board. Aldridge v. Department of Agriculture ,
111 M.S.P.R. 670, ¶ 7 (2009). To overcome the presumption of voluntariness, an
appellant must show that the retirement or resignation resulted from agency
coercion, deception, or misinformation. Id., ¶ 8. When, as here, there is a claim
that an alleged involuntary action resulted from misinformation, an appellant
must show (1) that the agency made misleading statements; and (2) that the
appellant reasonably relied on the misinformation to his detriment.2 Id.
An appellant is entitled to a hearing on the issue of Board jurisdiction over
an alleged involuntary action only if he makes a nonfrivolous allegation casting
doubt on the presumption of voluntariness. Aldridge v. Department of
Agriculture, 110 M.S.P.R. 21, ¶ 10 (2008). Nonfrivolous allegations of Board
jurisdiction are allegations of fact which, if proven, could establish a prima facie
case that the Board has jurisdiction over the matter at issue. Id.
2 Although the administrative judge did not set forth this standard in the initial decision,
the jurisdictional order placed the appellant on notice that he could make a nonfrivolous
allegation of jurisdiction if he alleged that the agency made misleading statements on
which he relied to his detriment. Initial Appeal File (IAF), Tab 10 at 3.2
On review,3 the appellant asserts that his supervisor misled him as to the
“benefits” of submitting his resignation in lieu of an adverse action. Petition for
Review (PFR) File, Tab 1 at 3. He does not, however, specify what he was told
those benefits were. The appellant’s vague allegation is insufficient to meet the
nonfrivolous allegation standard. See Briscoe v. Department of Veterans Affairs ,
55 F.3d 1571, 1573-74 (Fed. Cir. 1995) (explaining that bald allegations standing
alone do not meet the nonfrivolous allegation standard). Moreover, even if the
appellant’s supervisor raised with him the option of resigning in lieu of being
removed, we find that any such discussion would not constitute a nonfrivolous
allegation of misinformation under the circumstances presented here. See
Parrot v. Merit Systems Protection Board, 519 F.3d 1328, 1334 (Fed. Cir. 2008)
(finding that the appellant failed to nonfrivolously allege that his resignation was
involuntary when the appellant was given the option of resigning for “personal
reasons” instead of being removed); see also Spearman v. Merit Systems
Protection Board , 530 F. App’x 936, 938 (Fed. Cir. 2013)4 (finding that an
agency official may have offered the appellant an opportunity to resign in lieu of
removal and pointed out the advantages of doing so but that such statements
failed to establish that his resignation was involuntary). Thus, we discern no
3 The appellant seeks to submit a May 14, 2021 decision from the Office of
Administrative Hearing regarding his application for unemployment benefits. Petition
for Review File, Tab 4. According to the appellant, the decision states that he “quit in
‘lieu of discharge’” and that he was not “discharged due to misconduct.” Id. at 3.
However, he does not explain how this purported new evidence changes the outcome of
his appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating
that the Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision); 5 C.F.R. § 1201.114(k) (stating that, once the record closes, no
additional evidence or argument will be accepted unless it is new and material as
defined in 5 C.F.R. § 1201.115(d) and the party submitting it shows that the evidence or
argument was not readily available before the record closed). Specifically, the
appellant has not explained how the May 14, 2021 decision is material to the dispositive
issue of jurisdiction over his Board appeal. Thus, we deny the appellant’s motion.
4 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).3
basis for disturbing the administrative judge’s finding that the appellant failed to
nonfrivolously allege that his resignation was involuntary based on
misinformation.5 Initial Appeal File, Tab 17, Initial Decision at 9.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 Below, the appellant asserted that his supervisor encouraged him to resign to avoid
waiting for 2 years to apply for jobs at the agency. IAF, Tab 13 at 3. To the extent the
appellant is raising that allegation again on review, PFR File, Tab 1 at 3, we discern no
basis for disturbing the administrative judge’s conclusion that the appellant did not
nonfrivolously allege that his resignation was involuntary based on misinformation
under the circumstances of this case. As set forth in the initial decision, the appellant
has not explained how his supervisor’s purported statements were erroneous, coercive,
or, importantly, designed to deprive the appellant of his rights. IAF, Tab 17, Initial
Decision at 8-9. In fact, the appellant had already been notified of the different avenues
for appealing the agency’s removal decision when his supervisor made the alleged
statements. IAF, Tab 8 at 13; PFR, Tab 1.
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.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Johnson_Melvin_L_SF-0752-21-0092-I-1_Final_Order.pdf | 2024-03-01 | MELVIN L. JOHNSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-21-0092-I-1, March 1, 2024 | SF-0752-21-0092-I-1 | NP |
2,202 | https://www.mspb.gov/decisions/nonprecedential/Higgins_Delaney_Patricia_CH-0752-19-0388-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA HIGGINS DELANEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-19-0388-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
urt Cummiskey , Esquire, 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 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.
After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant 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).
March 30, 2020 and by the agency on April 7, 2020. PFR File, Tab 4. The
document provides, among other things, for the withdrawal of the appeal. Id.
Before 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).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 4 at 5. As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
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. This is the final decision of the Merit Systems Protection Board
in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals 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. 115-195,5
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.
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 | Higgins_Delaney_Patricia_CH-0752-19-0388-I-1_Final_Order.pdf | 2024-03-01 | PATRICIA HIGGINS DELANEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-19-0388-I-1, March 1, 2024 | CH-0752-19-0388-I-1 | NP |
2,203 | https://www.mspb.gov/decisions/nonprecedential/Newbern_ChaylaAT-315H-19-0053-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHAYLA NEWBERN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-315H-19-0053-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
hayla Newbern , Memphis, Tennessee, pro se.
Yasmin Assar , 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 for lack of jurisdiction her appeal of her probationary 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
This appeal concerns the appellant’s challenge to her termination from a
position in the competitive service during her probationary period for
unsatisfactory attendance. Initial Appeal File (IAF), Tab 1, Tab 6 at 8, 11. The
administrative judge issued a November 27, 2018 initial decision finding that, at
the time of her termination, the appellant was still serving under the 1-year
probationary period to which her position was subject and did not have any prior
civilian service; thus, she was not an “employee” with a statutory right of appeal
to the Board. IAF, Tab 8, Initial Decision (ID) at 3-4. He also concluded that the
appellant had not alleged a regulatory right of appeal to the Board and dismissed
the appeal for lack of jurisdiction. ID at 4.
On review, the appellant argues that medical documentation supporting her
absences was not considered and provides new medical documentation, dated
October 24, 2018. Petition for Review File, Tab 1. The appellant has not
explained why she did not submit this documentation prior to the close of the
record below. Generally, the Board will not consider evidence submitted for the
first time on review absent a showing that it was unavailable before the record
closed despite the party’s due diligence, but the issue of the Board’s jurisdiction
is always before the Board and may be raised by either party, or sua sponte by the2
Board, at any time during a Board proceeding. Simnitt v. Department of Veterans
Affairs, 113 M.S.P.R. 313, ¶ 5 (2010); 5 C.F.R. § 1201.115.
Accordingly, we have considered the new documentation the appellant has
submitted; however, it does not provide a basis for the Board to assert jurisdiction
over this matter. As discussed by the administrative judge, the appellant has not
shown a statutory or regulatory basis on which the Board can conclude that the
appellant has standing to challenge her probationary termination. ID at 3-4; see
5 U.S.C. § 7511(a)(1)(A) (defining, in relevant part, an “employee” under
5 U.S.C. chapter 75 as an individual in the competitive service who either: (1) is
not serving a probationary or trial period under an initial appointment, or
(2) except as provided in section 1599e of Title 10, has completed 1 year of
current, continuous service under an appointment other than a temporary one
limited to 1 year or less); Harris v. Department of the Navy , 99 M.S.P.R. 355, ¶ 6
(2005) (stating that a probationary employee in the competitive service has a
regulatory right of appeal to the Board if she makes a nonfrivolous allegation that
she was terminated due to discrimination based on marital status or for partisan
political reasons, or because of conditions arising before appointment to the
position in question); 5 C.F.R. §§ 315.805-315.806. Additionally, to the extent
the appellant is arguing that the agency terminated her because of a disability, the
Board lacks jurisdiction to consider a discrimination claim absent an otherwise
appealable action. Baggan v. Department of State , 109 M.S.P.R. 572, ¶ 9 n.2.
The dismissal of the appeal for lack of jurisdiction is affirmed.
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 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 of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Newbern_ChaylaAT-315H-19-0053-I-1_Final_Order.pdf | 2024-03-01 | CHAYLA NEWBERN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-315H-19-0053-I-1, March 1, 2024 | AT-315H-19-0053-I-1 | NP |
2,204 | https://www.mspb.gov/decisions/nonprecedential/Braun_Jason_B_DE-1221-18-0084-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON B. BRAUN,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-18-0084-W-2
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ason B. Braun , Gainesville, Virginia, pro se.
Joshua Mann , Esquire, and Madonna Herman Graham , Albuquerque,
New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in an individual right of action appeal.
On review, the appellant asserts, among other things, that the administrative
judge erred in finding that he had failed to prove that his resignation was
involuntary and that harassment can only be the proper subject of a disclosure 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).
an abuse of authority if the underlying allegations concern a supervisor.
Generally, we grant petitions such as 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 | Braun_Jason_B_DE-1221-18-0084-W-2_Final_Order.pdf | 2024-03-01 | JASON B. BRAUN v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-18-0084-W-2, March 1, 2024 | DE-1221-18-0084-W-2 | NP |
2,205 | https://www.mspb.gov/decisions/nonprecedential/Nsima_Jean_F_NY-0752-16-0244-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN F. NSIMA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-16-0244-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
awrence Tomscha , New York, New York, for the appellant.
David M. Burns , 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 40-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).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to analyze the appellant’s allegations of discrimination and
retaliation for filing equal employment opportunity (EEO) complaints, we
AFFIRM the initial decision.
BACKGROUND
The appellant is a Personnel Security Specialist for the agency’s Federal
Protective Service (FPS). Initial Appeal File (IAF), Tab 6 at 41, 332. In
March 2012, a female coworker began working in the same office as the appellant
as a probationary Budget Analyst. IAF, Tab 8 at 58. The appellant approached
this coworker during her first month of employment and made a number of
statements as to the relative strength of his position in comparison to hers. IAF,
Tab 6 at 333, Tab 8 at 59-60, Tab 9 at 122. For example, he advised her that the
agency did not want to hire her but he persuaded management to do so, that he
had a strong connection with upper management, that his coworker was in a
surplus position, and that she was probationary. IAF, Tab 6 at 333, Tab 8
at 59-60. Between March and July 2012, the appellant kissed his coworker on the
back of her hand three to five times, although she informed him she was married
and did not “appreciate his actions.” Id.; IAF, Tab 9 at 122. He also placed his
palm on her thigh on at least one occasion. IAF, Tab 6 at 333, Tab 9 at 62, Tab 9
at 122-23. When his coworker attempted to push the appellant’s hand away, he
3
leaned toward her in what she believed was an attempt to kiss her cheek. IAF,
Tab 6 at 333, Tab 9 at 122. However, she blocked him with her hand when he
was within two inches of her face. IAF, Tab 6 at 333, Tab 9 at 122.
When her probationary period ended, the appellant’s coworker reported the
appellant’s conduct to the agency and he was moved to a different floor. IAF,
Tab 8 at 62-63, Tab 9 at 123. This appears to have been the end of the matter
until the appellant confronted his coworker again on August 1, 2013, at her
cubicle, pointed at her, and loudly accused her of “play[ing] games.” IAF, Tab 8
at 55-56, 64, Tab 9 at 332-33. The appellant’s coworker immediately reported
the incident to a manager.
In the meantime, on June 26, 2013, the appellant called his second-line
supervisor to complain about the fact that his first-line supervisor was walking
past his cubicle. IAF, Tab 6 at 333, Tab 7 at 10. During this conversation, the
appellant stated in an elevated voice, “[I]f he comes by here again I am going to
do something physically.” IAF, Tab 7 at 10.
The agency’s Office of Compliance and Security, Internal Affairs Division,
investigated allegations by and against the appellant, including the allegations
discussed above. IAF, Tab 6 at 341, Tab 8 at 37-38, Tab 9 at 124-25. In the
course of these investigations, two Internal Affairs Senior Special Agents
attempted to interview the appellant in July and October 2013. IAF, Tab 6
at 333-34, Tab 7 at 28-31, Tab 9 at 83. However, the appellant appeared for his
two initial interviews, both scheduled for July 11, 2013, with an individual who
presented himself as the appellant’s union representative. IAF, Tab 7 at 29-30.
When the Senior Special Agent present questioned why the appellant, who was
not in a bargaining unit, had a union representative, the appellant left the
interview without participating. IAF, Tab 6 at 333-34, Tab 7 at 30, Tab 9 at 5.
An additional interview was scheduled for October 29, 2013. IAF, Tab 9 at 83.
However, after a break in the interview, the appellant refused to complete a
written affidavit as instructed. IAF, Tab 6 at 334.
4
The agency proposed to suspend the appellant for 45 days based on the
following charges: (1) inappropriate conduct as it concerned the appellant’s
behavior toward his female coworker and his statement that he would do
something physically to his first-line supervisor; and (2) his failure to cooperate
in the agency’s investigations, as discussed above. Id. at 332-38. The appellant,
through his representative, presented oral and written replies to the proposed
suspension. Id. at 74-110. After considering the appellant’s replies, the deciding
official upheld all the charges as specified but mitigated the penalty to a 40 -day
suspension, effective August 10, 2015. Id. at 41, 63-69.
The appellant challenged the action by filing a formal equal employment
opportunity (EEO) complaint. Id. at 24. After the issuance of a final agency
decision finding no discrimination or retaliation, the appellant filed a Board
appeal and requested a hearing. IAF, Tab 1 at 2, Tab 6 at 28. On appeal, the
appellant claimed that his suspension was the result of retaliation for engaging in
EEO activity and resulted from harmful procedural error. IAF, Tab 1 at 5, Tab 43
at 2. He also alleged that the agency’s action was barred by the doctrine of
laches. IAF, Tab 87, Initial Decision (ID) at 3. The appellant failed to respond to
some of the administrative judge’s orders or to timely answer the agency’s
discovery requests. IAF, Tab 28. Therefore, the administrative judge prohibited
him from presenting evidence and testimony on his affirmative defenses, other
than his own testimony. Id.
After the 6-day hearing concluded, the administrative judge issued an
initial decision in which she sustained all specifications of both charges, found
nexus between the misconduct and the efficiency of the service, and upheld the
reasonableness of the penalty. ID at 1-2, 4-26, 38. She found that the appellant
failed to prove any of his affirmative defenses or his claim of laches. ID
at 26-31. The appellant filed a petition for review challenging the administrative
judge’s findings, and the agency responded in opposition. Petition for Review
(PFR) File, Tabs 1, 5.
5
ANALYSIS
The administrative judge correctly sustained the charge of inappropriate conduct.
The charge of inappropriate conduct was based on five specifications
(A-E), all of which the administrative judge sustained. With the exception of
specification B, the specifications were based on the following allegations: the
appellant made statements suggesting he had authority over his female
coworker’s continued employment and touched (and attempted to touch) her
inappropriately on several occasions in 2012; and he made comments and
engaged in unprofessional conduct on August 1, 2013, which she perceived as
threatening. In specification B, the agency alleged that, on June 26, 2013, the
appellant called his second-line supervisor and yelled that he was going to “do
something physically” if his first-line supervisor walked past his cubicle again.
IAF, Tab 6 at 333.
The agency has the burden of proving its charges by preponderant
evidence. 5 C.F.R. § 1201.56(b)(1)(ii). To prove a charge of inappropriate
conduct, the agency is required to demonstrate that the appellant engaged in the
underlying conduct alleged in support of the broad label. See generally Raco v.
Social Security Administration , 117 M.S.P.R. 1, ¶ 7 (2011) (setting forth the
criteria for proving conduct unbecoming a Federal employee); Parbs v. U.S.
Postal Service, 107 M.S.P.R. 559, ¶ 8 (2007) (stating the same criteria for
proving improper conduct), aff’d per curiam , 301 F. App’x 923 (Fed. Cir. 2008).
Although the appellant suggests that the agency was required to prove that he
harassed his coworker, he is mistaken. PFR File, Tab 1 at 13-14. The agency
here charged the appellant with inappropriate conduct, not harassment. IAF, Tab
6 at 332. It was not required to prove that the appellant’s conduct was
harassment, even if the proposed suspension described his misconduct as
harassing, which it did not. Id. at 332-33; see Otero v. U.S. Postal Service ,
73 M.S.P.R. 198, 201, 203-04 (1997) (finding that an agency that removed an
appellant for the charge of improper conduct was not required to meet the higher
6
burden of proving he made a “threat,” despite describing his conduct as
“threatening” in its proposed removal; rather, it only was required to prove the
elements of a charge of improper conduct).
In her initial decision sustaining all specifications of the charged
misconduct, the administrative judge thoroughly addressed the record evidence,
including the hearing testimony, and provided a detailed explanation for why she
found the agency witnesses’ version of events was credible and the appellant’s
was not. ID at 3-38. In making her credibility determinations, the administrative
judge relied on the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987), including witness demeanor. ID at 4-36. In Hillen,
the Board found that, in assessing a witness’s credibility, an administrative judge
should consider factors such as any prior inconsistent statement by the witness,
the contradiction of the witness’s version of events by other evidence or its
consistency with other evidence, and the witness’s demeanor. Hillen,
35 M.S.P.R. at 458. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The administrative judge found that the appellant’s female coworker’s
testimony about his inappropriate conduct specified in charge 1 was coherent,
supported by her contemporaneous statements to a colleague, and consistent with
her 2013 affidavit and what she reported to management.2 ID at 4-7, 11-16. The
2 The appellant disputes the administrative judge’s finding that he “did not deny having
kissed” his coworker’s hand. PFR File, Tab 1 at 11; ID at 13. We agree that this
finding was in error. The appellant stated at one point during the hearing that he “never
kissed his coworker.” September 20, 2016 Hearing Transcript at 226 (testimony of the
appellant). However, we decline to find that this error was harmful to the decision
because the appellant later testified that “if the woman allow[s] you to kiss her hand and
then she didn’t report that, that means . . . nothing happened.” Id. at 244. Further, the
administrative judge recognized in her initial decision that the appellant generally
denied all allegations of misconduct. ID at 4-7, 11-16.
7
administrative judge also found that the appellant’s first-line and second-line
supervisors kept contemporaneous records documenting the appellant’s
unprofessional conduct during the telephone conversation with his second-line
supervisor referenced in charge 1, and their testimony was consistent with those
records. ID at 10.
The appellant disagrees with the administrative judge’s reliance on his
female coworker’s prior consistent statements and corroborating evidence as
supporting her credibility. For example, he argues that the administrative judge
should not have considered that his coworker made prior consistent statements to
third parties as to the appellant’s misconduct. PFR File, Tab 1 at 8, 11; ID
at 5, 7, 13-14. In considering these statements as weighing in favor of the
credibility of the appellant’s coworker, the administrative judge properly carried
out her obligation under Hillen. Thus, we discern no error. See Parbs,
107 M.S.P.R. 559, ¶ 16 (finding the consistency of a witness’s two statements
supported the credibility of those statements). To the extent that the appellant
alleges that the corroborating evidence or testimony was hearsay, we find nothing
improper in the administrative judge’s consideration of this evidence. PFR File,
Tab 1 at 12; ID at 5, 7, 13-14; see Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶¶ 3, 14-17 (2014) (observing that hearsay evidence is
admissible in Board proceedings, and finding that an administrative judge
properly considered hearsay evidence to corroborate that the appellant engaged in
the misconduct underlying her removal).
The appellant also raises a number of challenges to the administrative
judge’s demeanor-based credibility findings. For example, he argues that
management spent years trying to frame him and mischaracterized his words.
PFR File, Tab 1 at 2-3, 6-11, 13-15. He argues that, after his female coworker
discovered that management was plotting against him, she accused him of
threatening behavior and making sexual advances to further her career. Id.
at 6, 14-15. He disagrees with the administrative judge’s finding that his
8
coworker credibly testified that she felt threatened when he told her that the
agency originally did not want to hire her and he had a strong connection with
upper management, and reminded her that she was probationary.3 ID at 15-16;
PFR File, Tab 1 at 12, 14-15. The appellant also argues that no reasonable person
would believe that he could get physical, as he allegedly threatened to do with his
first-line supervisor, because he wears a leg brace and uses a cane to walk. PFR
File, Tab 1 at 6, 9. The administrative judge found unbelievable the appellant’s
denials and his argument that he was physically incapable of engaging in the
misconduct specified in charge 1. ID at 6-7, 10-11, 15-16. We find that the
appellant’s arguments on review challenging the credibility of the agency’s
witnesses and the administrative judge’s weighing of the evidence are insufficient
to cause us to disturb the administrative judge’s well -reasoned findings.4
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
On review, the appellant also reasserts his argument that the doctrine of
laches bars the agency from taking any action against him based on the alleged
inappropriate conduct in 2012 concerning his female coworker. PFR File, Tab 1
3 Further, the appellant asserts that “a lawyer turned FPS agent” urged his female
coworker to request an order of protection and/or to file a police report. PFR File,
Tab 1 at 14. However, this fact was not mentioned in the agency’s proposed
suspension, suspension decision, or the initial decision. IAF, Tab 6 at 63-73, 332-38;
ID. Thus, we do not find it relevant to whether the agency met its burden to prove the
charges or penalty.
4 As other examples of his disagreement with the administrative judge’s credibility
findings, the appellant asserts that his coworker’s testimony about his behavior towards
her was inconsistent with her prior statements and inherently improbable. PFR File,
Tab 1 at 13-15. He asserts that his female coworker’s testimony shows that he did not
make her uncomfortable, and that he taught her French and they had a “cozy”
relationship. Id. at 12-13. He also suggests that she lacked credibility because she did
not document some of the incidents when they occurred although she testified that her
friend told her to do so. Id. at 15. We similarly find these arguments unpersuasive.
9
at 10-13. The equitable defense of laches bars an action when an unreasonable
delay in bringing the action has prejudiced the party against whom the action is
taken. Johnson v. U.S. Postal Service , 121 M.S.P.R. 101, ¶ 6 (2014). The party
asserting laches must prove both unreasonable delay and prejudice. Id. The
administrative judge found that the agency’s delay in bringing the charge was not
unreasonable or prejudicial to the appellant’s defense. ID at 34-36.
The appellant challenges both of these findings. PFR File, Tab 1 at 10-11.
However, he points to no specific evidence to suggest he was prejudiced by the
delay. Instead, he speculates that he “may not have been in the office” when he
allegedly kissed his coworker on the hand. Id. at 11. Absent any specific
evidence that the appellant sought and was improperly denied attendance
information, we cannot presume that the 2 1/2 to 3 year delay between the alleged
incidents and the issuance of the proposed suspension prevented him from
arguing that he was not at work. See Mercer v. Department of Health and Human
Services, 82 M.S.P.R. 211, ¶ 12 (1999) (declining to presume that an agency was
prejudiced when an appellant did not file an Office of Special Counsel complaint
until approximately 3 years and 9 months after her termination).
The administrative judge correctly sustained the charge of failure to cooperate in
an agency investigation.
The administrative judge found that the agency met its burden of proving
that the appellant failed to cooperate in an agency investigation and that the facts
underlying the specifications were largely uncontested. ID at 17, 23. On review,
the appellant does not dispute the conduct underlying this charge. For example,
the appellant does not dispute that, on July 11, 2013, he walked out of his
scheduled interviews with Senior Special Agents. ID at 22. The appellant also
does not dispute that he refused to provide a written affidavit following his oral
testimony on October 29, 2013. ID at 24. Instead, he argues that he felt
intimidated by the agents and nothing prevented him from bringing a
10
representative. PFR File, Tab 1 at 16-17. Accordingly, we discern no reason to
disturb the administrative judge’s finding that the agency proved this charge.
The appellant did not establish that the agency committed harmful error.
For the first time on review, the appellant argues that the scope of the
agency’s investigation and the voluminous evidence produced against him
constituted an abuse of authority and excessive waste of Government resources,
which violated his constitutional right to due process and his right under the
Fourteenth Amendment of the U.S. Constitution to protection from Governmental
abuse of authority. PFR File, Tab 1 at 4-5, 9, 13-14; IAF, Tab 43 at 1-2. He
contends that the agency denied him due process by failing to submit evidence in
an accessible format and by using three numbering systems in the agency file,
which made it impossible for him to easily find and cite documents. PFR File,
Tab 1 at 6. He also argues that the agency denied his right to due process by
charging him with misconduct that allegedly occurred in 2012. Id. at 11.
The appellant did not make a due process argument on appeal, and 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. IAF, Tab 43 at 1-2;
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant
has not made that showing here. Although the Board will not consider the due
process claims that the appellant raised for the first time on review, the Board
will consider the claims of harmful error that he made on appeal and reasserts on
review.
The appellant reasserts some of the harmful error claims that he raised on
appeal.5 PFR File, Tab 1 at 9, 14, 16-17; IAF, Tab 43 at 2. The Board will
5 The appellant appears to withdraw his affirmative defense that the agency failed to
properly process EEO claims concerning prior discipline. ID at 33; PFR File, Tab 1
at 18. The administrative judge found that the agency did not refuse to process these
claims, as alleged. ID at 33. Instead, it recommended that the appellant amend an
existing EEO complaint to include them. Id. Even assuming the appellant is
challenging this well -reasoned finding on review, he does not explain why he believes it
11
reverse an action taken by an agency if an appellant proves that the agency
committed a harmful procedural error in applying the agency’s procedures in
arriving at its decision. 5 C.F.R. § 1201.56(c)(1). The appellant must prove his
claim of harmful error by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C).
An agency’s error is only harmful if the record shows that a procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Mattison v. Department
of Veterans Affairs , 123 M.S.P.R. 492, ¶ 14 (2016); 5 C.F.R. § 1201.4(r). The
administrative judge found that the appellant failed to meet his burden of proving
harmful error, and we agree. ID at 30-34.
The appellant argues that the agency committed harmful error by neglecting
his rights under the American Federation of Government Employees (AFGE)
Collective Bargaining Agreement and the criminal code and by prohibiting an
AFGE union representative from observing his July 11, 2013 investigative
interview. PFR File, Tab 1 at 16-17; IAF, Tab 43 at 2. The administrative judge
found that the appellant was not an AFGE member and, in any event, he ended
this interview as soon as he was questioned regarding the union representative
who accompanied him. ID at 32-33. The appellant does not dispute these
findings on review. Thus, we agree with the administrative judge that the agency
did not commit any error. Id.
The appellant’s other harmful error claims are similarly unavailing. For
example, he reasserts that the agency committed harmful error when it attempted
to interview him based on alleged intimidation tactics used by Special Agents
“toting guns.” IAF, Tab 43 at 2. The administrative judge made factual findings
was in error. PFR File, Tab 1 at 18. Therefore, we decline to disturb it.
For the first time on review, the appellant argues that the agency was required to
include a human resources review of the suspension action during processing, and that
the agency committed harmful error by failing to follow this alleged procedure. Id.
at 4. Because the appellant has not shown that this argument is based on new and
material evidence not previously available despite his due diligence, we will not
consider it on review. 5 C.F.R. § 1201.115(d).
12
based on the evidence before her that the appellant was not intimidated. ID
at 33-34. Although the appellant repeats his allegations from below, he does not
explain why he believes the administrative judge’s specific factual finding was in
error. Id.; PFR File, Tab 1 at 8-9, 14, 16. Thus, we discern no basis to grant
review. See 5 C.F.R. § 1201.115(a)(2) (explaining that a petitioner who alleges
that the administrative judge made an erroneous finding of material fact must
explain why the challenged factual determination is incorrect and identify
specific evidence in the record that demonstrates the error).
The appellant also reasserts his argument that the agency committed
harmful error in its penalty determination because the deciding official relied on
the appellant’s 5-day suspension from 2006. PFR File, Tab 1 at 18; IAF, Tab 6
at 64. The administrative judge was not persuaded that the agency violated any
policy by considering this prior discipline. ID at 31-32. She went on to find that
the appellant had not proven that any error in considering the 2006 discipline was
harmful. ID at 32. Although on review the appellant has attempted to introduce
emails from 2005 and 2006 that he alleges support his claim of error, we decline
to consider this evidence because it is not new. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding that under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time on review absent a
showing that it was unavailable before the record was closed despite the party’s
due diligence); 5 C.F.R. § 1201.115(d) (explaining that to constitute new
evidence the documents and information they contain must have been unavailable
despite due diligence when the record closed below). The appellant implicitly
recognizes this fact by requesting that the Board consider the evidence because
the administrative judge allegedly declined to consider similar evidence below
due to her imposition of sanctions.6 PFR File, Tab 1 at 18, 23 -27. The
administrative judge also found that, assuming the agency committed error, it was
not harmful in light of the appellant’s lengthy disciplinary history. ID at 13. The
6 We discuss and uphold these sanctions below.
13
appellant has not disputed this finding. Thus, we are without any basis to disturb
the administrative judge’s denial of this harmful error claim. ID at 32.
The administrative judge properly found that the appellant failed to prove
retaliation for filing EEO complaints.
The administrative judge found that the appellant failed to establish that the
agency’s suspension action was motivated by retaliation for his prior EEO
activity. ID at 30. She found that the appellant’s testimony of racial slurs and
“put downs” by management officials was not credible. ID at 28-29. She also
found that the appellant provided absurd testimony in support of his argument
that the agency was a “well-organized mafia” out to get him solely because of his
race. ID at 29. On review, the appellant does not dispute these findings.7
To the extent that the administrative judge suggested that the evidence
should be analyzed as either “direct” or “indirect” evidence, we modify this
reasoning to find that, regardless of the characterization of the evidence, the
appellant failed to meet his burden to prove that retaliation was a motivating
factor in the contested personnel action. ID at 27-28 n.11; see Gardner v.
Department of the Army , 123 M.S.P.R. 647, ¶¶ 29-31 (2016) (explaining that
evidence of EEO discrimination or retaliation should not be separated into
different categories as if subject to different standards, but instead should be
considered as a whole), clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-24. We find that the administrative judge properly
considered the witnesses’ testimony and the evidence as a whole in finding that
the appellant failed to show that retaliation was a motivating factor in his
suspension. ID at 30. Because we find that the appellant failed to show that
retaliation was a motivating factor, we need not reach the issue of whether he
7 To the extent that the appellant is raising a claim of race discrimination on review, as
discussed above, it appears that the administrative judge addressed the appellant’s
testimony of racial comments, but did not credit it. ID at 28-29; PFR File, Tab 1 at 3-4.
Therefore, we find that she implicitly denied any such claim. We discern no basis to
disturb her findings.
14
showed that retaliation was a but-for cause of the suspension. See Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.8
The administrative judge correctly found that the agency established nexus and
the reasonableness of its penalty.
In addition to the requirement that the agency prove its charges by
preponderant evidence, the agency also must prove that there is a nexus, i.e., a
clear and direct relationship between the articulated grounds for the adverse
action and either the appellant’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Campbell v. Department of the Army ,
123 M.S.P.R. 674, ¶ 24 (2016). Here, the administrative judge found that the
agency established nexus between the charges of inappropriate conduct and
failure to cooperate in an agency investigation and the efficiency of the service.
ID at 25-26. The appellant does not challenge this finding on review, and we find
no basis to disturb it.
When, as here, all of the charges have been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors, and exercised management discretion within
tolerable limits of reasonableness. See Douglas v. Veterans Administration , 5
M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant to
penalty determinations). In making this determination, the Board must give due
weight to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility, but to ensure that managerial judgment has been properly
exercised. Campbell, 123 M.S.P.R. 674, ¶ 25; Douglas, 5 M.S.P.R. at 306. The
8 In his oral reply, the appellant refers to his prior EEO activity, including EEO
complaints filed in 2008, 2009, 2011, and 2014. IAF Tab 1 at 24-26. It is not clear
whether, on review, the appellant is claiming reprisal based upon a prior complaint of
disability discrimination. Assuming arguendo that the appellant’s prior complaints did
include claims of disability discrimination, the appellant would need to prove that the
retaliation was a but-for cause of the suspension at issue in this case. See Pridgen,
2022 MPSB 31, ¶¶ 45-47. We find that the appellant has not met this burden.
15
Board will modify the agency’s chosen penalty only if it finds that the agency’s
judgment clearly exceeded the limits of reasonableness. Douglas, 5 M.S.P.R.
at 306.
Here, the decision letter shows that the deciding official considered the
relevant factors including the seriousness of the appellant’s repeated misconduct,
which he found unprofessional, discourteous, and disruptive to his work and his
coworkers. IAF, Tab 6 at 64-65, 70-73. The deciding official considered that the
appellant’s misconduct was contrary to the behavior expected of a Personnel
Security Specialist, he impeded an official agency investigation, and his
misconduct could reflect adversely on the agency’s regional reputation. Id.
at 64-65. He further considered the appellant’s prior discipline for rude,
inappropriate, and unethical behavior at work: the 5-day suspension in 2006,
discussed above; a letter of reprimand and a counseling in 2011, and two 7 -day
suspensions in 2012. Id. at 64; ID at 36-37. The deciding official stated that his
confidence in the appellant was eroded. IAF, Tab 6 at 65. He further determined
that the proposed discipline fell squarely within the agency’s table of penalties,
which provided that the penalty range for a first offense of failure to cooperate
with an official investigation ranged from a written reprimand to a removal, and
that the penalty for a third offense of unprofessional and discourteous conduct
ranged from a 15-day suspension to a removal. Id.
The administrative judge found that the deciding official thoroughly
considered the relevant Douglas factors and exercised his discretion within the
tolerable limits of reasonableness in mitigating the proposed 45-day suspension to
a 40-day suspension. ID at 37-38. Recognizing that the Board must accord
proper deference to the agency’s primary discretion in managing its workforce,
we see no reason to disturb this finding. See Douglas, 5 M.S.P.R. at 306.
16
The appellant did not prove his claims of bias and abuse of discretion by the
administrative judge.
On review, the appellant argues that the administrative judge was rude,
raised her voice to him, and showed bias in favor of his female coworker.9 PFR
File, Tab 1 at 11-12, 14-15. There is a presumption of honesty and integrity on
the part of administrative judges and the Board will not infer bias based on an
administrative judge’s case-related rulings. See Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if her
comments or actions evidence a deep-seated favoritism or antagonism that would
make fair judgment impossible. Id. Even if an administrative judge was
somewhat abrupt and impatient with the appellant, such conduct would not
establish bias. Tyler v. U.S. Postal Service , 90 M.S.P.R. 545, ¶ 8 (2002). Thus,
we deny the appellant’s bias claim.
The appellant also argues that the administrative judge abused her
discretion in ruling on the admission of evidence. PFR File, Tab 1 at 4-5. For
example, he references the agency’s submitting a photograph of him with an
assistant director, which the agency alleged he showed to his female coworker to
support his assertion to her that he had a strong connection with upper
management. ID at 14-15; IAF, Tab 8 at 72. He argues that the administrative
judge abused her discretion by not allowing him to submit an unaltered group
photograph as rebuttal evidence to prove that an agency employee had deleted the
image of another manager from the photo.10 PFR File, Tab 1 at 10-12.
9 On appeal, the appellant filed a motion to have the administrative judge recuse herself,
primarily asserting his disagreement with her rulings on discovery and procedural
matters. IAF, Tab 73. The administrative judge denied his motion, finding that his
claims of bias based on her judicial remarks, rulings, and conduct in an adjudicatory
setting did not support a finding of bias or prejudice. IAF, Tab 81 at 3-4.
10 Although the appellant claims that the agency altered the photograph, we disagree.
PFR File, Tab 1 at 11-12. The photo does not appear altered as the appellant claims,
but rather is an image of a portion of the photo. IAF, Tab 8 at 72.
17
To obtain reversal of an initial decision on the ground that the
administrative judge abused her discretion in excluding evidence, the appellant
must show on review that relevant evidence, which could have affected the
outcome, was disallowed. Sanders v. Social Security Administration ,
114 M.S.P.R. 487, ¶ 10 (2010). Here, the appellant does not challenge the
finding that he showed his coworker the photo in question, and does not explain
how presenting the complete image with additional people supports his argument
that he did not engage in inappropriate conduct. PFR File, Tab 1 at 11-12. Nor
do we discern how viewing the entire photo would have caused the administrative
judge to find the agency did not prove this charge. ID at 14-16.
The appellant also appears to argue that the administrative judge violated
Rule 102 of the Federal Rules of Civil Procedure when she allowed the agency to
submit into evidence a “huge volume” of allegedly extraneous documents, emails,
and tapes, over his representative’s objection. PFR File, Tab 1 at 4. The
appellant further argues that the volume of that evidence made it impossible “for
anyone to ascertain the truth.” Id. at 5. The appellant appears to be quoting Rule
102 of the Federal Rules of Evidence, which states that the purpose of the Federal
Rules of Evidence is “to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to
the end of ascertaining the truth and securing a just determination.” Fed. R.
Evid. 102. The Board is not bound by the Federal Rules of Evidence but may
look to them for guidance. Holton v. Department of the Navy , 123 M.S.P.R. 688,
¶ 13 n.4 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018). Even if we found it
appropriate to apply Rule 102 here, it does not place any limitation on the volume
of evidence an administrative judge may admit. Fed. R. Evid. 102. The
administrative judge has wide discretion to control the proceedings in front of her
and to receive relevant evidence. Tisdell v. Department of the Air Force ,
94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41(b)(3). The appellant has
18
provided no compelling argument to support his claim that the administrative
judge’s rulings extended beyond this well-established discretion.
The appellant further argues that the administrative judge abused her
discretion when she imposed sanctions against him for his repeated failure to
identify his “prima facie defenses.” PFR File, Tab 1 at 17-18. He argues that the
sanctions were unreasonable because his representative had a sudden emergency
and notified the administrative judge. Id. He also argues that the agency spent
3 years planning to terminate him, and the administrative judge did not provide
his representative with enough time to review the voluminous documents and
tapes submitted by the agency. Id.
We find that the administrative judge did not abuse her discretion when she
imposed sanctions on the appellant. On several occasions, the administrative
judge ordered the appellant to respond to the agency’s discovery requests and the
Board’s May 25, 2016 Affirmative Defenses Order; explain his failures to
respond as required by an Order to Show Cause, dated July 21, 2016; and file
prehearing submissions. IAF, Tab 28, Tab 82 at 1-2. Based on the appellant’s
repeated failure to respond to her orders, the administrative judge sanctioned him.
ID at 26; IAF, Tab 28. She allowed the appellant to present his affirmative
defenses of harmful procedural error and discrimination (including retaliation) as
expressed in his August 1, 2016 “Response to Show Cause Order” but prohibited
him from calling any witnesses except for himself at the hearing and
supplementing the record. ID at 26; IAF, Tab 28 at 3-4. These sanctions fall
within the administrative judge’s authority under the Board’s regulations, which
permit her to impose sanctions as necessary to serve the ends of justice when, as
here, a party fails to comply with an order. See 5 C.F.R. §§ 1201.41(a), (b)
(11), 1201.43(a)(2). We therefore find that the appellant did not prove that the
administrative judge abused her discretion. Accordingly, we affirm the initial
decision as modified.
19
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
21
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
22
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Nsima_Jean_F_NY-0752-16-0244-I-1_Final_Order.pdf | 2024-03-01 | JEAN F. NSIMA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-16-0244-I-1, March 1, 2024 | NY-0752-16-0244-I-1 | NP |
2,206 | https://www.mspb.gov/decisions/nonprecedential/Lockhart_Daniel_K_AT-1221-18-0364-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL K. LOCKHART,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-1221-18-0364-W-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
aniel K. Lockhart , Saint Petersburg, Florida, pro se.
John D. Norquist , Fort Belvoir, 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
denied his request for corrective action in his individual right of action appeal.
On petition for review, he argues that he is entitled to corrective action because
he proved that the agency retaliated against him for making protected disclosures
and the agency did not show it would have removed him absent his protected
disclosures. Petition for Review (PFR) File, Tab 1 at 4-17. He also raises claims
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that may be construed as alleging that he was retaliated against for engaging in
protected activity, that he was retaliated against for filing a complaint with the
agency’s Office of Inspector General, that he was perceived as a whistleblower,
and that he disobeyed an “illegal order,” claims that were not at issue on appeal
and were not addressed in the initial decision. PFR File, Tab 1 at 4-5, 14; Initial
Appeal File (IAF), Tab 29 at 3-5, Tab 39, Initial Decision. Finally, he argues that
the agency provided misleading and false information, and the administrative
judge was biased and abused her discretion.2 PFR File, Tab 1 at 16, Tab 5 at 4,
10.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
2 The appellant submits over 200 pages of documents on review, which he asserts were
not submitted below due to his attorney’s error. PFR File, Tab 1 at 4-5, 19-223. Some
of the documents are in the record below; therefore, they are not a basis for granting the
petition for review. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980) (providing that evidence that is already a part of the record is not new).
Regarding the remaining documents, they predate the close of record below, and the
appellant does not assert that they were unavailable before that time. IAF, Tab 29
at 3-4. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has not made this
showing. See Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981) (finding
that the appellant is responsible for the errors of her chosen representative).2
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We AFFIRM the initial decision.
We supplement the initial decision to address the appellant’s claims regarding the
conduct of the agency and the administrative judge during the proceedings below.
The appellant did not show that the agency provided false or intentionally
misleading information to the Board.
The appellant argues that “[t]he [a]gency’s response to [his] petition for
review makes several mischaracterization[s] and false statements . . . to mislead
and deceive the Board.” PFR File, Tab 5 at 4. Specifically, he argues that the
agency is “mislead[ing]” the Board by arguing that his evidence does not show
that he made protected disclosures. Id. at 4-10. Although the appellant disagrees
with the agency’s assertions, he has not shown that the agency provided false
information to the Board. Further, the statements of a party’s representative in a
pleading are not evidence. Hendricks v. Department of the Navy , 69 M.S.P.R.
163, 168 (1995). Thus, the appellant has not shown that the administrative judge
or the Board erred in relying on the evidence in the record in reaching a decision
on this matter. Accordingly, the appellant’s claims do not provide a basis for
granting his petition for review.
The appellant did not show that the administrative judge abused her discretion in
denying his motion to compel discovery.
The appellant also alleges that the administrative judge improperly denied
his motion to compel additional interrogatories and argues only generally that the
information he sought would likely have supported his claims that his
performance evaluations were unfounded and fabricated. PFR File, Tab 1
at 15-16. The administrative judge denied the appellant’s motion to compel the
agency’s response to his fifth set of interrogatories because they exceeded the
Board’s interrogatory limit. IAF, Tab 24 at 5, 59-69, Tab 28; see 5 C.F.R.
§ 1201.73(e)(1) (providing that, absent prior approval by the judge,3
interrogatories served by parties upon another party or a nonparty may not exceed
25 in number, including all discrete subparts).
The appellant has not shown that the administrative judge abused her
discretion in denying his motion to compel. 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 alleges that the discovery
sought would have produced information challenging his supervisors’ bases for
demoting him and proving that other management officials had knowledge of his
disclosures. PFR File, Tab 1 at 14-15. Based on the appellant’s arguments, this
information likely relates to his burden of proving contributing factor and the
agency’s burden of refuting a prima facie case of reprisal, PFR File, Tab 1
at 15-16, which do not relate to the dispositive issue—the appellant’s failure to
prove that he made a protected disclosure. Therefore, the administrative judge’s
decision to deny his motion to compel for review is not reversible error.
The appellant’s other claims of adjudicatory error are not a basis for granting his
petition for review.
Finally, the appellant requests that the administrative judge be disqualified
from future proceedings “based on the demonstrated pattern of abuse of
discretion.” PFR File, Tab 1 at 16. 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 her comments or actions evidence “a deep-seated favoritism
or antagonism that would make fair judgment impossible.” Bieber v. Department
of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). The appellant’s claims, which do not relate to4
any extrajudicial conduct by the administrative judge, neither overcome that
presumption, nor establish a deep-seated favoritism or antagonism.
Accordingly, we discern no basis for granting the appellant’s petition for
review.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Lockhart_Daniel_K_AT-1221-18-0364-W-1_Final_Order.pdf | 2024-03-01 | DANIEL K. LOCKHART v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-1221-18-0364-W-1, March 1, 2024 | AT-1221-18-0364-W-1 | NP |
2,207 | https://www.mspb.gov/decisions/nonprecedential/Taylor_SamSF-0752-20-0454-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAM TAYLOR,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-20-0454-I-2
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc E. Pasekoff , Esquire, Ed Passman , Esquire, Nicole Davis , and
Elaine L. Fitch , Esquire, Washington, D.C., for the appellant.
James S. Brown , Portland, Oregon, for the agency.
Nayoka L. Irving , 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 for misconduct. On petition for review, the appellant
contests both charges, as well as the administrative judge’s analyses of nexus,
penalty, and the whistleblower defense. 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 appellant
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to acknowledge that the proposing and deciding officials had some
motive to retaliate for the appellant’s disclosures, we AFFIRM the initial
decision.
The appellant has raised numerous evidentiary challenges to the
administrative judge’s findings on the issues described above, but after a careful
review of the record, we find that the administrative judge’s conclusions on the
majority of these matters are supported by the evidence and, where applicable,
appropriate demeanor-based credibility determinations. Nevertheless, we agree
with the appellant’s argument that the proposing and deciding officials had some
institutional motivation to retaliate against him for his protected disclosures. See
Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012).
However, even considering this retaliatory motive, we agree with the
administrative judge’s ultimate conclusion that the agency proved by clear and
convincing evidence that it would have removed the appellant notwithstanding his
protected disclosures, especially in light of the strong legitimate reasons that the
agency put forth in support of its removal action.
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.
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Taylor_SamSF-0752-20-0454-I-2_Final_Order.pdf | 2024-03-01 | SAM TAYLOR v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-20-0454-I-2, March 1, 2024 | SF-0752-20-0454-I-2 | NP |
2,208 | https://www.mspb.gov/decisions/nonprecedential/Robinson_Clifford_L_SF-0752-18-0169-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFFORD L. ROBINSON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-18-0169-I-1
DATE: March 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
lifford L. Robinson , Canton, Georgia, pro se.
Stephanye Snowden , 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 resignation appeal for lack of jurisdiction. On
petition for review, he argues that the administrative judge did not understand the
evidence and that he did not engage in the misconduct alleged in the agency
notice of proposed removal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | Robinson_Clifford_L_SF-0752-18-0169-I-1_Final_Order.pdf | 2024-03-01 | CLIFFORD L. ROBINSON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-18-0169-I-1, March 1, 2024 | SF-0752-18-0169-I-1 | NP |
2,209 | https://www.mspb.gov/decisions/nonprecedential/Sepulveda_Roberta_SF-0752-20-0564-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTA SEPULVEDA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0564-I-2
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah Song , Esquire, Stephanie Dominguez , Esquire, and Stephen
Millard , Grand Terrace, California, for the appellant.
J.R. Pritchett , McCammon, Idaho, for the appellant.
Catherine V. Meek , Esquire, Mariana Aguilar , Esquire, and
W. Jason Jackson , 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
sustained the appellant’s removal for unacceptable conduct. On petition for
review, the appellant reiterates her argument that the agency failed to satisfy due
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
process requirements because it failed to provide her with notice of the charge,
specifically, that the proposed removal notice did not contain sufficient
specificity and she was not provided with the materials relied on by the agency.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
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 | Sepulveda_Roberta_SF-0752-20-0564-I-2 Final Order.pdf | 2024-02-29 | ROBERTA SEPULVEDA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0564-I-2, February 29, 2024 | SF-0752-20-0564-I-2 | NP |
2,210 | https://www.mspb.gov/decisions/nonprecedential/Santiago_Willie_R_SF-0752-21-0084-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIE R. SANTIAGO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-21-0084-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Willie R. Santiago , Pahoa, Hawaii, pro se.
Sara Adibisedeh , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant argues that the administrative judge erred in determining that
his start date was November 10, 2018, the date he was converted to a career
position. Petition for Review (PFR) File, Tab 1 at 3. Rather, he argues, his start
date for purposes of jurisdiction should be either the day his hiring was
announced, July 30, 2018, or the date when he first started in a temporary
position with the agency, August 18, 2018. Id. Without making a determination,
we find that, even using the appellant’s argued start dates, he has failed to
establish jurisdiction over his appeal.
A U.S. Postal Service employee may file a Board appeal under chapter 75
of Title 5 of the U.S. Code only if he is covered by 39 U.S.C. § 1005(a) or
5 U.S.C. § 7511(a)(1)(B). See 5 U.S.C. § 7511(b)(8); Gordon-Cureton v. U.S.
Postal Service, 105 M.S.P.R. 165, ¶ 6 (2007). Thus, as correctly stated by the
administrative judge, to appeal an adverse action under chapter 75, a U.S. Postal
Service employee must meet the following criteria: (1) be a preference eligible, a
management or supervisory employee, or an employee engaged in personnel work
in other than a purely nonconfidential clerical capacity; and (2) have completed
1 year of current continuous service in the same or similar positions. Initial
Appeal File (IAF), Tab 11, Initial Decision (ID) at 4; Gordon-Cureton,
105 M.S.P.R. 165, ¶ 6.2
Here, it is undisputed that the appellant is not preference eligible. IAF,
Tab 1 at 1, 6, 27. Furthermore, the appellant was a Sales and Services
Distribution Associate and has not alleged that he was a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity. Id. at 1, 3, 6, 27. Further still, even
using the earliest start date as argued by the appellant, July 30, 2018, he has not
demonstrated that he completed 1 year of current continuous service prior to his
separation on February 6, 2019. Id. at 3, 5. The appellant’s alleged start dates,
argued seemingly in attempt to establish that he was no longer a probationary
employee, do not affect this analysis. Accordingly, we agree with the
administrative judge that the appellant failed to raise a nonfrivolous allegation
that he was a U.S. Postal Service employee entitled to appeal his removal under
5 U.S.C. chapter 75. ID at 4-5.
The appellant additionally argues the merits of his separation and asserts
discrimination based on age and ethnic origin. PFR File, Tab 1 at 5-9. In the
absence of an otherwise appealable action, the Board lacks jurisdiction to
consider the merits of the appellant’s separation or his claims of discrimination.
See Burton v. Department of the Air Force , 118 M.S.P.R. 210, ¶ 16 (2012)
(recognizing that the Board lacks authority to address the merits of an appeal
without first finding jurisdiction); Hicks v. U.S. Postal Service , 114 M.S.P.R.
232, ¶ 13 (2010) (finding the Board lacks jurisdiction to consider claims of
discrimination absent an otherwise appealable action). The appellant also
submits alleged new evidence on review, further arguing the merits of his
separation and in attempt to establish his argued start date. PFR File, Tab 1
at 11-39. As discussed above, these issues are immaterial to the issue of the
Board’s jurisdiction and thus we decline to consider them on review. See Russo
v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding the Board will
not grant a petition for review based on new evidence absent a showing that it is3
of sufficient weight to warrant an outcome different from that of the initial
decision).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Santiago_Willie_R_SF-0752-21-0084-I-1__Final_Order.pdf | 2024-02-29 | WILLIE R. SANTIAGO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-21-0084-I-1, February 29, 2024 | SF-0752-21-0084-I-1 | NP |
2,211 | https://www.mspb.gov/decisions/nonprecedential/Roberts_Stacey_H_AT-0752-18-0761-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY H. ROBERTS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-18-0761-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Roberts , Warner Robins, Georgia, for the appellant.
James M. Reed , Esquire Clearwater, 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
dismissed her appeal for lack of jurisdiction. On petition for review, the
appellant states that she is awaiting additional documentation related to her
ongoing criminal case and requests additional time to gather those documents but
does not address the dispositive jurisdictional question. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.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 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading. Petition for Review File, Tab 5. In the motion, the
appellant appears to argue that that the “Fourth Amendment,” Federal Rule of Evidence
52, and title VII of the Civil Rights Act of 1964 (codified in pertinent part at 42 U.S.C.
§ 2000e-16) support her request to submit new evidence. Id. Nevertheless, she has not
provided any indication of what new evidence she would like to submit, if any, nor has
she explained how any new evidence would have any bearing on the indefinite
suspension action at issue in this appeal. Accordingly, the motion is denied.
See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
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 | Roberts_Stacey_H_AT-0752-18-0761-I-1__Final_Order.pdf | 2024-02-29 | STACEY H. ROBERTS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-18-0761-I-1, February 29, 2024 | AT-0752-18-0761-I-1 | NP |
2,212 | https://www.mspb.gov/decisions/nonprecedential/McDermott_Lance_SF-0752-20-0705-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE MCDERMOTT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0705-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance McDermott , Seattle, Washington, pro se.
Steven B. Schwartzman , Esquire, Seattle, 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
dismissed his involuntary disability retirement appeal for lack of jurisdiction. On
petition for review, some of the appellant’s arguments include assertions that the
administrative judge and agency counsel exhibited bias or misconduct, he has
been subject to discrimination and reprisal, his disability retirement was based on
misinformation and deception, he withdrew his disability retirement, and he never
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
elected to effectuate his 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 erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McDermott_Lance_SF-0752-20-0705-I-1_Final_Order.pdf | 2024-02-29 | LANCE MCDERMOTT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0705-I-1, February 29, 2024 | SF-0752-20-0705-I-1 | NP |
2,213 | https://www.mspb.gov/decisions/nonprecedential/Daoud_Khalil_I_SF-0752-18-0378-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KHALIL I. DAOUD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-18-0378-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Jules F. Miller , Esquire, Irvine, California, for the appellant.
Scott Zielinski , San Diego, 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 from his position as a Supervisor in Customer Service at the
Irvine, California Post Office for unacceptable conduct and lack of candor.
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,
except as expressly MODIFIED to find that, in addition to failing to show that the
deciding official’s consideration of information that was not initially disclosed to
the appellant constituted a due process violation, the appellant did not show that
the deciding official’s consideration of this information constituted harmful
procedural error.
On review, the appellant argues that the administrative judge incorrectly
considered as a potential due process violation the deciding official’s testimony
that the appellant’s conduct, as described under the agency’s charge of
unacceptable conduct, was tantamount to “stealing” time, rather than as evidence
that the agency charged the appellant with theft. Petition for Review (PFR) File,
Tab 1 at 6-8. He also argues that the administrative judge failed to treat the
agency’s charges of unacceptable conduct and lack of candor as charges of
falsification, and that the agency failed to prove the element of intent necessary to
establish falsification. Id. at 9-10. The appellant further asserts that the
administrative judge made errors in her factual and credibility findings, and that
she erred in applying the law to the facts of this case in sustaining the charges and
3
the penalty of removal.2 Id. at 10-20. Our review of the record reflects that the
administrative judge correctly sustained the charges of unacceptable conduct and
lack of candor, found that the appellant did not show that the agency failed to
provide him with sufficient due process or that his equal employment opportunity
(EEO) activity was a motivating factor in his removal,3 and determined that the
agency proved a nexus between the appellant’s conduct and the efficiency of the
service and that the penalty of removal fell within tolerable limits of
reasonableness. Initial Appeal File (IAF), Tab 21, Initial Decision (ID).
After the administrative judge found that the deciding official considered
information ex parte in determining that the penalty of removal was reasonable,
but that the agency notified the appellant of the information and provided him
with an opportunity to reply, therefore providing him with sufficient due process,
she did not consider whether the deciding official’s consideration of this
information constituted harmful procedural error. ID at 16-18. A procedural
error that does not amount to a due process violation must be analyzed under the
harmless error standard. Ward v. U.S. Postal Service , 634 F.3d 1274, 1281-82
(Fed. Cir. 2011). To prove harmful procedural error, the appellant must show
both that the agency committed procedural error and that the error was harmful.
Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶ 7 (2015). Harmful error
2 The agency submitted an opposition to the appellant’s petition for review that is
untimely filed by over 1 year; to date, the agency has not provided an explanation for
the significant delay. PFR File, Tab 3; see 5 C.F.R. § 1201.114(e) (providing that a
response to a petition for review must be filed within 25 days of the date of service of
the petition). We decline to consider the agency’s opposition because we find that it is
untimely filed without good cause shown. See 5 C.F.R. §§ 1201.12, 1201.114(g)
(providing that the Board may waive the time limit to file a response to a petition for
review only upon a showing of good cause for the delay in filing). As such, we decline
to consider the appellant’s reply to the agency’s opposition. See 5 C.F.R. § 1201.114(a)
(4) (providing that a reply to a response to a petition for review is limited to the factual
and legal issues raised by another party in its response to the petition).
3 Because we affirm the administrative judge’s finding that the appellant failed to prove
that his EEO activity was a motivating factor in his removal, we do not reach the issue
of whether retaliation was a “but-for” cause of the removal decision. See Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 48.
4
cannot be presumed; an agency error is harmful only where the record shows that
the error was likely to have caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the error. Id. To the
extent that the deciding official’s consideration of this information constituted
procedural error, the appellant did not show that the error was harmful. The
appellant received notice of the deciding official’s intent to consider the
information and an opportunity to respond during his oral reply, and he has not
otherwise provided evidence that the error caused the deciding official to reach a
different conclusion than he otherwise would have made regarding the penalty.
IAF, Tab 15 (testimony of the deciding official). Accordingly, we affirm the
initial decision as modified herein.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Daoud_Khalil_I_SF-0752-18-0378-I-1__Final_Order.pdf | 2024-02-29 | KHALIL I. DAOUD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-18-0378-I-1, February 29, 2024 | SF-0752-18-0378-I-1 | NP |
2,214 | https://www.mspb.gov/decisions/nonprecedential/Anguiano_Efren_Z_CH-0752-18-0553-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EFREN Z. ANGUIANO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0553-I-1
DATE: February 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
Waite P. Stuhl , Esquire, St. Louis, Missouri, for the appellant.
James Gursky , Potomac, Maryland, 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 that
dismissed the appeal of his removal for lack of Board jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND this case to the Central Regional
Office to hold a jurisdictional hearing in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On August 13, 2018, the agency removed the appellant from the position of
EAS-23 International Mail Security Specialist for failing to maintain a condition
of employment due to his inability to hold a security clearance. Initial Appeal
File (IAF), Tab 1 at 6-7. At the time of his removal, the appellant, a
nonpreference eligible, had served in this position for nearly 5 years. IAF, Tab 1
at 1; Petition for Review (PFR) File, Tab 1 at 11.
The appellant filed a Board appeal contesting his removal and requested a
hearing. IAF, Tab 1 at 2. Due to the appellant’s employment at the U.S. Postal
Service, a question of whether the Board had jurisdiction over the appeal existed.
The administrative judge issued an order directing both parties to file argument
and evidence on the issue. IAF, Tab 3. In response, the appellant averred that he
held a supervisory and management position for at least 1 year continuously at
the time of his removal, resulting in Board jurisdiction over his appeal. IAF,
Tab 7 at 1-2. The agency objected by contending that the appellant did not raise a
nonfrivolous allegation evidencing Board jurisdiction. IAF, Tab 9 at 4-13. On
September 28, 2018, the administrative judge issued an initial decision dismissing
the appeal, holding that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction, meaning that he was not entitled to a jurisdictional hearing.
IAF, Tab 10, Initial Decision (ID) at 1-6. The appellant then filed a petition for
review, and the agency responded in opposition. PFR File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). A Postal Service
employee may file a Board appeal of an agency action taken under chapter 75,
such as a removal, only if he is covered by 39 U.S.C.§ 1005(a) or 5 U.S.C.
§ 7511(a)(1)(B). 5 U.S.C. § 7511(b)(8). Thus, to appeal a removal under2
chapter 75, a Postal employee (1) must be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) must have completed 1 year of
current continuous service in the same or similar positions. 39 U.S.C.§ 1005(a)
(4)(A); 5 U.S.C. § 7511(a)(1)(B); McCandless v. Merit Systems Protection Board ,
996 F.2d 1193, 1198-99 (Fed. Cir. 1993).
Before the administrative judge, the appellant, a nonpreference eligible,
claimed that he served in a supervisor and management position for at least 1 year
continuously at the time of his removal. IAF, Tab 7 at 1-2. For purposes of
determining whether a nonpreference eligible Postal Service employee is a
“supervisor” who may appeal an adverse action to the Board, the two particular
functions that are most often substantially determinative are (1) the authority to
discharge or discipline another employee, or effectively to recommend that
another employee be disciplined or discharged; and (2) the employee’s authority
to responsibly direct the actions of other employees. Bolton v. Merit Systems
Protection Board , 154 F.3d 1313, 1317-18 (Fed. Cir. 1998). The definition of
“manager” for these purposes is one who formulates and effectuates management
policies by expressing and making operative the decisions of their employer. Id.
at 1318.
Prior to the issuance of the initial decision, the appellant did not receive
sufficient information on what was required of him to establish an appealable
jurisdictional issue.
An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643 -44 (Fed. Cir. 1985). An appellant bears the burden to
establish jurisdiction over his adverse action appeal by preponderant evidence.
Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007); 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Where an appellant sets forth a nonfrivolous allegation of
Board jurisdiction, he is entitled to a hearing on the jurisdictional question.3
Lara v. Department of Homeland Security , 101 M.S.P.R. 190, ¶ 7 (2006); see
Burgess, 758 F.2d at 643-44. A nonfrivolous allegation is an allegation of fact
which, if proven, could establish a prima facie case of Board jurisdiction over the
appeal. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994); 5 C.F.R.
§ 1201.4(s). An allegation generally will be considered nonfrivolous when, under
oath or penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s).
In this case, as the appellant argues in his petition for review, the
Jurisdiction Order issued by the administrative judge failed to provide him with
explicit information on his requirement to establish an appealable jurisdictional
issue. IAF, Tab 3; PFR File, Tab 1 at 5-9. Specifically, the order did not
mention the nonfrivolous allegation standard that the appellant had to meet to
attain a jurisdictional hearing. IAF, Tab 3; see Scott v. Department of Justice ,
105 M.S.P.R. 482, ¶ 5 (2007) (noting that the jurisdictional notice provided to the
appellant was inadequate because it did not offer any explicit information about
the argument and evidence that the appellant in the case had to present in order to
nonfrivolously allege Board jurisdiction). Instead, the order focused exclusively
on how the appellant could establish by preponderant evidence his status as a
preference eligible, despite the fact that he previously indicated that he was not
preference eligible. IAF, Tab 1 at 1, Tab 3 at 2-3. There was no information
provided to the appellant on how to set forth sufficient argument and evidence to
raise a nonfrivolous allegation that he served in a supervisory or management
position at the time of his removal, which is where he grounded his argument in
Board jurisdiction. IAF, Tab 3, Tab 7 at 1. The Board has held that an appellant
cannot be expected to “fight a fog of generality” that is created by an insufficient
notice of what must be alleged in order to receive a jurisdictional hearing. Scott,
105 M.S.P.R. 482, ¶ 5. 4
Nevertheless, the failure of an administrative judge to provide an appellant
with the proper Burgess notice can be cured if an agency’s pleadings contain the
notice that was lacking or if the initial decision puts an appellant on notice of
what he must do to establish jurisdiction, thus affording him the opportunity to
meet the jurisdictional burden on review. Id., ¶ 6. In this case, notice of the
appropriate jurisdictional standard is piecemealed between the agency’s response
to the Jurisdiction Order and the initial decision.2 See generally IAF, Tab 9
at 4-12; ID at 1-6. In his petition for review, the appellant proffered argument
and evidence to meet the nonfrivolous allegation of Board jurisdiction standard,
which we will now consider. PFR File, Tab 1 at 4-12.
The appellant set forth a nonfrivolous allegation of Board jurisdiction, entitling
him to a jurisdictional hearing on the appeal of his removal.
In his petition for review, the appellant submitted a sworn affidavit laying
out his claim that he served in a supervisory position at the time that he was
removed from the agency.3 PFR File, Tab 1 at 11-12. Particularly, the appellant
stated that his supervisory responsibilities over seven employees consisted of
hiring, directing workload, disciplining, and conducting performance evaluations.
Id. These are the types of functions that fall under the purview of a “supervisor”
that the Board considers determinative when assessing jurisdiction over adverse
action appeals of Postal Service employees. Bolton, 154 F.3d at 1317-18. The
appellant’s rather specific claim regarding holding a supervisory position at the
time of his removal is made under the penalty of perjury, is plausible on its face,
and is material to the legal jurisdictional issue present in this appeal. If the
appellant’s contention in his sworn affidavit is proven, then he will be deemed a
2 The appellant did not have the opportunity to respond to the agency’s response to the
Jurisdiction Order prior to the issuance of the initial decision. IAF, Tab 3 at 3-4.
3 On review, the appellant advances the claim that he served in a supervisory position
and not in a management position. PFR File, Tab 1 at 11-12. 5
supervisor, and it would establish Board jurisdiction over the appeal of his
removal.4
Therefore, after receiving explicit information on what was required of him
to establish an appealable jurisdictional issue, the appellant set forth a
nonfrivolous allegation of Board jurisdiction. See Smirne v. Department of the
Army, 115 M.S.P.R. 51, ¶ 11 (2010) (holding that the appellant’s sworn statement
was sufficient to constitute a nonfrivolous allegation of Board jurisdiction). The
appellant is now entitled to a jurisdictional hearing on the matter. See Walker v.
Department of the Army , 119 M.S.P.R. 391, ¶ 17 (2013) (remanding for a
jurisdictional hearing as the appellant made a nonfrivolous allegation of Board
jurisdiction).
ORDER
For the reasons discussed above, we remand this case to the Central
Regional Office to hold a jurisdictional hearing in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 It remains undisputed that the appellant is a nonpreference eligible that served in his
position for at least 1 year continuously at the time of his removal. IAF, Tab 1 at 1,
Tab 7 at 2, Tab 9 at 5. 6 | Anguiano_Efren_Z_CH-0752-18-0553-I-1 Remand Order.pdf | 2024-02-29 | EFREN Z. ANGUIANO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0553-I-1, February 29, 2024 | CH-0752-18-0553-I-1 | NP |
2,215 | https://www.mspb.gov/decisions/nonprecedential/Shannon_Deborah_L_AT-0831-21-0060-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH LOUISE SHANNON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-21-0060-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah Louise Shannon , Crossville, Tennessee, pro se.
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 from the Office of Personnel Management
finding that she was not eligible for survivor benefits because she had been
married to her late husband for less than 9 months prior to his passing. On
petition for review, the appellant argues that she and her husband lived together
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
“as man and wife” for more than 2 years prior to their marriage, and that she is
entitled to the survivor benefits. Petition for Review (PFR) 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.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
2 Regarding the appellant’s argument that she and the deceased former Federal
employee were married at common law, as the administrative judge found, Tennessee
does not recognize such marriages. Guzman v. Alvares , 205 S.W.3d 375, 379 (Tenn.
2006). Furthermore, the Board cannot award benefits that an individual is not entitled
to by law. Nelson v. Office of Personnel Management , 59 M.S.P.R. 612, 617 (1993),
aff’d, 48 F.3d 1238 (Fed. Cir. 1995) (Table) (explaining that OPM could not be
estopped from denying former spouse survivor benefits, regardless of equities, because
she was not entitled to such benefits under applicable law).
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals 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. 115-195,5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Shannon_Deborah_L_AT-0831-21-0060-I-1__Final_Order.pdf | 2024-02-29 | DEBORAH LOUISE SHANNON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-21-0060-I-1, February 29, 2024 | AT-0831-21-0060-I-1 | NP |
2,216 | https://www.mspb.gov/decisions/nonprecedential/Muhleisen_Shirley_DA-0841-20-0216-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY MUHLEISEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-20-0216-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley Muhleisen , Marrero, Louisiana, pro se.
Tynika Faison Johnson , 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 of an overpayment reconsideration decision from the Office
of Personnel Management (OPM) as untimely filed without good cause. On
petition for review, the appellant suggests that her appeal was untimely due to a
combination of her financial situation, her health, and her belief that further
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
instructions were forthcoming from OPM. Generally, we grant petitions such as
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 | Muhleisen_Shirley_DA-0841-20-0216-I-1__Final_Order.pdf | 2024-02-29 | SHIRLEY MUHLEISEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-20-0216-I-1, February 29, 2024 | DA-0841-20-0216-I-1 | NP |
2,217 | https://www.mspb.gov/decisions/nonprecedential/Daoud_Khalil_I_SF-844E-21-0314-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KHALIL I. DAOUD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-21-0314-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.
Linnette L. 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 of the Office of Personnel Management
(OPM) dismissing his application for disability retirement under the Federal
Employees’ Retirement System as untimely filed. On petition for review, the
appellant argues that OPM did not have the legal authority to rescind a prior
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision on the merits of his application and that the decisions upon which
the administrative judge relied to support the finding that his separation date was
the effective date stated in the removal decision are inapplicable or otherwise not
binding. The appellant also argues that the administrative judge erred in finding
that he was not entitled to equitable tolling and waiver of the 1-year filing
deadline. Generally, we grant petitions such as 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).
On review, the appellant argues that 5 C.F.R. § 844.203(c)(2) limits OPM’s
authority to rescind its November 25, 2018 initial decision, which found that he
did not meet the criteria for entitlement to disability retirement benefits, and issue
a new decision finding his application untimely filed. We have reviewed the
regulation and agree with the administrative judge that it does not prohibit OPM’s
actions. Initial Appeal File (IAF), Tab 23, Initial Decision (ID) at 7. The
appellant has not cited a regulation that precludes OPM from rescinding an initial
decision under the facts of this case, and we are unaware of one. We also agree
2 The appellant’s appeal of his removal, Daoud v. U.S. Postal Service , MSPB Docket
No. SF-0752-18-0378-I-1, was addressed in a separate decision.2
with the administrative judge that, while the U.S. Postal Service retains
employees on its rolls after they have been removed, the removal is effective on
the date set in the decision notice and the timeliness of a subsequent act by the
appellant is determined from the effective date.3 ID at 5-6; see Hopkins v. U.S.
Postal Service, 108 M.S.P.R. 25, ¶ 9 (2008); McNeil v. U.S. Postal Service ,
98 M.S.P.R. 18, ¶ 9 (2004). Thus, the administrative judge properly found that
the appellant’s disability retirement application was untimely filed.4 Finally,
regarding the appellant’s argument about equitable tolling, neither the Board nor
its reviewing court in cases such as this has addressed, in a precedential decision,
whether the doctrine of equitable tolling can apply to the untimely filing of a
disability retirement application.5 See Winchester v. Office of Personnel
Management, 449 F. App’x 936, 938-39 (Fed. Cir. 2011); Caesar v. Office of
Personnel Management , MSPB Docket No. DC-844E-17-0486-I-1, Final Order
(Apr. 27, 2022); Johnson v. Office of Personnel Management , MSPB Docket
No. CH-844E-14-0449-I-1, Final Order (Apr. 24, 2015). We need not resolve
3 The appellant’s application for disability retirement was received by OPM on
August 14, 2020, more than 1 year after his separation from Federal service on March 9,
2018; thus, his application was untimely filed. The administrative judge considered the
date of the appellant’s filing to be August 8, 2020 (the date he submitted his
application) rather than August 14, 2020 (the date OPM received his application). IAF,
Tab 7 at 121; ID at 6. The administrative judge’s error did not prejudice the appellant
because he correctly determined that the appellant’s application was untimely filed. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).
4 We recognize that the Board has not addressed in a precedential decision whether the
reasoning set forth in Hopkins and McNeil applies to a retirement appeal such as the
instant case. The Board has addressed that issue in a nonprecedential decision, Childs
v. Office of Personnel Management , MSPB Docket No. CH-831E-13-0002-I-2, Final
Order, ¶ 6 (Jan. 12, 2015), but such decisions are not binding precedent, 5 C.F.R.
§ 1201.117(c)(2). Although the decision in Childs does not constitute binding
precedent, like the administrative judge, we agree with the Board’s reasoning in that
case and discern no error in the administrative judge adopting the reasoning. ID at 5-6.
5 We have considered the appellant’s argument that the filing deadline should be
waived, but agree with the administrative judge’s reasoning. ID at 7-10.3
that question in this appeal because, if the doctrine could apply, we agree with the
administrative judge that the appellant failed to show that it should be applied
under the circumstances of this appeal. ID at 10-12; see Heimberger v.
Department of Commerce , 121 M.S.P.R. 10, ¶ 10 n.2 (2014).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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. 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 | Daoud_Khalil_I_SF-844E-21-0314-I-1 Final Order.pdf | 2024-02-29 | KHALIL I. DAOUD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-21-0314-I-1, February 29, 2024 | SF-844E-21-0314-I-1 | NP |
2,218 | https://www.mspb.gov/decisions/nonprecedential/Blochowicz_Jeffrey_M_AT-0752-18-0520-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY M. BLOCHOWICZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-18-0520-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey M. Blochowicz , Evans, Georgia, pro se.
Bradley Flippin , Nashville, 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 appeal for lack of jurisdiction. On petition for review, the appellant
disputes the administrative judge’s jurisdictional findings. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
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 action3
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 | Blochowicz_Jeffrey_M_AT-0752-18-0520-I-1__Final_Order.pdf | 2024-02-29 | JEFFREY M. BLOCHOWICZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-18-0520-I-1, February 29, 2024 | AT-0752-18-0520-I-1 | NP |
2,219 | https://www.mspb.gov/decisions/nonprecedential/Oetzel_Jessica_L_DC-1221-21-0518-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSICA L. OETZEL,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-21-0518-W-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William Fuller Stoddard , Esquire, and Debra Mosley Evans , 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 denied corrective action in her Individual Right of Action appeal .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except to MODIFY the
administrative judge’s analysis of the second of the factors set forth in Carr v.
Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) ,
we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
In denying the appellant’s request for corrective action, the administrative
judge found that the appellant’s report of a missed inspection on a propeller shaft
constituted a protected disclosure of a violation of an agency rule or regulation,
and that the appellant established that her disclosure was a contributing factor in
a personnel action, i.e., her transfer to a different project. Initial Appeal File
(IAF), Tab 28, Initial Decision (ID) at 3-7. Nevertheless, the administrative
judge found, pursuant to an analysis of the Carr factors, that the agency proved
by clear and convincing evidence that it would have transferred the appellant
absent her disclosure. Specifically, the administrative judge found that there was
strong evidence in support of the appellant’s transfer, that the officials who
transferred the appellant were not motivated by retaliation, and that the agency
also transferred similarly situated individuals who were not whistleblowers. ID2
at 8-11. On review, the appellant challenges the administrative judge’s findings
regarding each of the Carr factors.2 Petition for Review File, Tab 1.
We find that the appellant’s claims on review regarding the administrative
judge’s analysis of the first and third Carr factors do not warrant disturbing the
initial decision. However, we modify the administrative judge’s analysis of the
second Carr factor to find that the evidence shows that one of the two officials
responsible for the appellant’s transfer, the welding shop Surface Craft Director,
had a motive to retaliate against the appellant due to her disclosure.
The administrative judge failed to acknowledge in the initial decision that
the Surface Craft Director was the appellant’s third-level supervisor at the time of
her disclosure and was also responsible for welding operations on propeller shafts
at the shipyard. IAF, Tab 18 at 67, Tab 26, Hearing Recording (HR) (testimony
of the Surface Craft Director). The administrative judge also failed to credit
undisputed documentary evidence and witness testimony establishing that the
missed inspection which the appellant disclosed required 104 man hours of work
—excluding lifting and transporting the shaft—to remedy, and delayed
refurbishing operations on the shaft by approximately 1 week. IAF, Tab 11
at 20-23; HR (testimony of the Mechanical Engineer). It is fair to infer that the
appellant’s disclosure of the welding shop’s failure to adhere to proper procedure,
as well as the consequences of that failure, reflected poorly on the Surface Craft
Director in his capacity as manager of shaft welding and thus established some
retaliatory motive on his part. See Carr, 185 F.3d at 1322-23 (finding motive to
retaliate based on criticisms of the management of the office for which the acting
official had responsibility); Chavez v. Department of Veterans Affairs ,
2 In determining whether an agency has shown by clear and convincing evidence that it
would have taken the same personnel action in the absence of whistleblowing, the
Board will consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on the part
of the agency officials who were involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr, 185 F.3d at 1323. 3
120 M.S.P.R. 285, ¶ 33 (2013) (finding that an appellant’s criticisms reflecting on
her managers’ capacities as managers and employees was sufficient to establish a
substantial retaliatory motive).
Nevertheless, considering the totality of the evidence relevant to the Carr
factors, the agency still proved by clear and convincing evidence that it would
have taken the same action absent the appellant’s disclosure. On balance,
the Surface Craft Director’s inferred motive to retaliate does not outweigh the
strength of the agency’s reasons for transferring the appellant—particularly her
expertise at reviewing welding documentation—as well as of the agency’s
evidence of its routine transfer of welding shop work leaders who were not
whistleblowers. HR (testimony of the Surface Craft Director, testimony of the
Submarine Director). In sum, the appellant’s claims on review thus do not justify
disturbing the administrative judge’s conclusion that she is not entitled to
corrective action.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Oetzel_Jessica_L_DC-1221-21-0518-W-1_Final_Order.pdf | 2024-02-29 | JESSICA L. OETZEL v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-21-0518-W-1, February 29, 2024 | DC-1221-21-0518-W-1 | NP |
2,220 | https://www.mspb.gov/decisions/nonprecedential/Graham_Ernest_C_DC-0752-17-0577-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNEST C. GRAHAM,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-17-0577-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid A. Branch , Esquire, Washington, D.C., for the appellant.
Bridget Karns , 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).
2
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Prior to his removal, the appellant was employed by the agency as a Utility
Systems Repair Operator at the Washington Navy Yard. Initial Appeal File
(IAF), Tab 1 at 1. On August 15, 2016, the agency issued its decision to suspend
the appellant indefinitely based on reasonable cause to believe a crime had been
committed for which imprisonment may be imposed.2 IAF, Tab 3 at 93-96. In
November 2016, a Superior Court judge in Washington, D.C., acquitted the
appellant of the crime of “attempted threats.” IAF, Tab 15 at 21, 33. On
December 8, 2016, the agency proposed his removal based on the following
charges: (1) sleeping on duty on six different incidents between February and
April 2016; (2) falsification of log sheets on February 15, 2016, when he filled
out the log sheets without first checking the readings on the boiler equipment; and
(3) inappropriate comments to his coworker on April 18, 2016, implying physical
harm to both his coworker and his supervisor while using expletives and
references to race. IAF, Tab 3 at 61-65. On May 4, 2017, the agency issued a
decision letter on its proposed removal, sustaining the charges and finding that
removal was an appropriate penalty. IAF, Tab 3 at 19-24.
2 The appellant’s indefinite suspension is the subject of a previously filed and
separately adjudicated appeal, Graham v. Department of the Navy , MSPB Docket No.
DC-0752-16-0889-I-1.
3
The appellant filed this appeal of his removal with the Board. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision affirming
the removal. IAF, Tab 22, Initial Decision (ID) at 8. She found that the agency
proved all three charges. ID at 4-6. She further found that the agency’s action
promoted the efficiency of the service and removal was a reasonable penalty for
the sustained charges. ID at 6-7. The administrative judge also concluded that
the appellant did not prove his affirmative defenses of discrimination on the basis
of age, race, and retaliation for prior Equal Employment Opportunity (EEO)
activity.3 ID at 8; IAF, Tab 19 at 2-10.
The appellant timely filed a petition for review, challenging the
administrative judge’s findings that the agency proved its charges and the
reasonableness of the penalty imposed. Petition for Review (PFR) File, Tab 1.
The agency has responded. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge made proper credibility findings based on the hearing
testimony and record evidence.
In sustaining the charges, the administrative judge credited the testimony of
a coworker, who testified as to the conduct underlying the appellant’s removal,
over the appellant’s denials. ID at 2-6. On review, the appellant disputes the
credibility-based findings of the administrative judge. PFR File, Tab 1 at 6-8.
We are not persuaded.
The Board must give deference to an administrative judge’s credibility
determinations when they are based explicitly or implicitly on the observation of
witnesses testifying at a hearing and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
3 The appellant does not challenge the administrative judge’s finding regarding his
affirmative defenses on review. Because the administrative judge’s finding—that the
appellant failed to prove that his age, race, and EEO activity were a motivating factor in
his removal—is unchallenged on review, we need not reach the question of whether the
appellant’s age, race, or EEO activity was a “but-for” cause of the removal action. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
4
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly
resolved the credibility determinations in accordance with Hillen.4 She identified
the factual questions in dispute, summarized the agency’s charges, and then
analyzed the evidence that the parties offered with respect to the charges. ID
at 2-6. The administrative judge then stated that she believed the appellant’s
coworker’s version and explained why she found the appellant less credible. Id.
As to the sleeping on duty charge, the administrative judge found credible
the testimony of the appellant’s coworker that he had personally observed the
appellant sleeping on duty on multiple occasions, which was corroborated by
photographs he took of the appellant sleeping at work. ID at 2-4; IAF, Tab 17
at 36-38, 42, Tab 18 at 4-13, 15-16. In contrast, the administrative judge did not
find credible the appellant’s testimony that he was “merely resting” or avoiding
his coworker. ID at 3. On review, the appellant alleges that the administrative
judge improperly found his coworker’s testimony more credible than his. PFR
File, Tab 1 at 6. In support of this argument, he argues that his coworker testified
that he could not remember the specific dates on which he took the photographs
allegedly portraying the appellant sleeping on duty. Id. However, in making her
credibility determinations and weighing the evidence, the administrative judge
acknowledged that during the hearing the coworker could not recall the specific
dates the photos were taken but that he testified that the photos could be
identified by the date on his phone and he had previously provided that
information to the investigator. ID at 3. While the photos provided by the
agency do not reflect the dates each was taken, the accompanying documents
4 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering such factors as (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) his character; (3) any prior inconsistent
statement by the witness; (4) his bias, or lack of bias; (5) the contradiction of his
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of his version of events; and (7) his demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987).
5
confirm it was during the February to April 2016 time period in question,
specifically an email in the record reflects that the appellant’s supervisor received
three of the photos on or before April 27, 2017. IAF, Tab 17 at 34-38, 42. To the
extent that the appellant is questioning whether he was asleep on the specific
dates alleged in the proposed removal, we are not persuaded. An agency is
required to prove only the essence of its charge; it need not prove each factual
specification supporting the charge. Oates v. Department of Labor , 105 M.S.P.R.
10, ¶ 9 (2007). Given the administrative judge’s explicit demeanor-based
findings, we find that the appellant has failed to provide a sufficiently sound
reason to disturb her findings that the agency proved its first charge. See Haebe,
288 F.3d at 1301.
For the falsification charge, the appellant alleges that the administrative
judge improperly relied on his coworker’s testimony in sustaining this charge and
“baldly stated” that she did not find the appellant credible. PFR File, Tab 1 at 6.
We are not persuaded. The administrative judge credited the appellant’s
coworker, as supported by his corroborating video evidence, that the appellant
stated he could “predict” the boiler readings and therefore did not actually need to
check the boiler. ID at 4; IAF, Tab 4. In finding the appellant’s excuses less
credible, the administrative judge observed that he offered varying explanations
between the video recording, his written reply to the proposed removal, and his
hearing testimony. ID at 4-5. For example, in the video the appellant stated he
could “predict” the readings and did not need to check the boiler, IAF, Tab 4,
while in his written reply to the proposed removal he claimed that he “may have
been trash talking or bantering” with his coworker, IAF, Tab 3 at 36, and during
the hearing the appellant testified both that most of the readings of the boiler
equipment stay the same if the weather and temperature do not change and that he
had recorded the readings on a small slip of paper that could not be seen in the
video, IAF, Tab 21, Hearing Compact Disc (HCD) (testimony of the appellant).
6
The appellant’s argument on review does not provide a basis to disturb the
administrative judge’s findings.
Finally, for the inappropriate comments charge, the appellant asserts that
the underlying conduct, including the video recording of the incident, formed the
basis of an attempted threats criminal charge. PFR File, Tab 1 at 7-8. He states
that he was acquitted of the attempted threats charge and, as a result, his
coworker is now of questionable credibility. Id.5 We disagree.
The criminal judge did question the appellant’s coworker’s credibility
during the trial of the “attempted threats” charge but it was regarding the issue of
whether he felt threatened by the appellant. IAF, Tab 15 at 28-29. Here, the
agency did not charge the appellant with “attempted threats” but with
“inappropriate comments.” IAF, Tab 3 at 62.6 A general charge such as this one
has no specific elements of proof; it is established by proving that the
employee committed the acts alleged in support of the broad label. See
Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010)
(reaching the same conclusion as to charges of “conduct unbecoming” and
“improper conduct”). Notably, the appellant does not dispute that he made the
comments at issue here. PFR File, Tab 1 at 7.
While the administrative judge properly credited the testimony of the
appellant’s coworker as to his conversation with the appellant, she also relied on
5 The appellant also alleges that the administrative judge “unfairly disregarded” the fact
that he was previously acquitted of the attempted threats criminal charge. PFR File,
Tab 1 at 8, Tab 15 at 20-34. To the extent the appellant is arguing that acquittal of the
criminal charge warrants not sustaining the inappropriate comments charge at issue in
this adverse action, we disagree. A criminal acquittal is not binding in a subsequent
civil action due to the differing standards of proof. Rodriguez-Ortiz v. Department of
the Army, 46 M.S.P.R. 546, 548 (1991).
6 Because the agency charged the appellant with inappropriate comments, rather than
with making a threat, the agency was not required to prove that the appellant made a
threat under the test set forth in Metz v. Department of the Treasury , 780 F.2d 1001,
1002-03 (Fed. Cir. 1986), but could instead consider the threatening nature of the
appellant’s comments in determining the penalty. E.g., Brough v. Department of
Commerce, 119 M.S.P.R. 118, ¶ 12 n.2 (2013).
7
the April 18, 2016 video of the incident which was recorded by the coworker and
corroborated his testimony. ID at 5-6; IAF, Tab 4. She did not credit the
appellant’s testimony that his comments were just “trash talk” and that vulgar
language was common at the boiler plant. ID at 6. She found the comments
inappropriate, not because of the appellant’s use of obscenities, but because the
appellant made comments about killing his coworkers, especially in light of the
Navy Yard shooting that took place in September 2013. ID at 5-6. We find that
the appellant has failed to provide a sufficiently sound reason to disturb these
credibility determinations. See Haebe, 288 F.3d at 1301.
As to all three charges, the appellant also alleges that the administrative
judge erroneously failed to credit the corroborating testimony of a different
coworker who was also a work leader. PFR File, Tab 1 at 8. During the work
leader’s 10 minutes of testimony, he testified generally to working with the
appellant and the appellant’s coworker but did not testify regarding the specifics
of the underlying conduct at issue in this appeal. HCD (testimony of the work
leader). The administrative judge’s failure to discuss testimony does not mean
that she did not consider it. See Hooper v. Department of the Interior ,
120 M.S.P.R. 658, ¶ 14 (2014). Moreover, the content of the work leader’s
testimony does not change the outcome here. For example, he testified that there
is a lot of “shop talk” at work but did not offer testimony regarding the
inappropriate comments charge itself. HCD (testimony of the work leader). Nor
did he offer testimony regarding the sleeping on duty or falsification of log sheets
charges. Id. Thus, the administrative judge properly found that the agency
proved its charges and sustained the removal action.
The administrative judge correctly found that the agency met the nexus
requirement and that the penalty of removal was reasonable.
The nexus requirement, for purposes of determining whether an agency has
shown that its action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
8
action and either the employee’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of the Army ,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d per curiam , 522 F. App’x 913 (Fed. Cir.
2013). The administrative judge found that there was a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 6. The appellant
does not challenge this finding, and we discern no basis for disturbing it.
On review, the appellant alleges that his removal should have been
mitigated to “a warning or, at most, a modest suspension.” PFR File, Tab 1 at 9.
Specifically, he argues that he was a long-time Federal employee, his only prior
discipline was a 10-day suspension, and that he was a good worker with an
exemplary work performance. Id. When, as here, all the agency’s charges have
been sustained, the Board will review an agency-imposed penalty only to
determine if the agency considered all of the relevant Douglas factors and
exercised management discretion within tolerable limits of reasonableness.7
Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 25 (2014). In
determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Id. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.
As the administrative judge observed, the deciding official considered
aggravating factors, including the appellant’s prior discipline, the deciding
official’s loss of confidence in the appellant’s ability to carry out his duties, the
appellant’s higher level of responsibility as a work leader, his failure to accept
responsibility for his misconduct, and his disregard for safety and the mission of
the agency, in reaching his decision that removal was the proper penalty. ID at 7;
7 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
9
IAF, Tab 3 at 21-23, 25-33. Further, the deciding official specifically took into
consideration mitigating factors, such as the appellant’s years of Federal service
and prior performance record, but determined that it did not overcome the gravity
of the charges. IAF, Tab 3 at 23. He also considered whether the removal could
have been mitigated but determined that “lesser actions have been executed in the
past and they do not seem to have adjusted the employee’s behavior.” Id.
at 32-33.
In light of the above, we agree with the administrative judge that the
deciding official correctly weighed the relevant Douglas factors, and that the
penalty of removal was reasonable. See Christopher v. Department of the Army ,
107 M.S.P.R. 580, ¶¶ 21-22 (finding that the penalty of removal did not exceed
the bounds of reasonableness when the employee was charged with falsification
of Government documents and inappropriate comments in the workplace which
were violent in nature), aff’d, 299 F. App’x 964 (Fed. Cir. 2008); Washington v.
U.S. Postal Service , 35 M.S.P.R. 195, 200 (1987) (finding that the penalty of
removal for a single incident of sleeping on duty did not exceed the bounds of
reasonableness when the employee had received prior discipline for similar
offenses only a short time before) .
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Graham_Ernest_C_DC-0752-17-0577-I-1_Final_Order.pdf | 2024-02-29 | ERNEST C. GRAHAM v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-17-0577-I-1, February 29, 2024 | DC-0752-17-0577-I-1 | NP |
2,221 | https://www.mspb.gov/decisions/nonprecedential/Giddin_Tanisha_V_AT-315H-20-0138-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANISHA VICTORIA GIDDIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-315H-20-0138-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
anisha Victoria Giddin , Orange Park, Florida, pro se.
David B. Gattis and Jeremiah P. Crowley , 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. Generally,
we grant petitions such as 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.
We have examined the documents which the appellant submitted in support
of her petition for review. Petition for Review File, Tabs 1, 4. While these
documents appear to have been unavailable before the close of the record below,
we find that they are not material to the outcome of the appeal, and therefore
provide no basis for further review.2 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).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 Following the close of the record on review, the appellant submitted a request to file
additional evidence. We deny the request, as the appellant has not explained the need
for the additional pleading. See 5 C.F.R. § 1201.114(a)(5) (providing that, in order to
obtain leave from the Clerk of the Board to submit a pleading other than the ones
described in 5 C.F.R. § 1201.114(a), the party must describe the nature of and need for
the pleading).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 7 | Giddin_Tanisha_V_AT-315H-20-0138-I-1_Final_Order.pdf | 2024-02-29 | TANISHA VICTORIA GIDDIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-315H-20-0138-I-1, February 29, 2024 | AT-315H-20-0138-I-1 | NP |
2,222 | https://www.mspb.gov/decisions/nonprecedential/Davis_Kim_K_DC-315I-21-0110-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIM K. DAVIS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315I-21-0110-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonelle Cooks , Leesburg, Georgia, for the appellant.
Gail Kessler , West Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal concerning the termination of her
competitive-service supervisory appointment during the supervisory probationary
period. On petition for review, the appellant disputes the reasons for the agency’s
action and argues that the agency treated her unfairly, failed to follow proper
procedures in correcting her alleged performance problems, and failed to inform
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
her that she was on probation.2 She also argues that the administrative judge
failed to address many of the factual allegations that she raised below. The
appellant has attached several documents to her petition for review, in support of
her claim that her performance as a supervisor was satisfactory. Generally, we
grant petitions such as 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
2 We note that, even if the appellant were not subject to a supervisory probationary
period, the Board would lack jurisdiction over this appeal under 5 U.S.C. chapter 75
because the agency did not reduce her in pay or grade when it terminated her
supervisory appointment but instead laterally reassigned her to a nonsupervisory
position.
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals 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. 115-195,5
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.
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 | Davis_Kim_K_DC-315I-21-0110-I-1 Final Order.pdf | 2024-02-29 | KIM K. DAVIS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315I-21-0110-I-1, February 29, 2024 | DC-315I-21-0110-I-1 | NP |
2,223 | https://www.mspb.gov/decisions/nonprecedential/Patel_Monal_DC-3443-20-0398-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONAL PATEL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-20-0398-I-1
DATE: February 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Monal Patel , Washington, D.C., pro se.
Richard Floyd Kane , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because he was not a Government
employee at the time of his termination and he did not have standing to file an
individual right of action (IRA) appeal pursuant to 5 U.S.C. § 1221(a).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review,2 the appellant complains about his supervisor and
asserts that he was a Federal employee. Petition for Review (PFR) File, Tab 1
at 4. Based on our review of the record, the appellant’s arguments and evidence3
provide no basis to disturb the initial decision. The administrative judge properly
found that, because the appellant was employed by a Government contractor, he
failed to meet the definition of an employee under 5 U.S.C. § 1221(a). Initial
2 The agency requests leave to file its response to the appellant’s petition for review
1 day late. Petition for Review (PFR) File, Tab 8 at 4. The Board will waive its filing
deadline only upon a showing of good cause, regardless of how minimal the delay.
5 C.F.R. § 1201.114(g); see Lands v. Department of the Air Force , 95 M.S.P.R. 593,
¶¶ 2-3, 5-7 (2004) (stating that filing even 1 day late requires a showing of good cause).
Here, the agency’s representative asserted in a pleading submitted under penalty of
perjury that he was experiencing problems with his internet service provider while
teleworking during the COVID-19 pandemic. PFR File, Tabs 3-4. Because we find that
the agency’s representative has made a showing of good cause, we waive the filing
deadline and consider the response. In the interests of fairness, we also consider the
appellant’s reply to the agency’s response. PFR File, Tab 10.
3 The appellant provided illegible, partial scans of a Christmas card and an email from a
prospective employer inquiring about an incident report filed by his former employer
that it saw on his clearance profile. PFR File, Tab 1 at 6-9. This evidence was
submitted below. Initial Appeal File, Tab 9 at 4-5. Evidence that is already a part of
the record is not new . Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).2
Appeal File, Tab 10, Initial Decision (ID) at 4-5. Thus, the appellant lacks
standing to file an IRA appeal with the Board. ID at 7.
After the appellant filed his petition for review, but before the record
closed on review, he sought leave from the Clerk of the Board to submit new
evidence. PFR File, Tabs 4, 6. In his first motion, he vaguely asserts that there is
evidence that was not available before the record closed and seeks to submit
emails with the Department of the Army that “indicate stark incongruencies with
the sudden adverse action.” PFR File, Tab 4 at 3. In his second motion, he seeks
to submit an email from an Army civilian staffer that would have a “huge impact
on [his] defense.” PFR File, Tab 6 at 3.
Pleadings allowed on review include a petition for review, a cross petition
for review, a response to a petition for review, a response to a cross petition for
review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a).
No pleading other than those set forth above will be accepted unless the party
files a motion with and obtains leave from the Clerk of the Board. 5 C.F.R.
§ 1201.114(a)(5). The motion must describe the nature and need for the pleading.
Id. Here, the appellant has not explained how the evidence he wishes to submit,
or the information contained therein, is new; nor has he shown how it is material
to the dispositive issue in this appeal, whether he meets the definition of an
employee under 5 U.S.C. § 1221(a). Thus, we deny his motions. Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision). 3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Patel_Monal_DC-3443-20-0398-I-1__Final_Order.pdf | 2024-02-29 | MONAL PATEL v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-20-0398-I-1, February 29, 2024 | DC-3443-20-0398-I-1 | NP |
2,224 | https://www.mspb.gov/decisions/nonprecedential/Oden_Jarrod_E_CH-0752-18-0059-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JARROD E. ODEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0059-I-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna Drake , Markham, Illinois, for the appellant.
Adam G. Eisenstein , Esquire, and Deborah L. Lisy , 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
sustained the appellant’s removal for misconduct. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Oden_Jarrod_E_CH-0752-18-0059-I-1 Final Order.pdf | 2024-02-28 | JARROD E. ODEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0059-I-1, February 28, 2024 | CH-0752-18-0059-I-1 | NP |
2,225 | https://www.mspb.gov/decisions/nonprecedential/Traylor_Donna_E_DA-1221-17-0216-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA E. TRAYLOR,
Appellant,
v.
OFFICE OF SPECIAL COUNSEL,
Agency.DOCKET NUMBER
DA-1221-17-0216-W-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna E. Traylor , Lawton, Oklahoma, pro se.
Amy Beckett , 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 lack of jurisdiction her individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant, an employee of the Department of the Army (Army), filed
an IRA appeal alleging that, in reprisal for her whistleblowing disclosures about
the Army, the Office of Special Counsel (OSC) failed to investigate her complaint
of whistleblower reprisal by her employing agency. Initial Appeal File (IAF),
Tab 1 at 3; Tab 7 at 5-6. On the section of the appeal form requiring the
appellant to indicate the personnel action or decision that she was appealing, she
indicated that she was appealing OSC’s “[d]ecision to take action on [a]ct of
[r]eprisal for a whistleblower complaint.” IAF, Tab 1 at 3, 11-12.
The administrative judge issued an order to show cause, which set forth the
requirements for establishing jurisdiction over an IRA appeal. IAF, Tab 3 at 2-8.
The appellant submitted two responses to the jurisdictional order. IAF, Tabs 7-8.
OSC responded by arguing, inter alia, that the appellant was never employed by
OSC and failed to make nonfrivolous allegations that the matters she raised on
appeal constituted personnel actions defined by 5 U.S.C. § 2302(a). IAF, Tab 9
at 6.
After receiving the parties’ responses, the administrative judge issued an
initial decision that dismissed the appeal for lack of jurisdiction without holding2
the hearing requested by the appellant. IAF, Tab 13, Initial Decision (ID) at 1.
The administrative judge found that the appellant failed to nonfrivolously allege
that OSC had taken or failed to take a personnel action under 5 U.S.C. § 2302(a).
ID at 4. In reaching her decision, the administrative judge found that OSC’s
failure to resolve the appellant’s claims of whistleblower retaliation was not a
“personnel action” under 5 U.S.C. § 2302(a)(2)(A). ID at 4. The administrative
judge also found that it was beyond the Board’s purview to review the appellant’s
allegation that OSC failed to comply with its statutory obligations under 5 U.S.C.
§ 1212.2 ID at 5.
The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response to the petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). 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). 5 U.S.C. §§ 1214(a)
(3), 1221(e)(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371
2 The appellant alleged that OSC did not comply with its statutory obligation under
5 U.S.C. § 1213, by failing to take action on her complaint. IAF, Tab 7 at 6-7. The
administrative judge, however, correctly found that the Board lacked the authority to
review the appellant’s allegation that OSC failed to comply with 5 U.S.C. § 1212,
which sets forth OSC’s powers and functions concerning receiving and investigating
allegations of prohibited personnel practices and to review and forward specified
disclosures of violations to the Attorney General or an agency head under 5 U.S.C.
§ 1213. See 5 U.S.C. § 1212(a)(2)-(3). 3
(Fed. Cir. 2001). For the reasons discussed below, we agree with the
administrative judge that the Board lacks jurisdiction over this appeal because the
appellant failed to raise a nonfrivolous allegation that OSC took or failed to take
a personnel action against her.3 ID at 4.
The administrative judge correctly found that the appellant failed to raise a
nonfrivolous allegation that OSC took or failed to take a personnel action
against her.
“Personnel actions,” for purposes of the Whistleblower Protection
Enhancement Act, are defined as the following 12 actions: (i) an appointment;
(ii) a promotion; (iii) an action under 5 U.S.C. chapter 75 or other disciplinary or
corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;
(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under
5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or awards, or
concerning education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance evaluation, or other
action described in 5 U.S.C. § 2302(a)(2)(A); (x) a decision to order psychiatric
testing or examination; (xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and (xii) any other significant change
in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A).
The appellant asserts on review that she nonfrivolously alleged below that
OSC “failed to take a personnel action for [her]” due to her protected disclosure.
PFR File, Tab 1 at 1-2. In this regard, she contends that OSC “failed to use [its]
authority to take a personnel action to have [her] disclosure investigated by the
Agency, and require [it] to submit a written report surrounding [her] disclosure,”
and also failed to seek corrective or disciplinary action on her behalf through the
Board. Id. at 2. She further claims that OSC’s failure to act “led to continued
harassment from Agency officials.” Id. at 2-3.
3 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
The appellant essentially contends that OSC failed to take such alleged
personnel actions as requiring the Army to investigate and issue a report on her
claims and filing an appeal on her behalf seeking disciplinary action from the
Board. Although an employee, like the appellant, need not work for the agency
that has allegedly taken or failed to take a personnel action, see Weed v. Social
Security Administration , 113 M.S.P.R. 221, ¶ 10 (2010), we nevertheless agree
with the administrative judge that none of the above actions constituted personnel
actions as enumerated at 5 U.S.C. § 2302(a)(2)(A). ID at 4-5.
The appellant’s contention that OSC’s failure to act led to continued
harassment by the Army is raised for the first time on review. Because she has
not alleged or shown that it is based on new and material evidence that, despite
her due diligence, was not available before the record closed below, we need not
consider it. See Weed v. Social Security Administration , 111 M.S.P.R. 450, ¶ 8
n.1 (2009), aff’d, 367 F. App’x 144 (Fed. Cir. 2010); 5 C.F.R. § 1201.115(d). In
any event, although alleged harassment by the Army might constitute a personnel
action if it rose to the level of a significant change in duties, responsibilities, or
working conditions, the appellant has provided no legal support for her apparent
contention that such harassment by the Army can be imputed to OSC. Moreover,
her generalized assertion on review of harassment would be insufficient to raise a
nonfrivolous allegation of a personnel action. See Godfrey v. Department of the
Air Force, 45 M.S.P.R. 298, 302-03 (1990) (finding that jurisdiction over an IRA
appeal requires more than generalized assertions unsupported by reference to any
specific matter). We find that the Board otherwise has no authority to adjudicate
the appellant’s contention that OSC improperly failed to investigate her claims.
See Wren v. Merit Systems Protection Board , 681 F.2d 867, 871-72 (D.C. Cir.
1982) (holding that the Board had no authority to enforce the statutory
requirement that OSC investigate allegations of whistleblower reprisal). We
therefore affirm the initial decision dismissing this appeal for lack of jurisdiction.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 | Traylor_Donna_E_DA-1221-17-0216-W-1__Final_Order.pdf | 2024-02-28 | DONNA E. TRAYLOR v. OFFICE OF SPECIAL COUNSEL, MSPB Docket No. DA-1221-17-0216-W-1, February 28, 2024 | DA-1221-17-0216-W-1 | NP |
2,226 | https://www.mspb.gov/decisions/nonprecedential/Day_Kenneth_D_AT-0845-19-0772-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH D. DAY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-19-0772-I-1
DATE: February 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
John David Folds , Esquire, Washington, D.C., for the appellant.
Cynthia Reinhold and Alison Pastor , 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 and the agency has filed a
cross petition for review of the initial decision, which dismissed the appellant’s
retirement appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT both the appellant’s petition for review and the agency’s cross petition
for review, VACATE the initial decision, and REMAND the case to the Office 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).
Personnel Management (OPM) for further adjudication in accordance with this
Remand Order.
BACKGROUND
After approximately 20 years of active duty with the Army, punctuated by
periods of service with the U.S. Postal Service, the appellant retired as a civilian
employee with the Department of the Army, effective December 31, 2018, and
began to receive an annuity. Initial Appeal File (IAF), Tab 8 at 53-56, 58-60. On
June 24, 2019, OPM notified him that the calculation of his retirement annuity
resulted in his owing a redeposit for two periods of civilian service with the
Postal Service for which he had requested and received refunds of his retirement
contributions. Id. at 32-34. Specifically, the appellant could either pay the full
amount of the required redeposit, with interest ($64,146.00), or have his monthly
annuity reduced from $1,277.00 to $964.00, to account for the fact that his
annuity calculation would not include the periods of service for which OPM
asserts he received a refund. Id. at 32-34. OPM further advised the appellant
that, because he had been placed in an erroneous retirement system for more than
3 years (he was placed in the Federal Employees’ Retirement System but should
have been in the Civil Service Retirement System Offset), he was entitled to
relief under the Federal Erroneous Retirement Coverage Correction Act
(FERCCA).2 Id. The appellant insisted that he had never received either of the
two refunds referenced by OPM. IAF, Tab 1 at 28-29, 46, 48, 52-53. On July 3,
2019, OPM issued a final decision in which it stated that it had no authority to
waive the interest on the appellant’s redeposit and had reduced his annuity
2 FERCCA was enacted on September 19, 2000, to address “the problems created when
employees are in the wrong retirement plan for an extended period.” 5 C.F.R.
§ 839.101(a); see Pub. L. No. 106-265, Title II, 114 Stat. 762, 765 (codified at 5 U.S.C.
§ 8331 note), and it provides such employees the opportunity to correct the placement
error and, in many cases, to choose between retirement systems. See Wallace v. Office
of Personnel Management, 88 M.S.P.R. 375, ¶ 7 (2001). 2
accordingly. Id. at 14. The notice afforded the appellant appeal rights to the
Board. Id.
On appeal, the appellant again repeated that he never received the larger of
the two refund checks which, according to OPM, was mailed to him in 1991 in
the amount of $17,408.16,3 and he described his efforts to prove his non-receipt.
IAF, Tab 1 at 1-4. He requested a hearing. Id. at 6. During the prehearing
conference, the administrative judge stated that the issue to be addressed was
whether OPM’s final decision of July 3, 2019, requiring the appellant to pay
interest on the redeposit, was proper. IAF, Tab 12.
Following the requested hearing, the administrative judge issued an initial
decision. IAF, Tab 16, Initial Decision (ID). He found that, while certain actions
taken under FERCCA may be appealed to the Board, 5 C.F.R. § 839.1302(a),
other actions taken by OPM are considered to be discretionary, 5 C.F.R.
§ 839.1203(b), and are not subject to administrative or judicial review. 5 C.F.R.
§ 839.1303; ID at 3-5. The administrative judge then found that OPM’s final
decision of July 3, 2019, declining to waive interest on the redeposit amount, was
a discretionary decision to not compensate the appellant for a monetary loss
proximately resulting from a retirement coverage error, and that, as such, the
appellant had no right to appeal that decision. ID at 4. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdiction. ID at 1, 5.
In his petition for review, the appellant argues that the Board does have
jurisdiction over his appeal as it affects his retirement interests, Petition for
Review (PFR) File, Tab 1 at 2-4, and he states that he has new evidence in
support of his claim that he did not receive the 1991 check, id. at 4-7. The
appellant requests that the Board remand the appeal to OPM for reconsideration
of its decision requiring him to make the redeposit with interest. Id. at 9. In its
cross petition for review, OPM also requests that the appeal be remanded and
3 The appellant explained that he was “most concerned” with the larger of the two
checks, IAF, Tab 1 at 4. During the hearing, he acknowledged receipt of the earlier,
considerably smaller check. IAF, Tab 16, Initial Decision at 2 n.13
argues, although for different reasons, that dismissal of the appeal for lack of
jurisdiction was improper. PFR File, Tab 4 at 12. OPM argues that both its final
decision and the administrative judge’s decision addressed a matter that was not
raised, that is, whether interest was required on the redeposit, but that neither
decision addressed the appellant’s claim that he never received the refund of his
retirement contributions in 1991. Id. at 11-12. OPM requests that the Board
remand the appeal so that it may issue a new reconsideration decision on that
issue. Id at 12. In his reply to OPM’s cross petition, the appellant concurs with
OPM. PFR File, Tab 6.
When, as here, OPM fails to adjudicate all claims and dispositive issues
before it, the Board may remand the case to OPM to conduct a full review of the
matter. Bynum v. Office of Personnel Management , 618 F.3d 1323, 1332-33 (Fed.
Cir. 2010); Ott v. Office of Personnel Management , 120 M.S.P.R. 453, 455 -56
(2013). We therefore agree with the parties’ requests for remand.
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this case to OPM for further adjudication. On remand, in accordance with the
applicable burdens of proof set forth in Rint v. Office of Personnel Management ,
48 M.S.P.R. 69, 71-72, aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table), OPM shall
issue a new final decision addressing the appellant’s claim of non -receipt of his
1991 retirement contributions, and the effect of the resolution of that claim on the
computation of his annuity. OPM shall advise the appellant of his right to file an
appeal with the Board’s Atlanta Regional Office if he disagrees with the new
decision. See Litzenberger v. Office of Personnel Management , 88 M.S.P.R. 419,
424 (2001).
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 necessary4
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).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Day_Kenneth_D_AT-0845-19-0772-I-1__Remand_Order.pdf | 2024-02-28 | KENNETH D. DAY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-19-0772-I-1, February 28, 2024 | AT-0845-19-0772-I-1 | NP |
2,227 | https://www.mspb.gov/decisions/nonprecedential/Farmer_Brenda_DC-0752-19-0337-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA FARMER,
Appellant,
v.
OFFICE OF NATIONAL DRUG
CONTROL POLICY,1
Agency.DOCKET NUMBER
DC-0752-19-0337-I-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Analese Dunn , Esquire, Timonium, Maryland, for the appellant.
Jill Weissman , 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 for lack of jurisdiction her appeal claiming an involuntary disability
retirement and an erroneous revocation of her Voluntary Separation Incentive
1 This case was originally captioned “ Brenda Farmer v. The White House .” The caption
has been updated to reflect that the Office of National Drug Control Policy is the actual
respondent agency.
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).
Payment (VSIP). Generally, we grant petitions such as 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 MODIFIED to address
the appellant’s argument that there was no requirement that she repay the VSIP,
we AFFIRM the initial decision.
BACKGROUND
This case involves an unusual set of facts. Effective August 1, 2016, the
appellant voluntarily retired from the agency with a $25,000 VSIP. Initial Appeal
File (IAF), Tab 1 at 3. In May 2017, the appellant asked the agency what
would happen to her VSIP if her regular retirement was changed to a
disability retirement. Id. at 10. The agency indicated in an email that the
appellant would have to “choose between” her disability retirement and keeping
the VSIP. Id. at 3-4, 11. The appellant submitted a disability retirement
application on July 20, 2017, which the Office of Personnel Management (OPM)
granted on March 2, 2018. Id. at 4, 12-15. On April 4, 2018, the agency
informed the appellant that because her “status or type of retirement has changed
to disability,” she was no longer entitled to the VSIP payment, and she would
have to repay the $25,000 VSIP payment. Id. at 18-19. On August 10, 2018, the2
appellant notified OPM that she elected to remain in a voluntary retirement status
rather than switch to a disability retirement. Id. at 4, 17.
The record reflects that there was some confusion at the agency and OPM
regarding whether the appellant could keep the VSIP after OPM approved her
disability retirement application. However, by letter dated September 28, 2018,
the agency informed the appellant that, because her disability retirement
application had been approved, she was not eligible for the VSIP and had to repay
it. Id. at 21. The letter noted that the appellant had thus far repaid $10,415 of the
VSIP, and it advised her that if the indebtedness was not paid in full according to
the repayment plan, then the debt would be forwarded to the Department of the
Treasury for further collection. Id. The agency subsequently indicated, in a
February 4, 2019 email, that it had consulted with OPM, and OPM confirmed that
the appellant was ineligible for the VSIP, and the agency could not waive the
repayment. Id. at 22. The appellant ultimately paid the VSIP back in its entirety.
Id. at 5.
This appeal followed. IAF, Tab 1. The appellant argued that her disability
retirement application was involuntary due to the agency’s improper and
misleading information, and she requested that the agency’s February 4, 2019
decision regarding repayment of the VSIP be overturned, OPM’s approval of her
disability retirement be set aside, and the agency be ordered to reimburse her for
the $25,000 VSIP that she had since repaid in full. Id. at 5, 8. In her response to
the administrative judge’s show cause order, the appellant argued that there was
no legal basis for requiring repayment of the VSIP upon subsequent approval of
her disability retirement application, and she asked that OPM be joined in the
appeal based on its involvement in the agency’s February 4, 2019 decision. IAF,
Tab 15 at 8.
In the initial decision, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that her August 1, 2016 retirement from
Federal service was involuntary. IAF, Tab 16, Initial Decision (ID) at 4-10. She3
also noted that the Board lacked the authority to order OPM to rescind its
approval of the appellant’s disability retirement application or mandate that the
agency reimburse her for the VSIP that she repaid. ID at 3 n.3. The
administrative judge therefore dismissed the appeal for lack of jurisdiction
without holding a hearing. ID at 10.
The appellant has filed a petition for review, arguing primarily that the
initial decision failed to address the following arguments that she raised below:
(1) she filed for disability retirement based on misinformation from the agency;
and (2) there is no legal basis requiring repayment of the VSIP upon subsequent
approval of her disability retirement application. Petition for Review (PFR) File,
Tab 1 at 7-8. She also asserts that the agency’s February 4, 2019 decision is a
joint decision between the agency and OPM that affects her rights and interests
under the Federal retirement laws, and OPM should be added as a party. Id. She
requests that the initial decision be overturned, that OPM’s approval of her
disability retirement be set aside, and that the agency reimburse her for the VSIP.
Id. at 8-9. The agency has filed a response opposing the petition. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985); Francis v. Department of the
Air Force, 120 M.S.P.R. 138, ¶ 14 (2013). The appellant bears the burden of
proving that the Board has jurisdiction over her appeal. Francis, 120 M.S.P.R.
138, ¶ 14. To be entitled to a jurisdictional hearing, the appellant must first make
a nonfrivolous allegation of jurisdiction, i.e., an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter in issue. Id.4
As an initial matter, the appellant does not challenge the administrative
judge’s finding that her August 1, 2016 retirement from Federal service was
voluntary. ID at 7-8. Indeed, on review she refers to her August 1, 2016
retirement as voluntary. PFR File, Tab 1 at 4. We see no reason to disturb the
administrative judge’s finding, and we therefore affirm it. This finding has
significant implications on our analysis of the jurisdictional issue.
On review, the appellant asserts that the Board has jurisdiction over a
retired or separated employee who receives incorrect and misleading agency
advice resulting in a disability retirement application and subsequent penalty. Id.
at 7. While it is generally true that allegations of agency misinformation can
render a separation from Federal service (such as a retirement or resignation)
involuntary, Mims v. Social Security Administration , 120 M.S.P.R. 213, ¶ 17
(2013); Hosford v. Office of Personnel Management , 107 M.S.P.R. 418, ¶ 9
(2007), the appellant has not identified, and we are not aware of, any case in
which the Board or our reviewing court has held that an already-retired employee
who later seeks to switch to a different retirement status may pursue a claim that
the subsequent retirement was involuntary based on agency misinformation.
There generally are two ways to establish the Board’s jurisdiction over a
claim of an involuntary disability retirement. The first way is that her employing
agency failed to reasonably accommodate a disability and that failure led to the
appellant’s disability retirement. See, e.g., Mims, 120 M.S.P.R. 213, ¶ 17. The
appellant does not advocate for this analytical approach, and there is no allegation
of a failure to accommodate below. We therefore conclude that this approach
would not apply.
The second way to analyze an involuntary disability retirement claim, and
the approach seemingly favored by the appellant, supra p. 5, is to apply the
general jurisdictional tests for determining whether a retirement was involuntary5
based on coercion, duress, or agency misinformation.3 See, e.g., Hosford,
107 M.S.P.R. 418, ¶¶ 7-9 (concluding that the appellant sufficiently alleged that
her decision to apply for disability retirement, rather than immediate optional
retirement, was the result of her reasonable reliance on misleading advice from
her employing agency). In these types of cases, the Board’s rationale for finding
that it has jurisdiction over an involuntary resignation or retirement based
on agency misinformation (or other reasons) is because the action is
tantamount to a forced removal that is within the Board’s chapter 75 jurisdiction.
Mims, 120 M.S.P.R. 213, ¶ 16. The Board’s rationale in those cases is not
applicable here. Even if we assume for the purposes of our analysis that there
was agency misinformation upon which the appellant relied to subsequently file a
disability retirement application, that decision is not tantamount to a forced
removal because she voluntarily retired from Federal service in 2016—before she
even asked the agency about disability retirement. Additionally, the traditional
remedies that are available in an involuntary retirement appeal, such as
reinstatement and back pay, Atkins v. Department of Commerce , 81 M.S.P.R. 246,
¶ 10 (1999), are not even being sought by the appellant in this matter, presumably
because she has already retired. Given the unusual facts presented in this appeal,
the appellant has not persuaded us that the Board has jurisdiction over her
allegation of an involuntary disability retirement.
Regarding her second argument, the appellant acknowledged below and on
review that under 5 U.S.C. § 3521(2)(B)(ii), an “employee” for the purposes of
entitlement to a VSIP “shall not include . . . an employee having a disability on
the basis of which such employee is or would be eligible for disability retirement
under subchapter III of chapter 83 or 84 or another retirement system for
employees of the Government.” PFR File, Tab 1 at 8; IAF, Tab 15 at 9. She
contended, however, that she qualified as an “employee” at the time of her initial
3 The appellant does not allege on review that her decision to file for disability
retirement was based on coercion or duress.6
retirement, she therefore properly received her VSIP at the time of her initial
retirement, and there is no requirement that she repay the VSIP upon OPM’s
approval of her disability retirement application. IAF, Tab 15 at 9-10; PFR File,
Tab 1 at 8. Although the administrative judge did not specifically address the
appellant’s claim that there is no requirement that she repay the VSIP, she noted
that the Board has no authority to award the legal remedies sought by the
appellant. ID at 3 n.1. For example, the administrative judge stated, among other
things, that the Board cannot award a VSIP that is prohibited by statute based on
OPM’s decision to approve the appellant’s disability retirement application, and
the Board has no authority to order OPM to rescind its decision approving the
appellant’s disability retirement application. Id. We supplement the
administrative judge’s analysis to specifically address the appellant’s argument
that there was no requirement that she repay the VSIP, but we conclude that a
different outcome is not warranted.
The appellant cited, below, to the statute at 5 U.S.C. § 3524, which states
that an individual who has received a VSIP and who accepts employment with the
Federal Government within 5 years of the date of separation “shall be required to
pay . . . the entire amount of the [VSIP] to the agency that paid the [VSIP].” IAF,
Tab 15 at 9-10. The appellant correctly noted that there is no concomitant
provision that requires her to repay her VSIP after OPM approved her disability
retirement application. Id. She asserted that the failure to include such statutory
language means that Congress did not intend for employees, such as the
appellant, to give up the VSIP in the event of a subsequent disability retirement.
Id. However, we need not decide this issue. The appellant does not dispute that
she is no longer eligible for the VSIP pursuant to 5 U.S.C. § 3521(2)(B)(ii),
which excludes “an employee having a disability on the basis of which such
employee is or would be eligible for disability retirement.” Because the appellant
has repaid the VSIP in full, the Board lacks the authority to order the agency to
repay her the VSIP in contravention of 5 U.S.C. § 3521(2)(B)(ii). See, e.g.,7
Office of Personnel Management v. Richmond , 496 U.S. 414, 416, 434 (1990)
(finding that the Government cannot be estopped from denying benefits not
otherwise permitted by law even if the claimant was denied monetary benefits
because of his reliance on the mistaken advice of a government official) .
The appellant’s remaining arguments do not change our disposition of the
jurisdictional issue. For example, the regulation at 5 C.F.R. § 1201.3(2) states
that the Board’s appellate jurisdiction extends to “[d]eterminations affecting
the rights or interests of an individual under Federal retirement laws” and
specifically refers to 5 U.S.C. §§ 8347(d)(1)-(2), 8461(e), and 8331 note, and
5 C.F.R. parts 831, 839, 842, 844, and 846. The appellant appears to argue that
the February 4, 2019 agency email, which discussed its decision not to reimburse
her for the repaid VSIP, affected her rights and interests under Federal retirement
law. PFR File, Tab 1 at 8; IAF, Tab 1 at 22. We are not persuaded by this
argument.
Importantly, the regulation describing the Board’s appellate jurisdiction
under 5 C.F.R. § 1201.3 is not an independent source of jurisdiction itself, but is
merely descriptive of jurisdiction found in other laws, rules, and regulations.
Woodington v. Department of the Navy , 88 M.S.P.R. 689, ¶ 5 (2001).
Moreover, although not raised by the appellant on review, we note that in
Adams v. Department of Defense , 688 F.3d 1330, 1332, 1335-36 (Fed. Cir. 2012),
our reviewing court addressed whether it had jurisdiction over an
agency’s decision to deny a Voluntary Early Retirement Authority (VERA) under
5 U.S.C. § 9902(f). The court found that the voluntary early retirement benefit in
5 U.S.C. § 9902(f) is part of the Federal Employees’ Retirement System (FERS)
pursuant to 5 U.S.C. § 8414. Adams, 688 F.3d at 1335. Moreover, Mr. Adams
stated, and the Government did not dispute, that he was within the scope of
possible voluntary early retirement as outlined in 5 U.S.C. § 9904(f)(4), he
properly filed a request for early retirement, he met the statutory requirements
based on age and employment term, and the employing agency denied his request.8
Id. The court thus held that the agency’s denial of Mr. Adams’ request for early
retirement “significantly affects [his] ‘rights or interests’ under § 8461 of
[FERS], and thus may be an appealable ‘administrative action’ within the Board’s
jurisdiction.” Id.
In contrast to the VERA at issue in Adams, the appellant’s eligibility for
the VSIP is determined by 5 U.S.C §§ 3521-3525 and 5 C.F.R. part 576.
Significantly, there is no provision that gives the appellant Board appeal rights to
challenge the denial of, let alone a revocation of, the VSIP. Moreover, the
appellant points to no persuasive authority that the agency’s revocation of the
VSIP under these circumstances confers Board jurisdiction over that decision as a
determination affecting her rights or interests under the Federal retirement laws.
Indeed, if VSIPs were retirement benefits under 5 U.S.C. chapter 84, they would
be paid from the Civil Service Retirement and Disability Fund. Compare
5 U.S.C. § 3523(b)(7) (reflecting that VSIPs are paid from “appropriations or
funds available for . . . basic pay”), with 5 U.S.C. § 8348(a)(1)(A) (reflecting that
FERS benefits come from the Fund). Additionally, VSIPs are not included as a
basis for payment or included in the calculation of any other type of Government
benefit. 5 U.S.C. § 3523(b)(5).
Finally, the February 4, 2019 decision directing the appellant to repay the
VSIP came in the form of an email from the agency, not OPM. IAF, Tab 1 at 22.
The fact that the agency indicated in that email that it consulted with OPM does
not establish that OPM was responsible for its issuance, nor does it persuade us
that it was a joint decision. We therefore deny the appellant’s request that OPM
be added as a responding party to this appeal.9
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any11
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s12
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Farmer_Brenda_DC-0752-19-0337-I-1__Final_Order.pdf | 2024-02-28 | null | DC-0752-19-0337-I-1 | NP |
2,228 | https://www.mspb.gov/decisions/nonprecedential/Lam_Phyllis_X_DC-1221-18-0716-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHYLLIS X. LAM,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-1221-18-0716-W-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Phyllis X. Lam , Vienna, Virginia, pro se.
Elizabeth Day Hochberg , Esquire, and 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 her individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant disputes the administrative judge’s jurisdictional
dismissal and resubmits one document that was part of the record below 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).
others that are neither new nor material. Generally, we grant petitions such as
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 | Lam_Phyllis_X_DC-1221-18-0716-W-1 Final Order.pdf | 2024-02-28 | PHYLLIS X. LAM v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. DC-1221-18-0716-W-1, February 28, 2024 | DC-1221-18-0716-W-1 | NP |
2,229 | https://www.mspb.gov/decisions/nonprecedential/Perillo_Anthony_J_CH-315H-18-0563-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. PERILLO,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
CH-315H-18-0563-I-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony J. Perillo , Apple Valley, Minnesota, pro se.
Briana Martino , Des Plaines, 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 his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues the merits of his termination, but he does
not address the jurisdictional issue. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL 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 | Perillo_Anthony_J_CH-315H-18-0563-I-1__Final_Order.pdf | 2024-02-28 | ANTHONY J. PERILLO v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. CH-315H-18-0563-I-1, February 28, 2024 | CH-315H-18-0563-I-1 | NP |
2,230 | https://www.mspb.gov/decisions/nonprecedential/Davis_Annette_AT-0752-09-0860-X-1_AT-0752-09-0860-C-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNETTE DAVIS,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
AT-0752-09-0860-X-1
AT-0752-09-0860-C-2
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam J. Conti , Esquire, Atlanta, Georgia, for the appellant.
Kevin D. Mack , Esquire, Sacramento, California, for the agency.
Pernell Telfort , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
In a January 13, 2023 order, the Board affirmed the administrative judge’s
compliance initial decision finding the agency in noncompliance with the Board’s
August 15, 2014 Final Order reversing the appellant’s removal and ordering her
restored to duty, with back pay and appropriate benefits. Davis v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the Interior, MSPB Docket No. AT-0752-09-0860-C-2, Order (Jan. 13, 2023)
(C-2 Order); Compliance Petition for Review (CPFR) File, Tab 5; Davis v.
Department of the Interior , MSPB Docket No. AT-0752-09-0860-E-1, Final
Order (Aug. 15, 2014) (E-1 Final Order). For the reasons discussed below, we
now find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On August 15, 2014, the Board issued a nonprecedential final order
concurring in and adopting a decision of the Equal Employment Opportunity
Commission (EEOC) that had found the agency removed the appellant in
retaliation for her prior equal employment opportunity (EEO) activity. E-1 Final
Order at 6. The Board ordered the agency, in pertinent part, to restore the
appellant to duty and to pay her appropriate back pay, with interest, and benefits.2
Id. at 6-7.
On May 15, 2017, the appellant filed a petition for enforcement regarding
her restoration and benefits.3 Davis v. Department of the Interior , MSPB Docket
No. AT-0752-09-0860-C-2, Compliance File (CF), Tab 1. She acknowledged that
the agency restored her to duty, paid her the correct amount of back pay, and
properly restored the annual and sick leave she would have accrued during the
approximately 5-year back pay period. Id. at 4-5. However, she asserted that the
agency had improperly caused her to forfeit 416 hours of restored annual leave by
2 The Board also forwarded the appellant’s compensatory damages claim to an MSPB
regional office for separate adjudication. E-1 Final Order at 6. On February 18, 2015,
the administrative judge found in the appellant’s favor on her compensatory damages
claim and ordered the agency to pay her $20,000. Davis v. Department of the Interior ,
MSPB Docket No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision at 6.
The EEOC concurred in that decision on November 22, 2019. Davis v. Department of
the Interior, MSPB Docket No. AT-0752-09-0860-P-1, Damages Petition for Review
File, Tab 3. The compensatory damages award is not relevant to the compliance issues
currently before the Board.
3 The appellant had filed a previous petition for enforcement, which she then withdrew.
Davis v. Department of the Interior , MSPB Docket No. AT-0752-09-0860-C-1,
Compliance File, Tab 3, Compliance Initial Decision. The first petition for enforcement
is not relevant to the instant proceedings.2
failing to place it in a separate accounting system and failing to permit her to use
it over an extended period of time. Id. On July 10, 2017, the administrative
judge issued a compliance initial decision granting the petition for enforcement
and directing the agency to restore the 416 hours of erroneously forfeited annual
leave, place it in a separate account reserved for hours restored pursuant to
5 C.F.R. § 550.805(g), and permit her to schedule and use leave by the end of the
leave year in progress 4 years after the date on which the separate leave account
was established. CF, Tab 8, Compliance Initial Decision (CID) at 6-7.
The agency filed a petition for review of the compliance initial decision,
which the Board denied on January 13, 2023, as untimely filed. In this Order, the
Board directed the agency to comply with the instructions in the compliance
initial decision, explained above. C-2 Order at 4-5.
In response, on March 30 and August 29, 2023, the agency submitted
pleadings acknowledging its obligations with respect to the 416 hours but stating
that it could not restore the leave because the appellant had resigned from the
agency on September 10, 2021. Davis v. Department of the Interior , MSPB
Docket No. AT-0752-09-0860-X-1, Compliance Referral File (CRF), Tab 7
at 4, 6.4 The agency instead paid the appellant a lump sum of $11,448.03 for the
leave, which it explained was the appellant’s hourly wage as of November 2021,
multiplied by the number of annual leave hours, and less taxes and applicable
deductions. CRF, Tab 7 at 5, Tab 10 at 6.
The appellant did not contest that payment is appropriate under the
circumstances or that the agency had paid her this amount, nor did she contest the
various deductions. However, she objected that the agency’s response to the
January 13, 2023 order was filed 1 day late, after the date the agency itself had
requested an extension of time. CRF, Tab 6 at 4-5. More substantively, she
4 In their pleadings, the agency and the appellant both give this date variously as
September 10, 2021, and September 10, 2022, but the documentation supplied by the
agency makes plain that the correct year is 2021. CRF, Tab 7 at 6-7. We therefore find
that both parties’ occasional references to 2022 are typographical errors.3
contended the agency was obligated to calculate the value of the 416 hours of
leave using the 2023 hourly wage for the position she had occupied, although she
had resigned nearly 2 years earlier. CRF, Tab 8 at 8-9, Tab 11 at 5. She also
asserted that the agency was required to pay her interest on the annual leave
amount, which she believes should be calculated beginning January 2017, when
the agency erroneously required her to forfeit the leave. CRF, Tab 8 at 10. As
explained below, the appellant’s calculations would provide her with a windfall
rather than restore her to the status quo ante (which is the only relief available in
a meritorious petition for enforcement), and we therefore reject them.
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. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
The Appropriate Hourly Rate
The agency stated that it calculated the lump sum for the erroneously
withheld 416 annual leave hours using the hourly rate for the appellant’s position
as of November 24, 2021. CRF, Tab 10 at 6. The agency explained that it
arrived at this date by following an Office of Personnel Management (OPM)
regulation requiring the agency to project the unused leave from the first workday
after separation, and counting all subsequent workdays and holidays until the4
leave was exhausted, and to pay out the leave using the hourly rate in effect as of
this exhaustion date. Id.; see 5 C.F.R. § 550.1204(a) (“A lump-sum payment
must equal the pay an employee would have received had he or she remained in
the Federal service until the expiration of the accumulated and accrued annual
leave to the employee’s credit.”). The appellant separated from the agency on
September 10, 2021. According to the agency’s calculations, projecting the leave
forward from that date resulted in exhaustion of the leave on November 23, 2021.
The agency therefore used the rate of pay for the appellant’s position as of
November 24, 2021. CRF, Tab 10 at 6.
As explained above, the appellant did not contest the agency’s calculations
or deductions related to the lump sum payment for the 416 annual leave hours,
except that she contended that the agency should have used the hourly rate for her
position as of the date the payment was made, March 7, 2023. CRF, Tab 11 at 5.
She did not counter the agency’s citation of the OPM regulation governing leave
lump-sum payments, 5 C.F.R. § 550.1204(a); instead, she argued that the
agency’s “illegal act” depriving her of the opportunity to use the leave during her
employment justifies “equitable relief” of granting her the present value of the
leave. CRF, Tab 11 at 5-6. She also contended that the agency’s selection of the
hourly rate was “arbitrary.” Id. at 5.
We disagree. The agency did not act arbitrarily: it properly followed OPM
regulation and correctly calculated the lump sum value of the appellant’s leave as
if it had been paid out as of her actual separation. In contrast, the appellant’s
requested calculation would improperly grant her a windfall. Rittgers v.
Department of the Army , 123 M.S.P.R. 31, ¶ 13 (2015) (stating that appellant in a
petition for enforcement is entitled to be restored to the status quo ante, but not to
receive a windfall). The appellant’s repeated exhortations to award her
“equitable” or extra relief go beyond the scope of these compliance proceedings.
As the appellant recognizes, see CRF, Tab 11 at 6, the purpose of this proceeding
is to return the parties to the status quo ante—here, to place the appellant in the5
same position she would have been in had the agency all along fully complied
with the relief granted in the Board’s original August 15, 2014 Final Order. Had
the agency never erroneously withheld the leave, the appellant might have used it
prior to her separation in September 2021. If she had not fully used it, the agency
would have paid it out as of her separation. That is precisely what the agency has
now done. No more is required. Indeed, no more is permitted. See Rittgers,
123 M.S.P.R. 31, ¶ 13.
Interest on the Lump Sum
We likewise reject the appellant’s arguments regarding interest on the
annual leave lump sum payment. The appellant argued that equitable
considerations require that: (1) she be paid interest on the lump sum payment;
and (2) such interest should be calculated starting from January 2017, when the
agency wrongfully deprived her of the use of her leave. CRF, Tab 8 at 10. As
the agency correctly noted, however, CRF, Tab 10 at 7, the Back Pay Act and its
implementing regulations—which govern the remedies awarded in this
proceeding—specify that interest is to be paid on back pay, but not on lump-sum
payments for annual leave. 5 U.S.C. § 5596(b)(2)(A) (specifying that interest is
available for back pay but not for lump -sum annual leave payments); 5 C.F.R.
§ 550.803 (same). Although, as the appellant pointed out, CRF, Tab 11 at 6-7,
two of the three cases cited by the agency on this issue did not arise out of MSPB
proceedings and are not binding on the Board, the statute and implementing
regulations themselves expressly counter the appellant’s position. Moreover, the
third case cited by the agency, a short nonprecedential decision of the Federal
Circuit arising out of an MSPB appeal, recognizes this statutory prohibition.
DeOcampo v. Department of the Army , 551 F. App’x 1000, 1003 (Fed. Cir. 2015)
(nonprecedential). We therefore find that the agency properly did not pay interest
on the lump-sum annual leave payment.6
The Appellant’s Remaining Contentions
The appellant also complained that the agency’s original response in this
compliance referral matter was filed 1 day late, and therefore should not be
considered; that the agency’s generally non-cooperative, “arrogan[t],” and
“cavalier” conduct throughout every iteration of the appellant’s proceedings
should count against it; that the agency’s noncompliance with the Board’s orders
amounts to “theft” of her annual leave; and that the discrimination claim in
appellant’s underlying case authorizes the Board to craft a broader equitable
remedy under Title VII. CRF, Tab 8 at 6-7, Tab 11 at 8-11. Again, we must
disagree.
As to the first contention, we recognize the agency’s explanation that its
motion for an extension contained a typographical error as to the date it sought,
CRF, Tab 7 at 4, and excuse the lateness on that ground; and in any event, we
required more information from both parties before rendering the instant decision.
As for the remaining contentions, we recognize that this has been an
unfortunately protracted process, due in no small part to the Board’s 5 -year lack
of quorum, which prevented us from quickly ruling on the agency’s August 2017
petition for review of the compliance initial decision. However, the length of
time taken to reach full compliance does not justify expanding the appellant’s
remedy beyond that specified in the Board’s original decision and reaffirmed in
the January 2023 Order governing the present proceeding. Nor may we, in this
proceeding, heed the appellant’s urging to craft an equitable remedy under the
auspices of Title VII. The only issue in this appeal is compliance with the
Board’s prior orders setting the appropriate remedy—not relitigation of that
remedy or of the underlying discrimination claim. See King v. Reid , 59 F.3d
1215, 1219 (Fed. Cir. 1995); Choroszy v. Department of Homeland Security ,
MSPB Docket No. PH-315H-16-0458-I-1, Final Order, ¶ 15 (Apr. 27, 2022)
(nonprecedential). The appellant correctly filed a separate proceeding seeking
compensatory damages for the agency’s discrimination against her, and in that7
appeal was awarded $20,000. Davis v. Department of the Interior , MSPB Docket
No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision. The remedy in
the instant proceeding is governed by civil service laws, and the agency has now
met its obligation under the civil service laws.
Accordingly, we find the agency in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set 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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Davis_Annette_AT-0752-09-0860-X-1_AT-0752-09-0860-C-2_Final_Order.pdf | 752-09-08 | ANNETTE DAVIS v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. AT-0752-09-0860-X-1, February 28, 2024 | AT-0752-09-0860-X-1 | NP |
2,231 | https://www.mspb.gov/decisions/nonprecedential/Traylor_Donna_E_DA-1221-17-0164-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA E. TRAYLOR,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-17-0164-W-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna E. Traylor , Lawton, Oklahoma, pro se.
Lisa R. Bloom , Fort Sill, Oklahoma, 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 individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to address the appellant’s arguments on review and find that she
made a nonfrivolous allegation that she engaged in protected activity by
disclosing information to an Inspector General (IG), we AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant filed a timely IRA appeal alleging that her former employer,
the Department of the Army, issued her a Letter of Reprimand, scheduled a
mental health appointment for her, and subjected her to a hostile and toxic work
environment, in retaliation for making protected disclosures to the IG on or about
February 23-24, 2016, and the Information Technology (IT) staff on February 22,
2016.2 Initial Appeal File (IAF), Tab 1 at 3, 13-14, 17, 22; Tab 5 at 2; Tab 10
at 1-3; Tab 18, Initial Decision (ID) at 3-4. The “protected” information that she
allegedly disclosed to the IT staff was that someone had illegally accessed her
Government email account when she was not at work. IAF, Tab 1 at 3, 10; Tab
10 at 1. The appellant described the rule and regulation that were violated as
Agency Rule 25-2 and the Fort Sill Cyber Readiness Tip Card. IAF, Tab 5 at 1.
2 The appellant stated on her appeal form that she resigned from her position on
August 8, 2016, although she was working for the agency as a Secretary when the
alleged retaliation occurred. IAF, Tab 1 at 5, Tab 9 at 7. 2
The appellant did not provide copies of either rule or regulation that the agency
allegedly violated.
The appellant further alleged that she disclosed “the access issue” to the IG
in an attempt to get assistance in obtaining computer access logs from her
agency’s IT office . IAF, Tab 1 at 13; Tab 10 at 1-2. With her appeal form, she
attached her February 29, 2016 Letter of Reprimand, a separate letter issued by
the agency on the same date offering her a medical examination, the subsequent
whistleblowing complaint that she filed with the Office of Special Counsel
(OSC), and the December 29, 2016 letter issued by OSC terminating its
investigation of her complaint and notifying her that she could seek corrective
action from the Board. IAF, Tab 1 at 10-27.
The administrative judge issued a show cause order informing the appellant
of her burden to establish jurisdiction over her claims as an IRA appeal. IAF,
Tab 3. After the appellant and the agency responded to the order, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction without holding the hearing that the appellant requested. IAF, Tabs 1
at 2; 5, 7, 9-11, 13; ID at 1 & n.1. In reaching her decision, the administrative
judge found that the appellant had exhausted her administrative remedy with OSC
and nonfrivolously alleged that her February 29, 2016 Letter of Reprimand and
referral to a mental health examination were personnel actions within the meaning
of 5 U.S.C. § 2302(a)(2). ID at 7, 9 -10. However, the administrative judge found
that the appellant failed to make nonfrivolous allegations of facts which
demonstrated that she disclosed information that she reasonably believed
evidenced a violation of law, rule, or regulation, or an abuse of authority. ID
at 9-10.
The appellant has filed a petition for review in which she disputes the
administrative judge’s finding that she failed to nonfrivolously allege that she
made a protected disclosure that was a contributing factor in the agency’s
issuance of her Letter of Reprimand and referral for a mental health examination.3
Petition for Review File (PFR) File, Tab 1 at 1. The appellant also alleges that
the administrative judge abused her discretion and denied the appellant due
process by failing to consider evidence and unfairly ruling against the appellant
on discovery issues and other requests that she made on appeal. Id. at 1-3. The
appellant resubmits certain documents that were a part of the record below. Id.
at 4-11; IAF, Tab 7 at 4-6; Tabs 8, 12. The agency has not filed a response to the
appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she made a whistleblowing 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.3 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of
Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001); Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 7 (2011). Under the Whistleblower
Protection Enhancement Act of 2012, vague, conclusory, unsupported, and pro
forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading
standard needed to establish the Board’s jurisdiction over an IRA appeal. See,
e.g., Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 14 (2014) (concluding
that to establish jurisdiction over an IRA appeal, an appellant must make a
specific and detailed allegation of wrongdoing, rather than a vague one); 5 C.F.R.
§§ 1201.4(s) (a nonfrivolous allegation must be more than conclusory), 1201.57.
The administrative judge in this appeal found, among other things, that the
appellant had exhausted her remedies with OSC, but that the disclosures she made
3 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
to the agency’s IT staff were lacking in adequate specificity to constitute a
nonfrivolous allegation of a protected disclosure. ID at 3-5, 8-9. For the reasons
discussed below, we find that the appellant’s arguments on review present no
basis for disturbing the initial decision dismissing this appeal for lack of
jurisdiction.
The appellant has not made a nonfrivolous allegation that she engaged in
whistleblowing activity.
On review, the appellant does not dispute the administrative judge’s finding
that the disclosures she made to the agency’s IT staff and agency management,
concerning her work email being accessed by an unknown person, did not satisfy
the Board’s nonfrivolous pleading standard. Neither party has challenged this
finding, and we decline to disturb it on review. The appellant argues instead that
she met the nonfrivolous pleading standard based on her disclosure to the IG.
PFR File, Tab 1 at 1-2. In her initial decision, the administrative judge did not
address the appellant’s disclosure to the IG. Thus, we consider it now.
In her OSC complaint, the appellant indicated that, on February 24, 2016,
she “[r]eported [the] access issue to [the] IG in [an] attempt to receive access logs
from [the] local IT office.” IAF, Tab 1 at 13. She did not submit a copy of her
IG complaint with her Board appeal but she alleged that her disclosure to the IG,
in addition to her disclosures to the agency’s IT staff, was a contributing factor in
the personnel actions taken against her. IAF, Tab 10 at 1. Regarding the contents
of her disclosure to the IG, the appellant alleged only that she contacted the IG
for assistance with obtaining the access logs for her computer “because [she]
knew the IG had the authority to retrieve [those] logs straight from the Defense
Information Systems Agency.”4 PFR File, Tab 10 at 1.
4 The appellant explained that the agency’s Network Enterprise Center (NEC)
investigated her claim that someone accessed her work email account on February 16,
2016, reviewed her computer access logs, and reported that no one had accessed her
computer. PFR File, Tab 10 at 1. The appellant asserted that she sought assistance
from the IG in obtaining the access logs from NEC for review by the agency’s IT staff.
Id.5
A protected disclosure includes “any disclosure . . . to the Inspector
General of an agency . . . of information which the employee . . . reasonably
believes evidences” any violation of any law, rule, or regulation, or gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(B). The test
of a reasonable belief is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the employee could
reasonably conclude that the actions evidenced one of the types of wrongdoing
listed above. Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 13 (2015).
The appellant’s alleged disclosure to the IG refers only to her identifying
an “access issue” and requesting assistance in obtaining her computer access logs
for review. We find that a reasonable person in the appellant’s position would
not have believed her allegations evidenced any situation specified in 5 U.S.C.
§ 2302(b)(8). Accordingly, we find that the appellant did not make a
nonfrivolous allegation that she made a protected disclosure to the IG that could
have served as a contributing factor in the alleged personnel actions. See Luecht
v. Department of the Navy , 87 M.S.P.R. 297, ¶ 12 (2000) (concluding that the
appellant’s statement that he met with the agency IG to report “on-going fraud in
[Resource Sharing] contracts” lacked the detail necessary to constitute a
nonfrivolous allegation of a violation of law, rule, or regulation, gross
mismanagement, gross waste of funds, abuse of authority, or danger to public
health or safety).
The appellant made a nonfrivolous allegation that she engaged in protected
activity by disclosing information to the IG.
Under 5 U.S.C. § 2302(b)(9)(C), however, an employee engages in
protected activity when she discloses information to the IG in accordance with
applicable provisions of law. We find that the appellant made a nonfrivolous
allegation that she engaged in protected activity by disclosing information to the
IG. IAF, Tab 1 at 13, Tab 10 at 1-2; see Fisher v. Department of the Interior ,6
2023 MSPB 11, ¶ 8 (finding that the appellant’s disclosure to the Office of
Inspector General constituted protected activity under 5 U.S.C. § 2302(b)(9)(C)).
Accordingly, we must determine whether the appellant has made a nonfrivolous
allegation that her protected activity was a contributing factor in the agency’s
decision to issue her a Letter of Reprimand or refer her for a mental health
examination.
The appellant did not make a nonfrivolous allegation that her protected activity
was a contributing factor in a personnel action taken against her.
To establish the Board’s jurisdiction, an appellant also must nonfrivolously
allege that her protected activity was a contributing factor in the decision to take
or fail to take, or threaten to take or fail to take, a personnel action against her.
Yunus, 242 F.3d at 1371. To satisfy the contributing factor criterion at the
jurisdictional stage of the case, the appellant need only raise a nonfrivolous
allegation that the fact of, or the content of, her protected activity was one factor
that tended to affect a personnel action in any way. Sherman v. Department of
Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015). One way to establish this
criterion is the knowledge/timing test, under which an employee may
nonfrivolously allege that the protected activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official who took the personnel action knew of the protected activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the protected activity was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1); Sherman, 122 M.S.P.R. 644, ¶ 8.
There are other ways to allege contributing factor as well. The Board will
consider any relevant evidence on the contributing factor question, including the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing or activity was personally directed at the proposing
or deciding official, and whether those individuals had a desire or motive to
retaliate. Powers v. Department of the Navy , 97 M.S.P.R. 554, ¶ 22 (2004). The7
whistleblower also may show that the official accused of taking retaliatory action
had imputed knowledge of the protected disclosure or activity by showing that
individuals with actual knowledge of it influenced the official’s action. Weed v.
Social Security Administration , 113 M.S.P.R. 221, ¶ 22 (2010).
Here, the appellant does not allege that the agency official who issued her
February 29, 2016 Letter of Reprimand and Offer of Medical Examination had
any knowledge that she made a disclosure to the IG on February 24, 2016, or was
influenced by any individuals who did have knowledge of her protected activity.
Nor does she allege that the information she disclosed to the IG was personally
directed at the individuals involved in the alleged personnel actions, or allege any
other facts to show they had a potential motive to retaliate for her protected
activity. Although the appellant addresses the strength of the agency’s evidence
supporting her Letter of Reprimand, claiming that one incident included by the
agency in her Letter of Reprimand was not justified, PFR File, Tab 1 at 2, she
does not allege any facts casting doubt on the numerous other incidents specified
by the agency as the reasons for her reprimand, see IAF, Tab 1 at 23-25.5 We
therefore find that the appellant’s vague, conclusory, unsupported allegation that
her protected activity in disclosing information to the IG was a contributing
factor in the personnel actions taken against her does not meet the nonfrivolous
pleading standard. PFR File, Tab 1 at 1-2; IAF, Tab 10 at 1-2; see Rebstock
Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12
(2015). Accordingly, we find that a reasonable person could not conclude that
the disclosure was a contributing factor in the alleged personnel actions. We
therefore affirm the administrative judge’s decision to dismiss this IRA appeal for
lack of jurisdiction.
5 The appellant does not allege any facts to establish a connection between her protected
activity and the agency’s decision to offer her a medical examination at the Army’s
occupational health clinic. 8
The appellant’s remaining arguments on review do not warrant a different
outcome.
On review, the appellant argues that the administrative judge abused her
discretion and deprived her of due process by: (1) failing to consider an
unspecified statement provided by the appellant; (2) granting the agency
additional time to file a pleading on appeal over her objection; (3) denying the
appellant’s motion to compel discovery; and (4) giving the agency an unfair
advantage “because the Agency had a responsibility to attach a Certificate of
Service . . . to [her] letter [and] to the Board[’]s as [well]” and the agency did not
address issues outlined in the unspecified letter as the basis for dismissing her
appeal. PFR File, Tab 1 at 2-3.
The appellant’s arguments, however, do not change our determination that
the Board lacks jurisdiction over this appeal. The appellant does not identify the
document that the administrative judge allegedly failed to consider. Accordingly,
she has not shown how the alleged error prejudiced her substantive rights. See
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). Moreover, an
administrative judge’s failure to mention all of the evidence of record does not
mean that she did not consider it in reaching her decision. Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table).
The remaining decisions challenged by the appellant fall within the
administrative judge’s broad scope of authority and discretion to control the
proceedings before her, and we find no reversible error here. Miller v. Federal
Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶¶ 19-20 (2014), aff’d,
818 F.3d 1361 (Fed. Cir. 2016). For example, the administrative judge denied the
appellant’s motion to compel because her motion did not comply with the
discovery procedures of 5 C.F.R. § 1201.73(c). IAF, Tabs 14, 17 at 2-3. The
appellant does not dispute this finding on review.9
Finally, to the extent that the appellant is claiming adjudicatory bias on
review, there is a presumption of honesty and integrity on the part of
administrative judges, and the Board will not infer bias based on an
administrative judge’s case-related rulings. See Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions evidence a deep-seated favoritism or
antagonism that would make fair judgment impossible. Id. We find that the
appellant’s broad, general allegation of bias on review is not sufficient to rebut
the presumption of the administrative judge’s honesty and integrity. Accordingly,
we affirm the initial decision dismissing this IRA appeal for lack of jurisdiction.
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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 14 | Traylor_Donna_E_DA-1221-17-0164-W-1__Final_Order.pdf | 2024-02-28 | DONNA E. TRAYLOR v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-17-0164-W-1, February 28, 2024 | DA-1221-17-0164-W-1 | NP |
2,232 | https://www.mspb.gov/decisions/nonprecedential/Pierce_Donald_CH-1221-17-0290-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD PIERCE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-1221-17-0290-W-1
DATE: February 28, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald Pierce , Bellbrook, Ohio, pro se.
Alana Kitchen , Wright Patterson Air Force Base, 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
dismissed his individual right of action (IRA) appeal for a lack of Board
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to 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).
BACKGROUND
The appellant is employed as a GS-11 Engineering Technician in the
agency’s Civil Engineering Group. Initial Appeal File (IAF), Tab 11 at 70. On
April 4, 2017, the appellant filed the instant IRA appeal alleging harassment and
discrimination by agency officials in retaliation for his disclosure of alleged
contracting improprieties and violations.2 IAF, Tab 1 at 5. In his initial pleading,
the appellant indicated that he previously made disclosures and filed complaints
with the Office of Special Counsel (OSC) in 2014 and 2016 concerning these
matters, as well as filed a number of union grievances and an equal employment
opportunity complaint, and “engaged” the agency’s Office of Special
Investigations. Id. The appellant also attached copies of decision letters for
several of those grievances along with copies of four of his previously filed OSC
complaints and OSC close-out letters. Id. at 7-54.
The administrative judge issued a jurisdictional order in which she apprised
the appellant of the applicable law and burden of proof requirements for an IRA
2 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the United States Code. Our decision to affirm the initial decision dismissing the
appeal for lack of jurisdiction would be the same under both pre- and post-NDAA law.2
appeal and ordered him to submit evidence and argument establishing Board
jurisdiction over his appeal. IAF, Tab 3. The administrative judge also
separately issued an acknowledgement order in which she identified the Board
procedures applicable in the appellant’s case, including the relevant discovery
procedures. IAF, Tab 2 at 3; see 5 C.F.R. §§ 1201.71-1201.85. After the
appellant submitted his jurisdictional reply, the administrative judge issued an
initial decision based on the written record without holding the appellant’s
requested hearing, in which she concluded that the appellant failed to raise a
nonfrivolous allegation of Board jurisdiction over his appeal. IAF, Tab 24, Initial
Decision (ID) at 1, 22.
In the initial decision, the administrative judge carefully reviewed the four
OSC complaints and three close-out letters the appellant submitted with his
appeal and concluded that the only disclosure the appellant exhausted3 for the
purpose of this appeal was his disclosure to his first-line supervisor in
3 In an IRA appeal, such as this one, the Board may consider only matters that the
appellant first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant exhaust
his remedies with OSC prior to filing an IRA appeal with the Board is to give OSC “the
opportunity to take corrective action before involving the Board in the case.” Ward v.
Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992). The
Whistleblower Protection Enhancement Act (WPEA) provides that, if OSC finds that
there is a substantial likelihood that the information it received discloses a violation of
the WPEA, it “shall transmit the information to the head of the agency involved for
investigation and report.” Id. (making this finding based on the same language in the
prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b), (c). These inquiries by
OSC and their transmittal to agencies for remedial action are a major component of
OSC’s work. Ward, 981 F.2d at 526. To serve exhaustion’s intended purpose, the
appellant must articulate to OSC the basis of his request for corrective action “with
reasonable clarity and precision,” giving OSC a sufficient basis to pursue an
investigation that might lead to corrective action. Ellison v. Merit Systems Protection
Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Ward, 981 F.2d 521, 526. An appellant may
demonstrate exhaustion through his initial OSC complaint, evidence that he amended
the original complaint, including, but not limited to, OSC’s preliminary determination
letter and other letters from OSC referencing any amended allegations, and the
appellant’s written responses to OSC referencing the amended allegations. Mason,
116 M.S.P.R. 135, ¶ 8. To establish Board jurisdiction, the appellant must prove
exhaustion with OSC by preponderant evidence, not just present nonfrivolous
allegations of exhaustion. 5 C.F.R. § 1201.57(c)(1).3
November 2015 that construction managers were prepaying for materials that had
not yet been installed; his claim of reprisal for that disclosure was contained in
his March and April 2016 OSC complaints.4 ID at 2-10. The administrative
judge determined that, even though the appellant did not point to any specific
law, rule, or regulation that he believed the practice violated, given the
appellant’s position and experience, his belief that agency officials were engaging
in wrongdoing was reasonable, and thus, the appellant met his burden of making a
nonfrivolous allegation that his disclosure was protected. ID at 10-11.
The administrative judge also found that the appellant claimed that he was
subject to the following personnel actions as a consequence of his protected
disclosure: (1) the lowering of his performance appraisal on or about May 28,
2015; (2) a failure to promote on or about August 12, 2015; (3) the receipt of a
counseling letter on June 18, 2015; (4) the receipt of an oral admonishment on
July 13, 2015; and (5) the receipt of an “administrative action-interim notice”
letter from his first-line supervisor dated April 11, 2016. ID at 11, 13. The
4 The appellant filed two complaints with OSC’s Disclosure Unit (DU) and two
complaints with OSC’s Complaints Examining Unit (CEU). IAF, Tab 18 at 15-21,
28-32, 39-41, 50-53. The complaints to the DU were filed in December 2014 and
March 2016. Id. at 28-32, 39-41. The complaints to the CEU were filed in December
2014 and April 2016. Id. at 15-21, 50. As the administrative judge observed,
complaints to the DU ordinarily do not satisfy the exhaustion requirement for Board
jurisdiction under 5 U.S.C. § 1214(a)(3), so the appellant failed to exhaust the matters
raised in his December 2014 DU complaint. See Sabbagh v. Department of the Army ,
110 M.S.P.R. 13, ¶¶ 10-15 (2008); Clemente v. Department of Homeland Security ,
101 M.S.P.R. 519, ¶¶ 7-13 (2006); ID at 10. Regarding the December 2014 CEU
complaint, the administrative judge determined that the appellant failed to file an IRA
appeal within 65 days of OSC’s March 2, 2015 letter notifying him that it was
terminating its investigation into that complaint, and so a challenge to the alleged
personnel actions raised in that complaint was untimely. ID at 9, 13-15. Regarding the
March and April 2016 DU and CEU complaints, as the administrative judge also noted,
in a close-out letter addressing the appellant’s April 2016 CEU complaint, OSC
identified the appellant’s “disclosure” as his statement to his supervisor in November
2015 that construction managers were prepaying for materials, even though this
statement was only included in the March 2016 DU complaint. ID at 10. Consequently,
the administrative judge treated the disclosure as exhausted for the purpose of
establishing Board jurisdiction over this appeal. ID at 10-11. We find no error with the
administrative judge’s findings in this regard.4
administrative judge then evaluated each of the personnel actions the appellant
alleged were taken in reprisal for his disclosure and concluded that he failed to
make a nonfrivolous allegation that the disclosure was a contributing factor in the
agency’s decision to take any of the alleged personnel actions. ID at 11-14.
The appellant has timely filed a petition for review of the initial decision,
arguing that: (1) the agency failed to comply with his discovery requests and the
administrative judge issued her decision before discovery was completed; and
(2) the agency did not comply with the administrative judge’s order to discuss
settlement. Petition for Review (PFR) File, Tab 1 at 4. The appellant also argues
that he provided “indisputable evidence” of mismanagement, abuse of authority,
and misuse of Government funds. Id. at 4-5. The appellant does not challenge
the administrative judge’s findings regarding exhaustion, timeliness, and the
failure to make nonfrivolous allegations regarding contributing factor. PFR File,
Tab 1. The agency has filed a response in opposition, and the appellant has filed
a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred by issuing the initial decision without identifying
the date on which the record for discovery would close.
As support for his claim that the agency failed to respond to his pending
discovery requests before the initial decision was issued, the appellant submits
the following documents in his reply to the agency’s response to the petition for
review: (1) a copy of a discovery request he asserts that he served on the agency,
dated May 15, 2017; (2) a document addressed to the agency dated June 6, 2017,
requesting that the agency produce additional documents in response to the
appellant’s discovery request and explaining why he believes the requested
documents were relevant; and (3) copies of emails exchanged between the
appellant, the agency representative, and employees of the Board’s Central
Regional Office during the period from April 5, 2017, through July 17, 2017,5
regarding discovery and a number of other procedural matters. PFR File, Tab 4
at 7-41.
As previously noted, the administrative judge identified the relevant
discovery procedures found at 5 C.F.R. §§ 1201.71-1201.85 in her April 4, 2017
acknowledgement order. IAF, Tab 2 at 3. Under 5 C.F.R. § 1201.73(d)(1), a
party must ordinarily serve initial discovery requests within 30 days after the date
on which the administrative judge issues an order to the agency to produce the
agency file. Under 5 C.F.R. § 1201.73(d)(2), recipients of a discovery request
must serve their responses no later than 20 days after the date of service of the
request. Under 5 C.F.R. § 1201.73(d)(3), a party dissatisfied with a discovery
response must serve a motion to compel a response within 10 days of the date of
service of the objecting party’s objection, or within 10 days after the time limit
for responding has expired.
Here, the original deadline for the parties to serve their discovery requests
was 30 days from the April 4, 2017 acknowledgement order, or May 4, 2017.
IAF, Tab 2 at 1, 3. After the administrative judge rejected the appellant’s initial
attempt to file his IRA jurisdictional response because it was not correctly
indexed and formatted, IAF, Tab 14, on May 4, 2017, the administrative judge
issued an order stating that “[t]he agency will have 10 days from the date the
appellant’s jurisdictional response is received to file their [sic] reply. The record
in this appeal will then close of [sic] the jurisdictional issue,” IAF, Tab 15. The
following day, on May 5, 2017, the appellant submitted a joint motion for an
extension of time to conduct discovery, which the administrative judge granted in
a May 8, 2017 order, stating that the parties “must initiate discovery not later than
May 15, 2017 .” IAF, Tabs 16-17 (emphasis in original). The administrative
judge’s order did not specify when the record for discovery would close.
Subsequently, the appellant submitted his jurisdictional response on May 10,
2017, IAF, Tabs 18-19, and the agency submitted its jurisdictional response on
May 16, 2017, IAF, Tab 20. On July 24, 2017, the administrative judge issued6
the initial decision dismissing the IRA appeal based on the written record,
concluding that the appellant failed to raise a nonfrivolous allegation of Board
jurisdiction over his appeal. ID at 1, 22.
Based on the ambiguous language in the administrative judge’s order
setting the new jurisdictional response deadlines, it is unclear whether the record
on the issue of jurisdiction closed as of the date the agency submitted its
jurisdictional response (May 16, 2017), or 10 days after the appellant filed his
jurisdictional reply (May 20, 2017). IAF, Tab 15. In the appellant’s May 19,
2017 response to the agency’s jurisdictional reply, he clearly identified that the
discovery process had been initiated pursuant to the administrative judge’s
May 8, 2017 order extending the period of time to initiate discovery, noting that
“[u]pon receipt of files, documents, and statements requested per discovery there
will be additional evidence supporting my allegations of miss management [sic],
abuse of authority and misuse of government funds.” IAF, Tab 21 at 6. In that
filing, the appellant also identified that he had served his discovery requests on
the agency on May 15, 2017. Id. at 7. Further, in a June 13, 2017 filing, the
appellant noted that of the 22 discovery requests he submitted to the agency,
documents had been provided regarding only 2 of his requests, suggesting that a
live discovery dispute existed as of that date. IAF, Tab 22 at 5.
Finally, although they were not provided to the administrative judge, along
with his reply to the agency response to his petition for review, the appellant has
produced copies of his original discovery request propounded on the agency on
May 15, 2017, PFR File, Tab 4 at 7-9, as well as his June 6, 2017 letter to the
agency attempting to resolve the discovery dispute “before [filing] a motion to
compel,” id. at 30-32. The appellant also has produced a number of emails
exchanged with agency counsel as late as July 17, 2017—1 week before the initial
decision was issued—in which the agency agreed to produce additional
documents consistent with the appellant’s discovery requests. Id. at 36-41. The
initial decision made no reference to the ongoing discovery dispute.7
Additionally, although the appellant did not file a motion to compel, neither the
administrative judge’s May 8, 2017 order extending the time to initiate discovery
nor the ambiguous May 4, 2017 order providing the jurisdictional response
deadline (which was issued prior to the order extending the period of time to
initiate discovery) alerted the appellant as to when the record for addressing
jurisdiction or completing the discovery process would close. IAF, Tabs 15, 17.
Even though the appellant’s June 13, 2017 filing was not styled as a motion
to compel, it clearly evidenced that the discovery process was ongoing and that
the parties were attempting to resolve a discovery dispute. IAF, Tab 22 at 5. As
previously noted, the administrative judge’s order granting an extension to
conduct discovery did not specify when the record on discovery would close, and
either possible reading of the administrative judge’s ambiguous May 4, 2017
order setting the new jurisdictional reply deadlines would have resulted in the
record on jurisdiction closing well before the minimum number of days
contemplated under the regulations for completing the discovery process had
elapsed, and well before when a motion to compel would have been due. IAF,
Tabs 15, 17. Given the lack of notice, we find that the administrative judge erred
by issuing the initial decision without informing the appellant as to when the
record for discovery would close.
None of the information sought in the appellant’s pending discovery requests was
relevant to the dispositive jurisdictional issue in this case or would have changed
the outcome of the initial decision, and so remand is not necessary.
Discovery is the process by which a party may obtain relevant information
from another person or a party that the other person or party has not otherwise
provided. 5 C.F.R. § 1201.72(a). Relevant information includes information that
appears reasonably calculated to lead to the discovery of admissible evidence.
Id.; see Ryan v. Department of the Air Force , 113 M.S.P.R. 27, ¶ 15 (2009);
Mc Grath v. Department of the Army , 83 M.S.P.R. 48, ¶ 7 (1999). What
constitutes relevant information in discovery is to be liberally interpreted, and8
uncertainty should be resolved in favor of the movant absent any undue delay or
hardship caused by such request. Ryan, 113 M.S.P.R. 27, ¶ 15; Mc Grath,
83 M.S.P.R. 48, ¶ 7. A party to whom a proper discovery request has been made
must either comply or “stat[e] an objection to the particular request and the
reasons for the objection.” 5 C.F.R. § 1201.73(b). Discoverable information is
not without boundaries however, and the requesting party must ultimately show
that the information sought is relevant or is likely to lead to relevant evidence.
Chandler v. Department of the Treasury , 120 M.S.P.R. 163, ¶ 10 (2013); see
5 C.F.R. § 1201.72(b).
Reviewing the discovery requests the appellant submitted with his petition
for review, the information he requested from the agency falls into one of the
following five broad categories: (1) files, reports, documents, and emails related
to projects that he argues contained excessive costs and evidence
mismanagement, misuse of funds, or abuse of authority; (2) documents related to
a position he applied for, but for which he was not interviewed or selected;
(3) emails and documents that he believes contain different information than the
versions in his possession; (4) information related to his receipt of an oral
admonishment on April 28, 2016, a letter of counseling on August 4, 2016, and a
proposed notice of suspension on November 11, 2016; and (5) requests related to
a number of other actions taken by the agency prior to his November 2015
protected disclosure. PFR File, Tab 4 at 7-9, 30-32, 34.
In his June 6, 2017 discovery request, the appellant stated that he needed
the requested discovery to support his claim that his “supervision/management
are guilty of miss management [sic], abuse of authority, and misuse of
government funds.” Id. at 30. However, an appellant need not prove that the
condition disclosed actually established a regulatory violation or any of the other
situations detailed under 5 U.S.C. § 2302(b)(8)(A)(ii); rather, the appellant must
only show that the matter disclosed was one that a reasonable person in his
position would believe evidenced any of the situations specified in 5 U.S.C.9
§ 2302(b)(8).5 Dilorenzo v. Department of Veterans Affairs , 103 M.S.P.R. 506,
¶ 7 (2006). In her findings, the administrative judge specifically determined that
the appellant met his burden in making a nonfrivolous allegation that he disclosed
agency wrongdoing with his November 2015 disclosure. ID at 11. Therefore, to
the extent that the appellant’s discovery requests sought information meant to
support his allegation that he made a protected disclosure, any additional
evidence would have been immaterial, as the appellant met his burden. Thus, the
additional evidence would not have changed the outcome of the initial decision,
and the administrative judge’s decision to issue the initial decision before the
appellant received the requested discovery did not prejudice any of his
substantive rights. See Henderson v. Office of Personnel Management ,
109 M.S.P.R. 529, ¶ 21 n.6 (2008); Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was not
prejudicial to a party’s substantive rights provided no basis for reversing an
initial decision).
Nonetheless, it is also arguable that some of the appellant’s discovery
requests sought documents or information that he could have used to meet his
burden of proving that his protected disclosure was a contributing factor in the
agency’s decision to take some of the alleged personnel actions. For example,
some of the appellant’s requests are for documents and information concerning
his nonselection for an interview for a promotion. PFR File, Tab 4 at 8.
However, the appellant admitted in filings below that the agency produced
responsive documents related to that request, and he only appears to take issue
with the agency’s decision to redact employee information for privacy reasons
5 As noted, on review the appellant argues that he provided “indisputable evidence” of
mismanagement, abuse of authority, and misuse of Government funds. PFR File, Tab 1
at 4-5. The truth or accuracy of a disclosure is not at issue in determining whether an
appellant has established his prima facie case of whistleblower reprisal, and the Board
need not make such findings at this stage of the proceedings. Thus, the appellant’s
argument on review that he proved agency wrongdoing is not a basis to disturb the
initial decision. 10
and its assertion that it no longer has some of the requested documents in its
possession. IAF, Tab 22 at 4-5, 16. Additionally, as the administrative judge
observed, this purported personnel action occurred on August 15, 2015,
approximately 3 months before the November 2015 disclosure at issue in this IRA
appeal, and therefore, the disclosure could not have been a contributing factor in
the agency’s decision not to select the appellant. ID at 11; see Johnson v.
Department of Justice , 104 M.S.P.R. 624, ¶ 26 (2007) (determining that
disclosures made after the personnel actions at issue could not have been
contributing factors in those personnel actions and do not support a nonfrivolous
allegation that the disclosures were contributing factors in the personnel actions).
Several of the discovery requests also seek documents related to the
appellant’s receipt of an oral admonishment on April 28, 2016, a letter of
counseling on August 4, 2016, and a proposed notice of suspension on
November 21, 2016. PFR File, Tab 4 at 7-9, 30-32; IAF, Tab 19 at 118-22,
173-74. However, as the administrative judge noted, all of these alleged
personnel actions were not included in the appellant’s March and April 2016 OSC
complaints, and so the appellant did not exhaust his administrative remedies with
OSC regarding these alleged personnel actions. ID at 14. Therefore, any
discovery requested regarding these personnel actions also would not have been
relevant or changed the outcome of the initial decision. See 5 C.F.R.
§ 1201.72(a) (recognizing that, for purposes of discovery, “[r]elevant information
includes information that appears reasonably calculated to lead to the discovery
of admissible evidence”).
Regarding the appellant’s discovery requests for the agency’s copies of a
number of emails and documents that he believes contain different information
than his own versions, in an email exchange between the appellant and the agency
representative dated June 16, 2017, the agency observed that the appellant already
included copies of those emails in his filings, and the appellant admitted that the
requested documents and emails are already in his possession. PFR File, Tab 411
at 7-9, 30-32, 34-35. Accordingly, this request is “cumulative or duplicative,”
and also not “reasonably calculated to lead to the discovery of admissible
evidence,” and therefore this request would not have been relevant and the
production of these documents would not have changed the outcome of the initial
decision. See 5 C.F.R. §§ 1201.72(a), (d)(1); see, e.g., Lee v. Environmental
Protection Agency , 115 M.S.P.R. 533, ¶¶ 9-10 (2010) (concluding that an
administrative judge did not abuse her discretion in denying a motion to compel
depositions because those depositions would not have provided information
reasonably calculated to lead to the discovery of admissible evidence).
Finally, regarding the remaining discovery requests, some of them do
concern purported agency actions considered by the administrative judge in the
initial decision, such as the appellant’s allegation that he was subjected to
“unjustified and inappropriate discipline” on September 24, 2014, and that he
received a nondisciplinary counseling letter in June 2015, an oral admonishment
in July 2015, and an improper performance plan in July 2015. PFR File, Tab 4
at 7-9, 30-32; IAF, Tab 18 at 51-52. However, as the administrative judge
properly identified, none of these actions constitute personnel actions as set forth
in 5 U.S.C. § 2302(a)(2)(A). ID at 15-16. Further, as the administrative judge
also noted, to the extent those actions could be considered as a part of the
appellant’s general claims of retaliation and a hostile work environment, all of
those actions took place before the November 2015 protected disclosure, and
thus, the disclosure could not constitute a contributing factor in any of the
purported personnel actions.6 Johnson, 104 M.S.P.R. 624, ¶ 26; ID at 12.
6 One of the appellant’s discovery requests—related to his receipt of an “interim -action
administrative notice” letter on April 11, 2016—did take place after his November 2015
disclosure. PFR File, Tab 4 at 8. However, as the administrative judge noted, the
appellant did not allege in his OSC complaint that this decision was taken in reprisal for
his disclosure, and instead claims that it was somehow related to disagreements with his
former supervisor dating back to 2014, so OSC did not consider it in relation to the
appellant’s OSC complaint that is the subject of this appeal. IAF, Tab 18 at 52; ID
at 13-14.12
In summary, we conclude that the administrative judge erred by issuing the
initial decision without clearly identifying when the record for discovery would
close. Nonetheless, because none of the evidence requested in the appellant’s
pending discovery requests was relevant to the dispositive jurisdictional issue in
this case, we deny the appellant’s petition for review and affirm the initial
decision finding that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction.7
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read 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 Regarding the appellant’s claim that the agency failed to comply with the
acknowledgement order’s requirement that it contact him to discuss settlement, even if
true, such a failure would not demonstrate error in the initial decision, and the appellant
has not explained how he was harmed by the agency’s failure or how his substantive
rights were prejudiced. See Mobery v. Department of the Navy , 65 M.S.P.R. 110, 115
(1994) (concluding that the agency’s failure to contact the appellant regarding
settlement did not prejudice any of his substantive rights and therefore provided no
basis for reversing the initial decision).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Pierce_Donald_CH-1221-17-0290-W-1__Final_Order.pdf | 2024-02-28 | DONALD PIERCE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-1221-17-0290-W-1, February 28, 2024 | CH-1221-17-0290-W-1 | NP |
2,233 | https://www.mspb.gov/decisions/nonprecedential/Hubbert_Thomas_SF-0752-17-0673-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS HUBBERT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-17-0673-I-1
DATE: February 28, 2024
THIS ORDER IS NONPRECEDENTIAL1
John W. Gresham , Esquire, Charlotte, North Carolina, for the appellant.
Douglas W. Frison , Esquire, APO, Armed Forces Pacific, 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 alleged removal from his School Psychologist position based on
alleged misconduct. 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).
According to the evidence of record, the agency issued the appellant a
notice dated February 8, 2017, informing him that he would be removed from
Federal service based on alleged misconduct effective February 24, 2017. Initial
Appeal File (IAF), Tab 6 at 109-11. On February 16, 2017, the appellant
submitted a brief letter stating that he “hereby resign[ed]” his position and that he
was retiring from Federal service. Id. at 106. The appellant’s letter did not set
forth an effective date for the resignation, but the parties apparently agreed that
the effective date of the resignation would be February 24, 2017, and that the
resignation would be in lieu of the removal action. Id. at 108. The appellant later
requested an extension of his resignation date to March 1, 2017, which the agency
granted. Id. The Standard Form 50 documenting the appellant’s separation from
the agency states that he resigned his position effective March 1, 2017, because of
“personal issues.” Id. at 25.
The Board retains jurisdiction over an appeal when an employee retires
when faced with an agency’s final decision to remove him. 5 U.S.C. § 7701(j);
Mays v. Department of Transportation , 27 F.3d 1577, 1579-80 (Fed. Cir. 1994);
Krawchuk v. Department of Veterans Affairs , 94 M.S.P.R. 641, ¶ 6 (2003). The
administrative judge appears to have relied on the appellant’s representation that
he intended to retire to invoke 5 U.S.C. § 7701(j) and adjudicate this appeal as a
removal appeal. IAF, Tab 19, Initial Decision at 3. However, there is no
evidence of record showing that the appellant actually retired. In particular, there
is no document in the record indicating that the appellant retired, and no
testimony was proffered at the hearing to show that he retired.
Because the evidence of record appeared to show that the appellant
resigned rather than retired, the Clerk of the Board issued a order directing the
parties to submit evidence and argument on the question of whether the appellant
resigned or retired. Petition for Review (PFR) File, Tab 6. In response, both
parties stated that the appellant resigned his position. PFR File, Tabs 7-8.2
When an employee resigns rather than retires, section 7701(j) does not
apply. Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586, ¶ 41
(2009). In such a case, the Board has jurisdiction over the appeal only if the
appellant can prove that his resignation was involuntary due to coercion, duress,
or circumstances that may constitute intolerable working conditions. Id. In
contrast to an adverse action, such as a removal action taken under 5 U.S.C.
chapter 75, a decision to resign is presumed to be a voluntary act outside the
Board’s jurisdiction, and the appellant bears the burden of showing by
preponderant evidence that his resignation was involuntary and therefore
tantamount to a forced removal. Baldwin, 111 M.S.P.R. 586, ¶ 15 (citing
Garcia v. Department of Homeland Security , 437 F.3d 1322, 1329-30 (Fed. Cir.
2006)). Because the appellant resigned his position, the administrative judge
erred by adjudicating this appeal as if it were a removal appeal within the Board’s
jurisdiction. Accordingly, a remand is necessary.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office. On remand, the administrative judge shall afford the appellant
notice of his burdens and elements of proof in an involuntary resignation case
consistent with the requirements set forth in Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985), determine whether the Board has3
jurisdiction over this appeal, and conduct such further adjudication as may be
necessary in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Hubbert_Thomas_SF-0752-17-0673-I-1__Remand_Order.pdf | 2024-02-28 | THOMAS HUBBERT v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-17-0673-I-1, February 28, 2024 | SF-0752-17-0673-I-1 | NP |
2,234 | https://www.mspb.gov/decisions/nonprecedential/Parrish_Kimberly_PH-0752-18-0050-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY PARRISH,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-18-0050-I-1
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janea J. Hawkins , Esquire, and Raymond C. Fay , Esquire, Washington,
D.C., for the appellant.
Evelyn Rose Marie Protano , Edward C. Tompsett , and Stephen Giacchino ,
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
dismissed her appeal as untimely filed. On petition for review, the appellant
argues that the agency should be judicially estopped from claiming that her
appeal is time barred. Petition for Review (PFR) File, Tab 3 at 10-11. 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).
2
we grant petitions such as 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 explain the principle of
judicial estoppel and why it does not preclude the agency from arguing that the
appellant’s appeal is untimely filed, we AFFIRM the initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In dismissing the appeal as untimely filed, the administrative judge found
the agency’s evidence regarding the appellant’s receipt of the 2015 Final Agency
Decision (FAD) more persuasive than the appellant’s. Specifically, he found that
the agency’s witnesses, whose testimony was often corroborated by
documentation, coupled with the presumption of delivery, persuaded him that the
appellant did receive the 2015 FAD, rendering her filing untimely by more than
2 years. Initial Appeal File, Tab 52, Initial Decision (ID) at 6-8. The
administrative judge further found that the appellant’s contrary evidence,
consisting largely of her testimony which was seriously undermined by her lack
of credibility, Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987); ID
at 5 n.3, and her claim that the agency misdelivered a prior FAD, was
unpersuasive and did not come close to satisfying her burden of proof. 5 C.F.R.
§ 1201.56(b)(2)(i)(B); ID at 8-12. The administrative judge found baseless the
3
appellant’s claim that the agency is estopped from arguing that her appeal was
untimely filed, reasoning that the agency’s action in 2017 was prompted by the
appellant’s misrepresentations, most significantly that she did not receive the
2015 FAD, that her misconduct does not create an estoppel against the agency,
and that, in any event, the agency challenged timeliness in its initial response to
the appeal. ID at 12. The appellant has refined the latter claim on review,
arguing that the agency should be judicially estopped from claiming that her
appeal is time barred. PFR File, Tab 3 at 10-11.
Judicial estoppel precludes a party from contradicting a tribunal’s
determination in another proceeding when the determination was based on the
position taken by the party in that case. Tompkins v. Department of the Navy ,
80 M.S.P.R. 529, ¶ 8 (1999). The doctrine is applicable to administrative
adjudications. Id. No single test determines if judicial estoppel applies to a
proceeding, but there are three factors that typically inform the decision whether
to apply the doctrine in a particular case: (1) a later position must be clearly
inconsistent with the same party’s prior position; (2) the party was successful in
the earlier proceeding in persuading the court of its position, such that “judicial
acceptance of an inconsistent position in a later proceeding would create ‘the
perception that either the first or the second court was misled’”; and (3) “the
party seeking to assert an inconsistent position would derive an unfair advantage
or impose an unfair detriment on the opposing party if not estopped.” New
Hampshire v. Maine , 532 U.S. 742, 750-51 (2001) (citations omitted);
Kavaliauskas v. Department of the Treasury , 120 M.S.P.R. 509, ¶ 9 (2014).
Consideration of these factors weighs against application of the doctrine in
this case. The agency has not taken an inconsistent position before the Board on
the issue of timeliness. Nor did the administrative judge ever accept the
appellant’s claim of timeliness. Moreover, to the extent the appellant is
attempting to rely on her own misrepresentations to claim that her appeal is
timely, it is she, not the agency, who would derive an unfair advantage.
4
Therefore, the agency is not judicially estopped from claiming that the appellant’s
appeal is untimely filed.2
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 On review, the appellant cites to two cases, presumably to support her position that
judicial estoppel should apply to preclude the agency from arguing that her appeal is
untimely filed, Cuyahoga Metropolitan Housing Authority v. United States , 65 Fed. Cl.
534 (Fed. Cl. 2005) and Data General Corporation v. Johnson , 78 F.3d 1556 (Fed. Cir.
1996). PFR File, Tab 3 at 11-12. The appellant’s argument is unavailing, however,
because in both cases, the court explained the doctrine and, weighing the factors, found
it inapplicable to estop the government from taking a particular position.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after 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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Parrish_Kimberly_PH-0752-18-0050-I-1__Final_Order.pdf | 2024-02-27 | KIMBERLY PARRISH v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-18-0050-I-1, February 27, 2024 | PH-0752-18-0050-I-1 | NP |
2,235 | https://www.mspb.gov/decisions/nonprecedential/Ramirez_Alicia_E_SF-315H-18-0711-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICIA E. RAMIREZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-18-0711-I-1
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alicia E. Ramirez , Bellflower, California, pro se.
Cheri Thanh M. Hornberger , Esquire, Los Angeles, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. On petition for review,
she argues that the agency discriminated against her and harassed her. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review.2 Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 For the first time on review, the appellant has submitted a copy of a text message
conversation with a coworker and several written statements by coworkers. We have
reviewed these documents but find that the appellant has not shown that the documents
or the information they contain were unavailable prior to the close of the record below,
despite her due diligence. Therefore, the Board will not consider them. See Grassell v.
Department of Transportation , 40 M.S.P.R. 554, 563-64 (1989); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).
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 | Ramirez_Alicia_E_SF-315H-18-0711-I-1__Final_Order.pdf | 2024-02-27 | ALICIA E. RAMIREZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-18-0711-I-1, February 27, 2024 | SF-315H-18-0711-I-1 | NP |
2,236 | https://www.mspb.gov/decisions/nonprecedential/Duncan_Sherone_L_DA-0752-18-0112-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERONE L. DUNCAN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-18-0112-I-1
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Ariya McGrew , Esquire, and Heather A. Southwell , Esquire, New York,
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
affirmed her removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the charge of
providing false information in matters of official interest and that the penalty was
unreasonable. 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. Except as expressly MODIFIED to
apply the correct analysis to the appellant’s affirmative defenses of
discrimination and retaliation, we AFFIRM the initial decision.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudicating race and sex2 discrimination claims under Title VII
and disparate treatment disability3 discrimination claims under the Rehabilitation
Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-25, 40.
Under Pridgen, the appellant bears the initial burden of proving by preponderant
evidence4 that her race, sex, and/or disability was a motivating factor in her
2 The appellant also claimed disparate treatment based on pregnancy. Discrimination on
the basis of pregnancy is a type of sex discrimination protected under Title VII.
42 U.S.C. § 2000e(k); see Thome v. Department of Homeland Security , 122 M.S.P.R.
315, ¶ 26 (2015).
3 A pregnancy-related impairment may qualify as a disability under the Rehabilitation
Act when it imposes work-related restrictions that will be substantially limiting, even
though they are only temporary. Equal Employment Opportunity Commission
Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC
No. 915.003, 2015 WL 4162723 at *19 (June 25, 2015).
4 A preponderance of the evidence is “[t]he degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
3
removal. Pridgen, 2022 MSPB 31, ¶¶ 21, 40. Here, the administrative judge
found that the appellant failed to show that her race, sex, or disability were
motivating factors in the agency’s removal action. The appellant does not
challenge these findings on review and we see no reason to disturb them.5
The appellant also alleged that the agency retaliated against her for
requesting a reasonable accommodation. Claims of retaliation for engaging in
activity protected under the Rehabilitation Act, including requesting reasonable
accommodation for a disability, are subject to a but-for causation standard.
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33; see Pridgen, 2022 MSPB
31, ¶¶ 44, 47. As noted in the initial decision, the appellant alleged that the
agency retaliated against her for requesting a reasonable accommodation when it
required her to submit weekly requests for advanced sick leave, began
investigating her, denied her request to transfer to Connecticut in December 2016,
and denied her request to work out of an office closer to her home. ID at 38-39;
IAF, Tab 8 at 14, Tab 24 at 7, 9, Tab 31 at 6. In addition, she testified that her
supervisor called her while she was on leave to ask her to do substantive work
and that he became upset when she input time for her work. ID at 39; HT
at 533-35. Although these experiences and denials may have been unpleasant, the
administrative judge implicitly found that they did not show that the appellant’s
protected activity was a motivating factor in her removal. Because the appellant
failed to satisfy the lower motivating factor standard, she necessarily failed to
meet the higher but -for standard. Desjardin, 2023 MSPB 6, ¶ 33. In any event,
the appellant does not challenge this finding on review, and we see no reason to
revisit it.
5 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claims, it is unnecessary for us
to address whether discrimination or retaliation was a but-for cause of the removal
action. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.
4
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | Duncan_Sherone_L_DA-0752-18-0112-I-1__Final_Order.pdf | 2024-02-27 | SHERONE L. DUNCAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-18-0112-I-1, February 27, 2024 | DA-0752-18-0112-I-1 | NP |
2,237 | https://www.mspb.gov/decisions/nonprecedential/Ryno_Dennis_R_CH-0752-14-0500-I-5__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS R. RYNO,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-14-0500-I-5
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis R. Ryno , Waynesville, Missouri, pro se.
Stephen O. Barlow , Ft. Eustis, Virginia, 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
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. Except as expressly MODIFIED to
find that the appellant did not make any protected disclosures or engage in any
protected activity under the Whistleblower Protection Enhancement Act of 2012
(WPEA), and to VACATE the initial decision as to the administrative judge’s
application of collateral estoppel and her determination that the agency proved it
would have removed the appellant absent an alleged protected disclosure, we
AFFIRM the initial decision.
¶2The appellant began his career with the agency in 1978, most recently
working as a GS-14 Supervisory Safety and Occupational Health Specialist at
Fort Leonard Wood in Missouri. Ryno v. Department of the Army , MSPB Docket
No. CH-0752-14-0500-I-5, Appeal File (I-5 AF), Tab 140, Initial Decision (ID)
at 1-2; Ryno v. Department of the Army , MSPB Docket No. CH-0752-14-0500-
I-1, Initial Appeal File (IAF), Tab 24 at 21. In November 2013, the agency
proposed the appellant’s removal based on allegations concerning the appellant’s
conduct toward a woman (complainant) with whom he had a personal relationship
who also worked for the agency at Fort Leonard Wood. The appellant had been
criminally charged with stalking the complainant and ultimately entered into a
plea agreement in a Missouri court, wherein he pled guilty to a single charge of
harassment. The proposed removal included two charges: conduct unbecoming
and failure to follow instructions, with 41 and 32 specifications, respectively.
IAF, Tab 24 at 596-615. After the appellant responded to the proposal, the
deciding official upheld the appellant’s removal, effective March 2014, sustaining2
all of the conduct unbecoming specifications, but only specifications 9, 10, and
13 of the failure to follow instructions charge.
¶3The appellant filed a Board appeal, and while the appeal was pending, he
withdrew his hearing request and the agency withdrew specifications 3-9 of its
conduct unbecoming charge.2 ID at 1, 23; I-5 AF, Tab 86 at 1. The
administrative judge issued a decision on the written record, sustaining
specifications 2, 10, 15-16, 18-20, 22-23, 25-38, and 40 of the conduct
unbecoming charge and specifications 9, 10, and 13 of the failure to follow
instructions charge. ID at 43-45. She further determined that the agency proved
the requisite nexus and that the appellant failed to prove each of his affirmative
defenses, including claims of due process violations, harmful procedural error,
and whistleblower retaliation. Finally, she found that the agency met its burden
of proving the reasonableness of its chosen penalty, and she affirmed the
appellant’s removal. ID at 67.
¶4In a fairly cursory argument on review, referencing a much larger argument
he presented below, the appellant suggests that the administrative judge erred in
her application of collateral estoppel in sustaining some of the conduct
unbecoming specifications. Petition for Review (PFR) File, Tab 3 at 36-37
(referencing I-5 AF, Tab 113 at 4-26, Tab 127 at 257). To the extent he is
arguing that the administrative judge applied an incorrect standard, as explained
below, we agree. Therefore, we vacate her decision to sustain specifications 23,
25-28, 30-32, and 34-37 of the conduct unbecoming charge, which was based on
her finding that the appellant was collaterally estopped from challenging the
underlying facts.
¶5In making her collateral estoppel determination, the administrative judge
applied the Board’s standards. ID at 32-33. However, in determining the
preclusive effect of a criminal conviction, the Board will apply the corresponding
2 The initial decision erroneously states that the agency also withdrew specifications
1 and 2. Compare ID at 21 n.13, with ID at 23, and I-5 AF, Tab 86 at 1.3
jurisdiction’s collateral estoppel standards. Mosby v. Housing and Urban
Development, 114 M.S.P.R. 674, ¶ 5 (2010). In other words, because the
appellant was subject to Missouri criminal charges in a Missouri state court, the
administrative judge should have applied the Missouri standards for collateral
estoppel. According to the appellant, his criminal case in Missouri was resolved
with a guilty plea and suspended imposition of sentence, and Missouri courts
have determined that such resolutions do not satisfy the aforementioned elements.
E.g., I-5 AF, Tab 113 at 8. We agree. See Director, Department of Public
Safety v. Bishop, 297 S.W.3d 96, 98-100 (Mo. Ct. App. 2009) (finding that a
police officer was not estopped in a disciplinary matter from disputing whether he
committed a crime to which he pled guilty and received a suspended sentence).
As further detailed below, we need not resolve whether the agency otherwise
proved these specifications. When more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge. Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990). Because the remaining specifications
suffice to affirm the agency’s charge and the appellant’s removal, we decline to
make findings as to whether the agency proved those specifications the
administrative judge sustained as collaterally estopped.
¶6We have considered the remaining arguments that the appellant raised on
petition for review pertaining to the charges, nexus, and the penalty, the
administrative judge’s evidentiary rulings, and his due process and harmful
procedural error defenses, but we find that none of them provide a basis to disturb
the initial decision. 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). 4
¶7As to the appellant’s claim that the agency removed him in retaliation for
his whistleblowing disclosures, when an appellant alleges reprisal for disclosures
made in the context of his own grievance under the governing collective
bargaining agreement, the disclosures are analyzed as protected activity falling
under 5 U.S.C. § 2302(b)(9), and not 5 U.S.C. § 2302(b)(8). Mudd v. Department
of Veterans Affairs , 120 M.S.P.R. 365, ¶ 6 (2013). This activity is reviewed
under the burden -shifting scheme set forth in 5 U.S.C. § 1221(e) if the grievance
falls within the confines of 5 U.S.C. § 2302(b)(9)(A)(i), i.e., the grievance seeks
to remedy retaliation for making a protected disclosure. See Elder v. Department
of the Air Force , 124 M.S.P.R. 12, ¶ 39 (2016) (explaining that a claim of reprisal
for activity protected under 5 U.S.C. § 2302(b)(9)(A)(i) must be analyzed under
the burden-shifting standards set forth in section 1221(e)); Mudd, 120 M.S.P.R.
365, ¶ 7 (explaining in the context of an individual right of action appeal that the
Board has jurisdiction over an employee’s grievance seeking to remedy an alleged
violation of 5 U.S.C. § 2302(b)(8)). A protected disclosure is a disclosure of
information that the appellant reasonably believes evidences a violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. § 2302(b)(8)(A); Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 22 (2014). The proper test for assessing whether a protected
disclosure occurred is an objective one: could a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the government evidence one of
the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A). Shannon,
121 M.S.P.R. 221, ¶ 22.
¶8The administrative judge considered the alleged disclosures and found that
the appellant met his burden of proving that just one disclosure was protected. ID
at 53-58. Specifically, the administrative judge found that the appellant made a
protected disclosure in his response to the proposed removal at issue in this5
appeal by asserting that the proposing official had failed to provide him with
performance appraisals between 2010 and 2013. ID at 57-58. She further found
that the contributing factor element was satisfied. ID at 59-60. However, the
administrative judge found that the agency proved that it would have taken the
same action in the absence of the appellant’s whistleblowing. ID at 60-64.
¶9Upon review of the record, we find that the appellant did not prove that he
made the protected disclosure referenced above, and we modify the initial
decision accordingly. Contrary to the administrative judge’s finding, the
appellant did not allege in his response to the proposed removal that the agency
improperly failed to appraise him during the four years he was on a detail
beginning after 2010. IAF, Tab 24 at 452; ID at 57.3 In fact, in his pleadings
below, the appellant did not claim that he disclosed the failure to conduct
performance appraisals, but rather alleged that the lack of appraisals was a
personnel action following other disclosures. I-5 AF, Tab 100 at 11.
¶10Further, to the extent the administrative judge found that the appellant did
not make protected disclosures in the course of his grievances, we modify those
findings. As discussed above, such disclosures are analyzed as protected activity
under 5 U.S.C. § 2302(b)(9), and not as protected disclosures under 5 U.S.C.
§ 2302(b)(8). Nonetheless, any error was harmless. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). The dispositive question remains the same as to the
appellant’s grievance activity, i.e., whether the appellant’s grievances reflect that
he previously made disclosures of information that he reasonably believed
evidenced wrongdoing under 5 U.S.C. § 2302(b)(8).4 See Mudd, 120 M.S.P.R.
365, ¶ 7.
3 In the initial decision, the administrative judge cited to deposition testimony in
discussing this alleged disclosure and not to the written response to the proposal. ID
at 57. This testimony does not reflect that the appellant made a disclosure regarding the
lack of performance appraisals during the testimony. I-5 AF, Tab 130 at 272, 316. 6
¶11The appellant reasserts disclosures he initially made in October 2005, and
again in January 2006, in both his response to a proposed suspension and the
grievance he filed after the agency effectuated that suspension. PFR File, Tab 3
at 28-29; e.g., I-5 AF, Tab 127 at 174-77, Tab 130 at 26-41. Generally speaking,
the disclosures consisted of some of the appellant’s defenses to that adverse
action, i.e., that it was tainted by a conflict of interest, the agency’s investigator
was improperly influenced, the agency improperly relied upon prior allegations,
and management had permitted his coworkers to gossip about him, thereby
creating a hostile work environment. E.g., I-5 AF, Tab 127 at 174-77, Tab 130
at 26-41. While we have reviewed the portions of the record the appellant cites
on review, we discern no basis for reaching a conclusion different from the
administrative judge. ID at 53-55. In essence, the response to the appellant’s
2005 discipline and follow-up grievance included an exhaustive list of defenses in
the form of agency improprieties. While he has directed us to those defenses, he
4 Grievances that do not seek to remedy whistleblower reprisal are covered by 5 U.S.C.
§ 2302(b)(9)(A)(ii) and may also serve as the basis for an affirmative defense. See
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016) (reflecting
that internal agency appeals in which an appellant did not seek to remedy reprisal for
whistleblowing fell under 5 U.S.C. § 2302(b)(9)(A)(ii), and should have been analyzed
under the standard in Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed.
Cir. 1986)). Nevertheless, the appellant and the attorney that represented him
throughout much of this appeal expressly chose to pursue just the whistleblower reprisal
claim and not a separate claim arising under section 2302(b)(9)(A)(ii). Compare IAF,
Tab 1 at 6 (appellant’s initial identification of affirmative defenses, which did not
include a claim of reprisal for grievance activity), with IAF, Tab 4 at 1 & n.1 (order
identifying the same affirmative defenses and providing the appellant the opportunity to
identify any others); Ryno v. Department of the Army , MSPB Docket No. CH-0752-14-
0500-I-4, Appeal File, Tab 26 (prehearing summary identifying the same affirmative
defenses and warning that in the absence of any objection, the parties would be bound
to the same set of issues); I-5 AF, Tab 62 at 9 n.4 (prehearing summary indicating that
while the appellant was alleging whistleblower reprisal, he was not alleging that the
agency retaliated against him for filing equal employment opportunity complaints or
other protected activity), Tab 73 at 17 (appellant’s express declaration that he was “not
alleg[ing] that the agency retaliated against him because of ‘the exercise of any appeal,
complaint, or grievance right’”). Accordingly, we need not consider whether the
appellant could have met the burden of proof for claims arising under 5 U.S.C.
§ 2302(b)(9)(A)(ii). 7
has not directed us to anything that would establish that he had a reasonable
belief that such defenses revealed the type of wrongdoing described in section
2302(b)(8).
¶12The appellant next reasserts a second set of disclosures that he made in
connection with a December 2010 grievance, concerning another suspension.
PFR File, Tab 3 at 29-30; e.g., I-5 AF, Tab 130 at 216, 224-25, Tabs 179-80.
Like those just discussed, the 2010 disclosures constituted some of the appellant’s
responses to his latest alleged misconduct. Generally speaking, he alleged that
his 2010 suspension was tainted by retaliation on the part of the proposing
official and a concerted effort by the proposing official to influence a witness by
encouraging her to complain about the appellant. E.g., I-5 AF, Tab 130
at 216, 224-25, Tabs 179-80. The administrative judge found that the appellant
failed to meet his burden for these disclosures. ID at 55-56.
¶13We agree with the administrative judge’s conclusion but, as discussed
above, modify the initial decision to clarify why the appellant failed to meet his
burden. The administrative judge effectively provided two alternative rationales
for why the appellant’s December 2010 disclosures were not protected—because
they were not the type of disclosure described in 5 U.S.C. § 2302(b)(8) and
because they were made solely within the grievance process. Id. However, the
latter rationale improperly relied on standards that predate the WPEA, which
governs this appeal.5 ID at 55 (citing Boechler v. Department of the Interior ,
109 M.S.P.R. 542, ¶ 9 (2008) (describing standards that applied under
whistleblower statutes before those statutes were amended with the passage of the
WPEA), aff’d per curiam , 328 F. App’x 660 (Fed. Cir. 2009)). The WPEA
expanded the grounds on which an appellant may raise an affirmative defense that
is subject to the burden shifting standards of 5 U.S.C. § 1221(e) to include, inter
alia, reprisal for the protected activity of filing a grievance with regard to
5 Although the appellant’s disclosures predated the effective date of the WPEA, because
his removal occurred after the statute went into effect, it is applicable here. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 51-52.8
remedying a violation of section 2302(b)(8). Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 12 (2015). Accordingly, whether or not the appellant’s
disclosures were made within the grievance process is not dispositive. Otherwise,
we discern no basis for disturbing the administrative judge’s findings.6
¶14Finally, under the WPEA, 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. 5 U.S.C. § 1221(e)(2); Clarke v. Department of
Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10, ¶ 21 (2014), aff’d per curiam ,
623 F. App’x 1016 (Fed. Cir. 2015). Because we modified the initial decision to
find that the appellant failed to prove that he made protected disclosures or
engaged in protected activity, we vacate the administrative judge’s determination
that the agency proved by clear and convincing evidence that it would have
removed the appellant absent his protected disclosure. ID at 60-64. Therefore,
we decline to consider the appellant’s arguments regarding this determination.
PFR File, Tab 3 at 32-35.
¶15Accordingly, we affirm the initial decision, as modified above.
6 The appellant separately suggests that, even if his December 2010 disclosures were
not protected, he was a perceived whistleblower. PFR File, Tab 3 at 29-30; see King v.
Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011) (recognizing that an individual
who is perceived as a whistleblower is still entitled to whistleblower protections, even
if she did not make protected disclosures). However, it appears that the appellant failed
to preserve this argument by raising it below. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the Board generally will not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence). Moreover, even if he did preserve the argument, the evidence
the appellant cited is not supportive. The Board will focus its analysis on the agency’s
perceptions to determine whether an appellant was perceived as a whistleblower, i.e.,
whether the agency officials involved in the personnel actions at issue believed that the
appellant made or intended to make disclosures that evidenced the type of wrongdoing
listed under section 2302(b)(8). King, 116 M.S.P.R. 689, ¶ 8. The evidence cited here
simply shows the proposing official describing the appellant as having a history of
responding to accusations about his own misconduct with accusations about the
misconduct of others, including the proposing official. I-5 AF, Tab 127 at 858, Tab 130
at 305. It does not show that the proposing official perceived the appellant as a
whistleblower.9
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.10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any11
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s12
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Ryno_Dennis_R_CH-0752-14-0500-I-5__Final_Order.pdf | 2024-02-27 | DENNIS R. RYNO v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-14-0500-I-5, February 27, 2024 | CH-0752-14-0500-I-5 | NP |
2,238 | https://www.mspb.gov/decisions/nonprecedential/Ritchie_Sean_M_PH-1221-22-0214-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN M. RITCHIE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-1221-22-0214-W-1
DATE: February 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Amanda Lynn Smith , Esquire, Buffalo, New York, for the appellant.
G. Houston Parrish , Esquire, Fort Knox, Kentucky, 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 his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision’s determination that the appellant did not
nonfrivolously allege that he made protected disclosures, AFFIRM AS
MODIFIED the initial decision’s determination that the appellant did 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).
nonfrivolously allege that his grievance was a protected activity, AFFIRM the
initial decision’s determination that only some of the agency’s actions constituted
personnel actions as defined by 5 U.S.C. § 2302(a)(2), FIND that the appellant
has made a nonfrivolous allegation that his disclosures were a contributing factor
in certain personnel actions, VACATE the remainder of the initial decision, and
REMAND the case for further adjudication in accordance with this Remand
Order.
BACKGROUND
¶2In March 2021, the agency appointed the appellant to a temporary position
as a University of Rhode Island Army Reserve Officers’ Training Corps (ROTC)
Program Recruiting Operations Officer. Initial Appeal File (IAF), Tab 1 at 15,
Tab 6 at 20. According to the appellant, in August 2021, he informed his
supervisors that the agency had not entered four incoming cadets into the Cadet
Command Information Management System (CCIMS) before they entered the
ROTC program, as required. IAF, Tab 1 at 34-35, Tab 6 at 20. Then, in
September and October 2021, the appellant alleges that he disclosed during
“several staff meetings” that the agency was not completing required Academic
Progress Reports (104Rs) on cadets each semester. IAF, Tab 1 at 35, Tab 6
at 21-22. The agency extended the appellant’s appointment on September 30,
2021, and again on November 16, 2021. IAF, Tab 1 at 56. The appellant alleges
that, in response to his disclosures, the agency assigned him with managing the
CCIMS while at the same time denying him training on the system, and tasked
him with completing all of the 104Rs in the battalion. IAF, Tab 6 at 12-13.
¶3On February 7, 2022, the appellant’s first-level supervisor issued him a
performance and conduct counseling memorandum, which contained a plan of
action for his improvement in certain areas over the next 60 days. IAF, Tab 1
at 52-54. At 2:58 a.m. the next morning, the appellant emailed his second -level
supervisor. IAF, Tab 6 at 30-31. He stated that “the situation at the University of2
Rhode Island is heading in a direction that you need to know about,” and
indicated he was attaching the counseling memorandum and his “formal rebuttal.”
Id. at 31. He stated that he “would ultimately like to file a formal grievance.” Id.
His second-level supervisor responded by identifying a Human Resources
Specialist with whom the appellant could file a grievance, and identifying another
individual with whom the appellant could schedule an appointment to meet with
the second-level supervisor. IAF, Tab 1 at 20, Tab 6 at 30. At 11:15 a.m., the
appellant forwarded this email exchange and the attachments to the two
individuals identified by his second-level supervisor. IAF, Tab 6 at 32. He again
expressed his desire to file a formal grievance. Id.
¶4At some point on February 8, 2022, the appellant’s first level -supervisor
notified the appellant of his termination, effective February 9, 2022, based on a
determination that his “services are no longer needed” and his “continued
employment does not promote the efficiency of the service.” IAF, Tab 1 at 55,
Tab 6 at 22. On February 10, 2022, the appellant filed a Formal Administrative
Grievance alleging that the counseling memorandum and termination letter were
taken in reprisal for his August and September disclosures. IAF, Tab 1 at 34-39.
¶5The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging retaliation for protected disclosures and activity in the form of a hostile
work environment, the counseling memorandum, and his ultimate termination.
Id. at 59. OSC closed its investigation and informed the appellant of his appeal
rights to the Board. Id. at 62-64. The appellant timely filed this appeal alleging
that the agency retaliated against him for reporting the agency’s failure to enter
cadets into the CCIMS and timely update the 104Rs, and for his grievance. Id.
at 7, 15-18. The administrative judge issued a jurisdictional order in which he
informed the appellant of his burden to establish Board jurisdiction over his IRA
appeal. IAF, Tab 5. The appellant responded and the agency replied. IAF,
Tabs 6-7.3
¶6Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 10. He found that
the appellant exhausted his administrative remedies with OSC. ID at 6 n.3.
However, he concluded that the appellant failed to nonfrivolously allege that he
made a protected disclosure. ID at 8-10. As for the appellant’s grievance, the
administrative judge essentially found that the appellant failed to nonfrivolously
allege that the activity was a contributing factor in the alleged personnel actions
because the agency took the alleged retaliatory actions before the appellant filed
the grievance. ID at 7-8.
¶7The appellant has filed a petition for review of the initial decision, to which
the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. On
review, the appellant submits what he claims are U.S. Army Cadet Command
(USACC) rules imposing on the agency an obligation to timely enter student
information into CCIMS and complete 104Rs each semester. PFR File, Tab 1
at 5-6, 11-12, 18-19. He further states that he requested to file a formal grievance
before he was terminated, but that the agency delayed in permitting him to file it
until after his termination. Id. at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8To establish Board jurisdiction over an IRA appeal, an appellant must show
that he exhausted his administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3),
1221(a), (e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016).4
The appellant has nonfrivolously alleged on review that he made
protected disclosures.
¶9The administrative judge concluded that the appellant failed to
nonfrivolously allege that he reasonably believed he made a disclosure of a
violation of law, rule, or regulation. ID at 8-10. He reasoned that the appellant
did not identify any laws, rules, or regulations requiring entrance of student
information into CCIMS or timely completion of 104Rs. ID at 8. At the
jurisdictional stage, an appellant is not required to identify the particular statutory
or regulatory provision that the agency allegedly violated when his statements
and the circumstances of those statements clearly implicate an identifiable law,
rule, or regulation. Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 17 (2011). The proper test for determining whether an employee had a
reasonable belief that his disclosures were protected is whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions evidenced a violation
of a law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C.
§ 2302(b)(8). Id. To the extent the administrative judge relied on the appellant’s
failure to identify any specific law, rule, or regulation in his jurisdictional
findings, we are not persuaded that this basis alone was sufficient to dismiss the
appellant’s claim.
¶10In any event, we need not determine whether the appellant’s allegations
below as to his disclosures were sufficient to establish jurisdiction. For the first
time on review, the appellant has identified two agency pamphlets that he alleges
the agency violated. PFR File, Tab 1 at 5-6, 11-12, 18-19. The Board generally
will not consider evidence presented for the first time in a petition for review
absent a showing that it was unavailable before the close of the record below
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). The appellant has not made such a showing here. However, the
Board may consider evidence submitted for the first time on review if it5
implicates the Board’s jurisdiction and warrants an outcome different from that of
the initial decision. Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7
(2013). Further, the pamphlets are publicly available. Department of the Army,
USACC Pamphlet 145-4, Enrollment, Retention, and Disenrollment Criteria,
Policy, and Procedures (Apr. 1, 2020) (USACC PAM 145-4),
https://armyrotc.army.mil/wp-content/uploads/2023/02/145-4-Enrollment-
Retention-Disenrollment-Criteria-Policy-Procedures.pdf (last visited Feb. 27,
2024); Department of the Army, USACC Pamphlet 145-10, Battalion Desk
Reference (Feb. 12, 2019) (USACC PAM 145-10), https://armyrotc.army.mil/wp-
content/uploads/2023/02/145-10-Battalion-Desk-Reference.pdf (last visited Feb.
27, 2024). In making its jurisdictional determinations, the Board may consider
matters of public record such as these pamphlets. Hessami v. Merit Systems
Protection Board , 979 F.3d 1362, 1369 n.5 (Fed. Cir. 2020) (citation omitted);
5 C.F.R. § 1201.64 (permitting the Board and administrative judges to take
official notice of matters of common knowledge or that can be verified).
¶11We need not decide here whether these pamphlets are, in fact, laws, rules,
or regulations within the meaning of the whistleblower protection statutes. At the
jurisdictional stage, an appellant need only make a nonfrivolous allegation that a
person in his position could reasonably conclude that they were. Mudd v.
Department of Veterans Affair s, 120 M.S.P.R. 365, ¶¶ 8-9 (2013). We agree with
the appellant that USACC PAM 145-4 and USACC PAM 145-10 could appear to
be agency rules to a reasonable person who, like the appellant, had no evident
legal expertise and less than 1 year of employment with the agency. See id., ¶ 9
(considering the fact that an appellant had no special expertise in legal matters or
other experience in interpreting agency regulations in determining that she met
her jurisdictional burden).
¶12We turn next to the issue of whether the appellant could reasonably have
believed that the agency violated the requirements of these pamphlets. As to the
appellant’s disclosure that the agency was not timely completing 104Rs, the6
appellant argues that such a requirement should be inferred from a statement in
USACC PAM 145-10 that an inventory should be conducted twice a year to
ensure that each cadet has a “[s]igned 104R” on file. PFR File, Tab 1 at 12. We
are not persuaded by this argument. The statement does not reflect a particular
timeline for completing the forms. Id. However, we find that the appellant has
nonfrivolously alleged that the failure to complete the 104Rs each semester
violated the USACC PAM 145-4 requirement that the agency “review the
worksheet [104R] with the Cadet each school term” and that “[a]ll items of the
worksheet must be completed.” PFR File, Tab 1 at 5, 11; IAF, Tab 6 at 11.
¶13In his disclosure concerning the CCIMS, the appellant asserted that the
agency failed to properly enter students into the CCIMS before they participated
in ROTC activities. IAF, Tab 6 at 11. The appellant alleges on review that
USACC PAM 145-4 requires that the agency “ensure” that students meet all
eligibility criteria and complete and sign the 139R form in order to enroll in the
ROTC. PFR File, Tab 1 at 6, 18-19. He also points to the statement in the
USACC PAM 145-10 that a cadet’s file includes a “[s]igned 139R.” Id. at 6-7,
12. We have examined the USACC Form 139-R, Cadet Application and
Enrollment Record, USACC-Form-139-R-Cadet-Application-and-Enrollment-
Record-OCTOBER-2023.pdf (army.mil) (last visited Feb. 27, 2024) . The stated
purposes of the form include “determin[ing] [a cadet’s] eligibility for enrollment”
in the ROTC, creating a record of his enrollment, and “record[ing] necessary
information for entering a [c]adet in the [CCIMS] database.” Id.
¶14Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction.
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. We conclude
that the appellant has nonfrivolously alleged that a reasonable person in his
position could believe, based on the USACC PAM 145-4 and USACC
PAM 145-10, that the agency was required to enter a cadet’s information in the
CCIMS before he participated in ROTC activities, but failed to do so.7
Accordingly, we find that the appellant met his jurisdictional burden as to his
104R and CCIMS disclosures.2
We agree with the administrative judge that the appellant failed to nonfrivolously
allege that his February 8, 2022 grievance was a protected activity, but clarify the
basis for this finding.
¶15On the morning of February 8, 2022, the appellant emailed his second-level
supervisor stating his intent to file a grievance.3 IAF, Tab 1 at 19-20, Tab 6
at 30-31; PFR File, Tab 1 at 4-5. The administrative judge found that the
appellant’s email did not constitute protected activity because the appellant had
not yet exercised his right to file a grievance. ID at 8 n.5. We agree that the
appellant failed to nonfrivolously allege that his February 8, 2022 email was
protected, but clarify the basis for this finding.
¶16To the extent that the administrative judge found that the appellant did not
actually exercise a grievance right, we disagree. ID at 8 n.5. An initial step
toward taking legal action against the agency for a perceived violation of
employment rights constitutes a protected activity under 5 U.S.C. § 2302(b)(9)
(A). Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶¶ 17-19
(2016). As outlined in the Department of Defense Instruction 1400.25, volume
771, the agency’s Civilian Administrative Grievance System (June 13, 2018),
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/
140025_vol771.pdf?ver=2018-06-13-074123-163 (last visited Feb. 27, 2024), an
employee may “informally present a work-related problem to his or her
immediate supervisor [and then to his second-level supervisor] before filing a
formal grievance.” IAF, Tab 1 at 34; see also Carney v. Department of Veterans
2 Because we find that the appellant nonfrivolously alleged that he reasonably believed
the agency violated a law, rule, or regulation as to his disclosures, we need not
determine if the appellant also met his burden as to any other alleged category of
wrongdoing, such as gross mismanagement, under 5 U.S.C. § 2302(b)(8).
3 The appellant also sent a similar email later the same morning to a Human Resource
Specialist and another agency employee containing the same information. IAF, Tab 6
at 32-33. The following analysis also applies to this email.8
Affairs, 121 M.S.P.R. 446, ¶¶ 5-6 (2014) (concluding that participating in an
informal grievance meeting is the exercise of a grievance right under 5 U.S.C.
§ 2302(b)(9)(A)). We find that the appellant’s email to his second-level
supervisor was an initial step toward taking legal action based on an alleged
violation of his employment rights.4
¶17Nonetheless, we agree with the administrative judge’s conclusion that the
email is not protected. The Board has jurisdiction over a claim of reprisal for an
employee “exercis[ing] . . . any . . . grievance right” on his own behalf only if he
is seeking to remedy whistleblower reprisal. McCray v. Department of the Army ,
2023 MSPB 10, ¶ 12 (quoting 5 U.S.C. § 2302(b)(9)(A)); Mudd, 120 M.S.P.R.
365, ¶ 7 (same). Vague, conclusory, unsupported, and pro forma allegations of
alleged wrongdoing do not meet the nonfrivolous pleading standard needed to
establish the Board’s jurisdiction over an IRA appeal. El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d per curiam , 663 F. App’x 921
(Fed. Cir. 2016). The only substantive allegation the appellant made in his email
is his vague statement that “the situation at the University of Rhode Island” was
not “heading in the right direction.” IAF, Tab 6 at 30-31. Further, although he
indicated in the email that he was attaching a “rebuttal” to the February 7, 2022
letter of counseling, neither the attachment nor a description of the contents of the
attachment is in the record.
¶18The appellant asserts on review that he intended his rebuttal to document
his prior disclosures to his first-level supervisor and “to bring light to the
4 Alternatively, the appellant has nonfrivolously alleged that his second-level supervisor
perceived him to be invoking his grievance rights. Even if an appellant does not allege
that he engaged in a protected activity, he may establish jurisdiction in an IRA appeal
by making a nonfrivolous allegation that the agency perceived him to have done so.
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 12 (2016), overruled
on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39.
Here, the appellant’s second-level supervisor responded to the appellant’s email stating
that he wished to file a formal grievance by directing the appellant to the person with
whom he could file such a grievance. IAF, Tab 6 at 30. At the jurisdictional stage, this
response is sufficient to suggest his second-level supervisor understood the appellant
was invoking his grievance rights.9
collective issues” that led to his counseling. PFR File, Tab 1 at 5. However, he
does not identify those disclosures or issues in the email itself or claim they were
stated in the attached rebuttal. Id. Without more, we cannot conclude that the
appellant’s February 8, 2022 email was itself a protected disclosure or that it was
protected activity within which he alleged reprisal for whistleblowing.
The administrative judge correctly found that only some of the alleged agency
actions constituted personnel actions as defined by 5 U.S.C. § 2302(a)(2).
¶19The administrative judge found that the counseling memorandum and notice
of termination clearly met the definition of “personnel action” in 5 U.S.C.
§ 2302(a)(2)(A), but that the appellant did not make a nonfrivolous allegation that
the agency’s decisions to assign him to manage the CCIMS and complete the
104Rs constituted a significant change in his duties, responsibilities, or working
conditions under 5 U.S.C. § 2302(a)(2)(A(xii). ID at 10 n.7. The parties do not
dispute these findings on review, and we decline to disturb them.
The appellant nonfrivolously alleged that his whistleblower disclosures were a
contributing factor in the alleged personnel actions.
¶20To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14.
One way to establish this criterion is the knowledge/timing test, under which an
employee may nonfrivolously allege that the official taking the personnel action
knew 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., ¶ 15.
¶21The administrative judge did not make a finding as to contributing factor
concerning the appellant’s disclosures. The appellant alleged that he made his
disclosures to several of his coworkers and supervisors, including his first-level
supervisor, who issued the counseling memorandum and termination notice. IAF,10
Tab 6 at 10-13. The appellant also alleged that the agency issued the
memorandum of counseling and terminated him from his position between 2 and
6 months after his first disclosure. IAF, Tab 1 at 52-55, Tab 6 at 10-13. The
Board has held that the timing prong of the knowledge/timing test is satisfied
when a personnel action has occurred within 1 to 2 years of the protected
disclosure or activity. Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 63. Accordingly, the appellant has nonfrivolously alleged both prongs of
the knowledge/timing test as to these personnel actions.5
ORDER
¶22For the reasons discussed above, we remand this case for further
adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 The appellant alleges on review that an agency employee mishandled cadet
scholarships. PFR File, Tab 1 at 7. He did not identify this alleged disclosure in his
response to the administrative judge’s jurisdictional order. IAF, Tab 6 at 10-12. To the
extent that he is making this disclosure for the first time to the Board, he has made his
disclosure after the alleged personnel action at issue, and therefore it cannot be
considered a contributing factor in that personnel action. Sherman, 122 M.S.P.R. 644,
¶ 8 (2015). If the appellant is alleging that he made this disclosure to the agency prior
to its actions against him, he may raise it on remand to the administrative judge,
consistent with the administrative judge’s orders. See Moncada v. Executive Office of
the President, Office of Administration , 2022 MSPB 25, ¶ 12 (stating that the issue of
jurisdiction is always before the Board, and may be raised at any time during a Board
proceeding). If the appellant does so, he must still establish jurisdiction over the
disclosure, including proving that he exhausted it with OSC.11 | Ritchie_Sean_M_PH-1221-22-0214-W-1__Remand_Order.pdf | 2024-02-27 | SEAN M. RITCHIE v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-22-0214-W-1, February 27, 2024 | PH-1221-22-0214-W-1 | NP |
2,239 | https://www.mspb.gov/decisions/nonprecedential/Dove_Gerald_L_PH-3443-20-0094-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD L. DOVE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-3443-20-0094-I-1
DATE: February 27, 2024
THIS ORDER IS NONPRECEDENTIAL1
Shaun Frederick Owens , Esquire, Upper Marlboro, Maryland, for the
appellant.
Michael L. Hoyle , Esquire, Aberdeen Proving Ground, Maryland, 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 involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed by the agency as a Supervisory Police Officer
in the Directorate of Emergency Services (DES) at a U.S. Army Installation
Command in Maryland. Initial Appeal File (IAF), Tab 1 at 20. In March 2018,
the agency announced a “window of opportunity” in which employees could
apply for Voluntary Early Retirement Authority (VERA)/Voluntary Separation
Incentive Pay (VSIP). IAF, Tab 3 at 19-36, Tab 7 at 35. On March 23, 2018, the
appellant submitted a fiscal year 2018 Buy-Out Application, stating that he was
pursuing incentive pay for optional retirement with a requested retirement date of
April 29, 2018. IAF, Tab 3 at 38, 40. The appellant provided the following
justification for the VSIP: “Currently, my position has been offered/accepted
placing me in an Over-hire Position.” Id. at 40. On March 30, 2018, the
appellant sent a memorandum to the Garrison Commander regarding his request,
stating that his “conventional retirement date” was July 2019. IAF, Tab 7 at 26.
He maintained that the agency had hired someone for his position on March 14,
2018, placing him in an over-hire position, so that there was “no conflict to
impair approval of the Buyout (VSIP) incentive.” Id.
On April 20, 2018, the Director of Human Resources (HR) notified the
appellant via email that the agency had denied his request for a VSIP. Id. at 25.
The email stated that the appellant was “in an authorized position even though
DES proactively recruited to backfill [his] position prior to [his] retiring,” and
that his “position [could not] be restricted or abolished as it is critical to [the
agency’s] mission.” Id. According to the appellant, on April 24, 2018 he met
with the Director of DES and the Garrison Commander to discuss the agency’s
denial of his application. IAF, Tab 3 at 46. The appellant retired from the
agency, effective April 29, 2018. IAF, Tab 1 at 20. 2
On May 7, 2018, 8 days after the effective date of his retirement, the
appellant sent a memorandum to the Garrison Commander challenging the denial
of his VSIP. IAF, Tab 7 at 27-29. He repeated his contention regarding the
agency’s purported “illegal hire” for his position that had taken place 2 weeks
prior to his application for early retirement. Id. at 27. The appellant argued that
the hiring forced him out of his position, placed him in an over-hire position, and
“even if retirement was withdrawn gave [him] no recourse” because he would no
longer have his DES Police Captain position. Id. The appellant also asserted that
the Garrison Commander and the Director of DES stated that even if he withdrew
his early retirement there would be no Police Captain position for him at DES,
and instead he would “probably be carried as excess somewhere on APG,”
placing him in a RIF/over hire position. Id. at 28. Finally, the appellant
complained that the Garrison Commander had waited to inform him of the denial
of his VSIP request until after his retirement ceremony and that he had “assumed”
that a negative response to his application would have been “given immediately
and without delay.” Id. The appellant subsequently filed an equal employment
opportunity (EEO) complaint alleging that the agency discriminated against him
on the basis of age when it placed him in an over-hire position and then denied
his VSIP request. IAF, Tab 7 at 31-32. Although he initially requested a hearing,
he withdrew the request and requested a final agency decision (FAD) with Board
appeal rights, stating that his complaint was “most akin to a claim of constructive
retirement” and therefore a mixed-case complaint. Id. at 32. The agency issued a
FAD on November 14, 2019, finding that the appellant had not shown that he was
subjected to age-based discrimination. Id. at 31, 50.
The appellant timely filed the present appeal, alleging that his retirement
was tantamount to a constructive discharge. IAF, Tab 1 at 6-11. He alleged that
the HR Director had specifically instructed him to state on his VSIP application
that his position had been offered to and accepted by another individual, placing
him in an over-hire position. Id. at 7. The appellant further alleged that he had3
been told by the Army Benefits Center that he qualified for optional retirement
under VSIP. Id. at 8.
In an acknowledgment order, the administrative judge characterized the
appellant’s appeal as a “denial of [his] request for VERA/VSIP” and informed
him that the Board may not have jurisdiction over his appeal. IAF, Tab 2 at 2.
She did not provide jurisdictional notice regarding alleged constructive actions
such as an involuntary retirement. Id. at 2-3. Instead, the administrative judge
informed the appellant of four possible bases of jurisdiction over a denial of
VERA/VSIP, including as a personnel action taken in retaliation for making a
protected disclosure or engaging in protected activity, discrimination based on
uniformed service, or a denial in violation of veterans’ preference rights. Id. In
response to the acknowledgment order, the appellant argued that his appeal
concerned two issues: (1) the denial of his VSIP application, and (2) whether the
information that agency officials provided to him during his application process
was knowingly inaccurate, provided with intent to induce him to retire, and led to
his constructive retirement. IAF, Tab 3 at 4-5. The appellant argued that he had
made nonfrivolous claims of constructive retirement because of the statements
made regarding his eligibility for VSIP from the Director of HR and benefits
center employees. Id. at 7-8.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2,
Tab 8, Initial Decision (ID) at 1, 5. The administrative judge found that the
appellant failed to make nonfrivolous allegations that his retirement was
involuntary. ID at 3-5. She found that the appellant had failed to nonfrivolously
allege that he had been misled by the agency and that he had reasonably relied on
the misinformation to his detriment. ID at 5. Finally, the administrative judge
found that the appellant’s age discrimination claim was not an independent source
of Board jurisdiction. Id.4
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant argues that the administrative judge
erred in finding that he failed to raise nonfrivolous allegations that his retirement
was involuntary. PFR File, Tab 1 at 9-15. He maintains that, due to the
statements of agency officials, he reasonably believed that the agency’s
promotion of another individual to take his position “divested him of a job” and
placed him in an over-hire position, such that he would be unable to return to his
position if he withdrew his retirement application and could be subject to
relocation or reduction in grade. Id. at 5, 13-14; IAF, Tab 3 at 7-8. The appellant
also repeats his allegations that the Director of HR provided to him the “specific
language” to use in his VSIP application regarding the over-hire position and that
benefits center employees informed him that he qualified for optional retirement
under VSIP. PFR File, Tab 1 at 6, 13; IAF, Tab 1 at 7, Tab 3 at 7. He argues that
the administrative judge erroneously determined that the Director of HR was
unlikely to have made the statement regarding the VSIP application, in large part
due to the language in her email later denying the request. PFR File, Tab 1 at 10.
Finally, the appellant challenges the administrative judge’s finding that his two
prior applications and denials for VSIP demonstrated his understanding of the
voluntary nature of his retirement. Id.
Retirements and resignations are presumed to be voluntary, but the Board
has jurisdiction over an appeal filed by an employee who has retired if his
retirement was involuntary and tantamount to a forced removal. See Parrott v.
Merit Systems Protection Board , 519 F.3d 1328, 1332 (Fed. Cir. 2008) (internal
citations omitted). The presumption that a retirement is voluntary can be rebutted
by evidence showing that the retirement was the result of agency
misrepresentation. Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶ 95
(2010). Where such a claim is made, an appellant must show the following:
(1) the agency made misleading statements; and (2) he reasonably relied on the
misinformation to his detriment. Id. The touchstone of the analysis of whether a
retirement is involuntary is whether the employee made an informed choice.
Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586, ¶ 16 (2009). A
decision made “with blinders on,” based on misinformation or lack of
information, cannot be binding as a matter of fundamental fairness and due
process.” Id. (quoting Covington v. Department of Health and Human Services ,
750 F.2d 937, 943 (Fed. Cir. 1984)). An agency must provide information that is
not only correct in nature but adequate in scope to allow an employee to make an
informed decision. Baldwin, 111 M.S.P.R. 586, ¶ 16. This includes an obligation
to correct any erroneous information on which it has reason to know an employee
is relying. Id.
An appellant bears the burden of proving Board jurisdiction by
preponderant evidence.2 5 C.F.R. § 1201.56(b)(2)(i)(A). An appellant is entitled
to a jurisdictional hearing if he presents nonfrivolous allegations3 of Board
jurisdiction. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling him to a hearing, the administrative judge may consider the
agency’s documentary submissions; however, to the extent that the agency’s
evidence constitutes mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive . Id. Although the administrative judge failed to
provide the appellant with proper jurisdictional notice regarding constructive
2 A preponderance of the evidence is that “degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).6
actions, the parties briefed this issue in their responses to the acknowledgment
order and the initial decision set forth the proper jurisdictional standard. IAF,
Tab 2 at 2-3, Tab 3 at 6-8, Tab 7 at 6-9; see Mapstone v. Department of the
Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (stating that an administrative judge’s
failure to provide an appellant with proper jurisdictional notice can be cured if
the initial decision puts the appellant on notice of what he must do to establish
jurisdiction).
The agency argues in its response to the petition for review that the
“appellant alone asserts that he was given misinformation by the Director of
Human Resources” (emphasis in original) and that the assertion is not supported
by the evidentiary record. PFR File, Tab 3 at 7. However, the administrative
judge erred to the extent that she weighed the evidence at the jurisdictional stage
of the appeal in finding that “it appear[ed] unlikely that [the Director of HR] told
the appellant to claim that he was in an over-hire situation” in his VSIP
application based on her email denying the request as set forth in the agency’s
evidence file. ID at 4; IAF Tab 7 at 25; see Ferdon, 60 M.S.P.R. at 329; see also
Dumas v. Merit Systems Protection Board , 789 F.2d 892, 894 (Fed. Cir. 1986)
(stating if the alleged facts are sufficient to support a prima facie case of
involuntariness, the issue cannot be summarily determined adversely; the
petitioner is entitled to an evidentiary hearing on the issue). In addition, although
the administrative judge dismissed the appellant’s arguments regarding his
detrimental reliance on the misinformation regarding his retirement qualification
status because he “did not attempt to withdraw his request for optional
retirement” in the 9 days between the agency’s notification of the VSIP denial
and his retirement date, she failed to address the appellant’s claims regarding the
agency’s misinformation and his reliance thereon that he would be unable to
return to his Police Captain position if he withdrew his retirement request and
could be subject to reductions in force and other employment uncertainty. ID
at 4; IAF, Tab 1 at 7-9, Tab 3 at 7-8. 7
The record evidence demonstrates that the appellant has made the same
allegations regarding the misinformation about his qualification for VSIP and the
implications of the agency’s hiring of another individual for his position on his
job status since he applied for the VSIP. In his EEO complaint, he made the same
allegations as in his jurisdictional response regarding the Director of HR’s
instructions regarding his VSIP application as well as his belief that the hiring of
the other individual for his position placed him in an over-hire position and that
the Garrison Commander and the Director of DES told him there would be no
place for him at DES if he withdrew his early retirement. IAF, Tab 1 at 7-9,
24-25, 28-29, Tab 3 at 6-8. Moreover, the record suggests that the agency had
reason to know that the appellant was relying on mistaken information that he
qualified for optional retirement under the VSIP due to being in an over-hire
position from his statements both in his application and his March 30, 2018
“Garrison Employee Canvas Response Buyout (VISP) FY 2018” memorandum to
the Garrison Commander. IAF, Tab 1 at 15-16; see Baldwin, 111 M.S.P.R. 586, ¶
16. Further, the appellant alleged that the agency did nothing to correct the
appellant’s erroneous belief in his VSIP qualification or over-hire status until
after his retirement ceremony. IAF, Tab 1 at 8-10, 18. He also asserted that the
Garrison Commander and the Director of DES told him during their
post-ceremony meeting (but prior to the effective date of his retirement) that
“even if [he] withdrew [his] early retirement there would be no Police Captain
position for [him] at DES” and that he “would probably be carried as excess.” Id.
at 18. If true, the appellant would have reasonably relied on the statements that
he was in an over-hire position, eligible for VSIP, and not able to return to his
existing position if he withdrew his request for early retirement from the relevant
agency officials in HR, the benefits center, and his chain of command.
Therefore, we find that the appellant has made a nonfrivolous allegation
that his retirement was involuntary because he materially relied on agency
misinformation regarding his retirement. See Morrison v. Department of the8
Navy, 122 M.S.P.R. 205, ¶¶ 8-10 (2015) (finding that the appellant’s allegation
that an agency official improperly told him that he would lose his retirement
benefits if he were removed, in addition to record evidence demonstrating that the
agency has reason to know that appellant was relying on the misinformation,
constituted a nonfrivolous allegation that he was subjected to a constructive
removal); Aldridge v. Department of Agriculture , 110 M.S.P.R. 21, ¶¶ 11-12
(2008). Because the appellant has presented nonfrivolous allegations of Board
jurisdiction, he is entitled to a jurisdictional hearing. See Ferdon, 60 M.S.P.R.
at 329.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Dove_Gerald_L_PH-3443-20-0094-I-1__Remand_Order.pdf | 2024-02-27 | GERALD L. DOVE v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3443-20-0094-I-1, February 27, 2024 | PH-3443-20-0094-I-1 | NP |
2,240 | https://www.mspb.gov/decisions/nonprecedential/Brown_Robin_E_AT-3443-18-0608-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN E. BROWN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-3443-18-0608-I-1
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Christopher D. Brown , Nashville, 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 her appeal of the agency’s decision to reassign her 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. Except as expressly MODIFIED to
clarify that the Board lacks jurisdiction over the appeal because the appellant did
not make a nonfrivolous allegation that she suffered a reduction in grade or pay
as result of the agency’s reassignment, we AFFIRM the initial decision.
The administrative judge found that the Board lacks jurisdiction over the
appellant’s appeal because she voluntarily accepted the agency’s
management-directed reassignment and the reassignment did not result in a loss
of grade or pay. On petition for review, the appellant argues that the
administrative judge erred in finding that she voluntarily accepted the
reassignment. Petition for Review (PFR) File, Tab 1 at 7-10. We acknowledge
the appellant’s arguments concerning the involuntariness of her reassignment,
however, the administrative judge need not have made findings concerning this
issue because the Board lacks jurisdiction over a reassignment, involuntary or
otherwise, that does not also involve a reduction in pay and/or grade.2 See, e.g.,
Loggins v. U.S. Postal Service , 112 M.S.P.R. 471, ¶ 10 (2009) (stating that, in
order for a reassignment to fall within the Board’s adverse action jurisdiction
2 The appellant also argues that the Board has jurisdiction over her appeal because the
agency’s decision to reassign her was not based on legitimate management
considerations. PFR File, Tab 1 at 8 n.2. Although the Board may review the propriety
of an agency’s decision to reassign an employee in the context of a removal appeal
based upon an appellant’s refusal to accept a management-directed reassignment, see,
e.g., Cobert v. Miller, 800 F.3d 1340, 1349-50 (Fed. Cir. 2015), such circumstances are
not present here. 2
under 5 U.S.C. chapter 75, it must result in a reduction in grade or a reduction in
pay); Lopez v. Department of the Navy , 108 M.S.P.R. 384, ¶ 18 (2008) (stating
that the Board generally lacks jurisdiction over reassignments that do not include
a reduction in grade or pay). Here, it is undisputed that the appellant’s
reassignment did not alter her pay or grade. Accordingly, the administrative
judge properly found that the appellant failed to raise nonfrivolous allegations of
Board jurisdiction and the appellant’s arguments on review do not provide a basis
for reversal of the initial decision.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 | Brown_Robin_E_AT-3443-18-0608-I-1__Final_Order.pdf | 2024-02-27 | ROBIN E. BROWN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-3443-18-0608-I-1, February 27, 2024 | AT-3443-18-0608-I-1 | NP |
2,241 | https://www.mspb.gov/decisions/nonprecedential/Miles_Quentin_DC-0752-18-0198-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUENTIN MILES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-18-0198-I-1
DATE: February 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Joseph Hughes , Esquire, Suitland, Maryland, for the appellant.
Kimberly M. Mitchell and Kaymi Ross , Springfield, 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
sustained the appellant’s removal. On petition for review, the appellant argues
that the administrative judge erred in not granting his motion for sanctions
against the agency and in finding that the agency’s charge was sustained, that he
did not establish his claims of harmful error or his claim of disability
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discrimination, and that removal is not a reasonable penalty for the sustained
charge. Generally, we grant petitions such as 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 | Miles_Quentin_DC-0752-18-0198-I-1__Final_Order.pdf | 2024-02-27 | QUENTIN MILES v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-18-0198-I-1, February 27, 2024 | DC-0752-18-0198-I-1 | NP |
2,242 | https://www.mspb.gov/decisions/nonprecedential/Lee_DannySF-844E-18-0754-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-18-0754-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
anny Lee , Poway, California, pro se.
Shaquita Stockes and Heather Dowie , 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) that denied his application for disability retirement under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
On petition for review, the appellant argues that he has new evidence
supporting his disability retirement claim, including medical documentation
showing that he is suffering from an undiagnosed stomach problem, pancreatitis
and kidney cysts, depression, and constant pain. Petition for Review (PFR) File,
Tab 1 at 4-5. The appellant also argues that the initial decision sustaining OPM’s
decision denying his application for disability retirement in this case is contrary
to the decision in his involuntary resignation appeal filed against his former
employing agency. Id. at 3; see Lee v. Social Security Administration , MSPB
Docket No. SF-0752-18-0753-I-1, Initial Appeal File, Tab 27, Initial Decision
(0753 ID). The appellant also takes issue with conclusions drawn in the initial
decision, including the assertion that the move from the position of Case Intake
Technician to Senior Case Technician was a promotion, and argues that the
testimony from his former supervisor was not credible and that the supervisor
perjured himself. PFR File, Tab 1 at 4-5. The appellant also provides copies of
additional medical documentation and of emails he exchanged with the agency
representative during the pendency of his appeal. Id. at 6-38.
After considering the appellant’s arguments and reviewing the record, we
discern no reason to disturb the initial decision. In particular, we agree with the
administrative judge’s finding that the appellant has failed to show that his hip
condition caused a deficiency in his performance, attendance, or conduct, or that2
it was incompatible with useful and efficient service or retention in his position.2
Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 14-28; see 5 U.S.C.
§ 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see Rucker v. Office of Personnel
Management, 117 M.S.P.R. 669, ¶ 10 (2012).
Regarding the medical records the appellant submits for the first time on
review, the appellant has not shown that any of this information is both new and
material. PFR File, Tab 1 at 6-34; s ee Okello v. Office of Personnel Management ,
112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d), the
Board will not consider evidence submitted for the first time with a petition for
review absent a showing that it is both new and material). The first set of
medical records is dated November 15, 2018, before the November 20, 2018 close
of record in this case, and therefore these medical records are not “new.” PFR
File, Tab 1 at 6-14; See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980) (explaining that, under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time on review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence) .
The second set of medical records is dated August 21, 2019, after the record
2 One of the conditions the appellant discusses in his petition review—that he suffers
from depression—was briefly addressed by the administrative judge in the initial
decision. PFR File, Tab 1 at 4; Tab 6 at 4, 6; see Initial Appeal File (IAF), Tab 16,
Initial Decision (ID) at 17 n.7. The administrative judge acknowledged that both the
appellant’s FERS disability retirement application and OPM’s reconsideration decision
referenced the fact that the appellant had a prescription for antidepressant medications
and mentioned his claim that he suffered from the side effects of taking antidepressants,
but the administrative judge concluded that OPM’s decision noted that the appellant had
not submitted any medical evidence to support a diagnosis of depression, and that the
bulk of the supporting materials in the appellant’s application for FERS disability
retirement focused on his condition of avascular necrosis of the left hip. ID at 17 n.7.
Consequently, the administrative judge concluded that depression was not the basis
upon which the appellant sought a FERS disability retirement, and informed him that he
could file a new application on these grounds if he were so inclined. Id. We agree with
the administrative judge’s determination and find no error in this regard. See Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on the issue of credibility);
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (same).3
closed in this appeal. Id. at 15-34. However, these additional medical records
are not material, and therefore do not warrant a different outcome in this appeal.
Okello, 112 M.S.P.R. 563, ¶ 10. This second set of records is largely comprised
of a list of medications the appellant is currently taking, self-reported medical
issues, and laboratory blood and urinalysis results, as opposed to specific medical
diagnoses. PFR File, Tab 1 at 15-34. To the extent the medical records do
provide diagnostic information, they do not identify or explain how the
appellant’s condition rendered him unable to provide useful and efficient medical
service during the relevant period for the purpose of determining his eligibility
for a FERS disability retirement. Additionally, most of this second set of records
includes testing and diagnostic information concerning the appellant’s various
conditions during the period from July 22, 2019, onward, and therefore do not
explain how his conditions became disabling while he was employed in his
position, which is required to demonstrate entitlement to a FERS disability
retirement. See Henderson v. Office of Personnel Management , 109 M.S.P.R.
529, ¶ 8 (2008).
Further, to the extent the appellant is arguing on review that he is suffering
from additional diagnosed and undiagnosed conditions, including pancreatitis and
kidney cysts, as the administrative judge noted in the initial decision, the only
condition OPM considered for the appellant’s disability retirement application
was his hip condition, and if the appellant wishes to seek disability retirement for
any other condition beyond his hip condition he must file a new disability
retirement application with OPM.3 See ID at 17 n.7. The appellant would have
the right to appeal an adverse final OPM decision to the Board. See 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308. Accordingly, we also have not considered this
second set of medical records because the documents contained therein are not
material to the outcome of this appeal.
3 As the administrative judge correctly noted, any such application would be subject to
timeliness considerations and the Board makes no representation about the timeliness of
any potential application.4
With respect to the appellant’s argument that the administrative judge’s
decision in this disability retirement appeal is contrary to the decision in his
involuntary resignation appeal, there is no support for this assertion. PFR File,
Tab 1 at 3; see 0753 ID. The instant appeal concerns the appellant’s application
for a FERS disability retirement and is directed at OPM, while the other appeal
concerns the appellant’s claim that his resignation was involuntary and was
directed at his former employing agency, the Social Security Administration. The
administrative judge in the appellant’s involuntary resignation appeal dismissed
that appeal for lack of Board jurisdiction, concluding that the appellant failed to
make a nonfrivolous allegation that his resignation was involuntary, and nothing
in that decision is inconsistent with the decision reached by the administrative
judge in the instant appeal. See 0753 ID.4
Regarding the appellant’s argument that his former supervisor “perjured”
himself, there is similarly no support for this claim. PFR File, Tab 1 at 3, 5;
Tab 6 at 4-5. In his petition for review, the appellant argues that his former
supervisor perjured himself regarding the issues of “leave and removal of
telework,” but he does not specifically identify what testimony he believes
constitutes perjury. PFR File, Tab 1 at 5; see PFR File, Tab 6 at 5. The appellant
appears to be referring to a series of questions he asked his supervisor during
cross-examination regarding why his number of telework days was reduced from
3 days per week to 2 days per week, and eventually, to 1 day per week. IAF,
Tab 19, Hearing Compact Disc 2 (HCD 2) (testimony of the appellant’s former
supervisor). In response to the question, the supervisor testified that, after
management determined that the amount of non-portable work had increased to a
level that required employees to perform the additional work on-site, the
appellant, along with a number of other employees, had their number of allowable
4 On February 23, 2024, the Board denied the appellant’s petition for review in his
separate involuntary resignation appeal and affirmed the initial decision in that matter.
Lee v. Social Security Administration , MSPB Docket No. SF-0752-18-0753-I-1, Final
Order (Feb. 23, 2024).5
telework days reduced in a manner consistent with the union contract. Id. In a
follow-up question, the appellant alleged that he was the only employee who had
his telework days reduced, which the appellant’s former supervisor explicitly
denied, reasserting that other employees similarly had their telework days
reduced in a manner consistent with the union contract to the point that the
agency could meet its non -portable work requirements. Id. Aside from generally
asserting that the supervisor “perjured” himself in this testimony, the appellant
has not provided any contrary evidence regarding this issue on review.
Additionally, in the initial decision, the administrative judge declined to credit
the appellant’s testimony on this point, concluding that the appellant’s testimony
was “exaggerated,” and we defer to the administrative judge’s credibility
determination in this regard. ID at 19-20; see Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board must give deference
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so).
Similarly, regarding the appellant’s allegation that his supervisor perjured
himself in his testimony concerning the appellant’s leave requests, although
difficult to discern, the appellant appears to restate his argument that, despite his
supervisor’s testimony otherwise, he was denied requested leave and was
threatened with absence without leave. PFR File, Tab 1. At the hearing, the
appellant’s former supervisor testified that he generally approved the appellant’s
requests to use annual leave or to grant credit hours in lieu of sick leave when he
ran out of sick leave. HCD 2 (testimony of the appellant’s former supervisor).
Additionally, the administrative judge considered and rejected the appellant’s
assertion in the initial decision, concluding that it was not credible because it was
in conflict with the appellant’s own concession that he was allowed to regularly
use requested leave, and with his supervisor’s testimony that the appellant did not6
have any attendance issues. ID at 18. Accordingly, we find no reason to disturb
the administrative judge’s findings in this regard.
After fully considering the filings in this appeal, we conclude that 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 RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Lee_DannySF-844E-18-0754-I-1_Final_Order.pdf | 2024-02-26 | DANNY LEE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-18-0754-I-1, February 26, 2024 | SF-844E-18-0754-I-1 | NP |
2,243 | https://www.mspb.gov/decisions/nonprecedential/Smith_Javell_J_CH-0714-18-0404-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAVELL J. SMITH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-18-0404-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
avell J. Smith , South Holland, Illinois, pro se.
Robert Vega , 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 removal appeal for failure to prosecute. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115).
We have reviewed the record below and find that the administrative judge
did not abuse her discretion in dismissing the appeal with prejudice for failure to
prosecute. The record reflects that the appellant failed to appear for a prehearing
conference and a status conference as well as failed to respond to the
administrative judge’s affirmative defense order or her order to submit prehearing
submissions. The administrative judge warned the parties that, due to the
statutory deadlines set forth in 38 U.S.C. § 714, the deadlines for the prehearing
and hearing would be strictly adhered to. IAF, Tab 10. Additionally, she later
warned the appellant that his failure to file prehearing submissions within the
deadline and failure to appear for the prehearing conference would result in the
dismissal of his appeal for want of prosecution. IAF, Tab 14. Based upon the
appellant’s failures to respond to the administrative judge’s orders and participate
in the status conference and prehearing conference, we agree with the
administrative judge that the sanction of dismissal with prejudice is appropriate.
See, e.g., Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 7 (2015).
The appellant’s proffered explanation on review does not provide a basis
for reversal. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011).
In addition, the appellant’s arguments concerning the merits of his removal are
not relevant to the issue before the Board to the extent that they do not
demonstrate that he exercised due diligence in the proceedings below or establish
any error in the initial decision. After fully considering the filings in this appeal,
we conclude that the petitioner has not established any basis under section
3
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be 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 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.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. | Smith_Javell_J_CH-0714-18-0404-I-1_Final_Order.pdf | 2024-02-26 | JAVELL J. SMITH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-18-0404-I-1, February 26, 2024 | CH-0714-18-0404-I-1 | NP |
2,244 | https://www.mspb.gov/decisions/nonprecedential/Reyes_Miguel_P_SF-0752-13-0153-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MIGUEL P. REYES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-13-0153-C-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
eff T. Schrameck , Esquire, and Joel J. Kirkpatrick , Esquire, Canton,
Michigan, for the appellant.
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 compliance initial
decision, which dismissed his petition for enforcement of a settlement agreement
as untimely because it was not filed within a reasonable amount of time after the
appellant learned of the purported breach of the agreement. On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, the appellant argues that the administrative judge erred in determining
that the appellant first learned of the agency’s purported breach of the agreement
in November 2016. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 Even if we were to accept as true the appellant’s argument that he did not have “actual
knowledge” of the agency’s purported breach of the agreement until he suffered the
consequences of the breach, when his pending job offer from the Department of
Homeland Security was rescinded in September 2017, we would still find that the
appellant’s petition for enforcement—filed nearly 4 months later—was not filed within
a reasonable amount of time after he learned of the purported breach. See Petition for
Review File, Tab 1 at 8. Other than asserting that he was waiting until he had secured
legal counsel to file a petition for enforcement, the appellant has not offered any
explanation for his untimeliness. See McCoy v. U.S. Postal Service , 112 M.S.P.R. 256,
¶ 8 (2009), aff’d, 360 F. App’x 132 (Fed. Cir. 2010) (observing that that a party’s lack
of legal counsel or inability to obtain legal counsel does not establish good cause for an
untimely filing); Block v. Defense Logistics Agency , 40 M.S.P.R. 198, 200, aff’d,
889 F.2d 1099 (Fed. Cir. 1989) (Table) (same).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 | Reyes_Miguel_P_SF-0752-13-0153-C-1_Final_Order.pdf | 2024-02-26 | MIGUEL P. REYES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-13-0153-C-1, February 26, 2024 | SF-0752-13-0153-C-1 | NP |
2,245 | https://www.mspb.gov/decisions/nonprecedential/Larnard_Theodore_G_NY-3330-18-0168-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THEODORE GRAHAM LARNARD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-3330-18-0168-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
aren Sanders , Esquire, Rochester, New York, for the appellant.
Georgette Gonzales-Snyder , Esquire, Syracuse, 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 for lack of jurisdiction 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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, except as expressly MODIFIED by this Final Order
to DENY the request for corrective action as untimely and VACATE the
administrative judge’s finding that the appellant failed to state a claim upon
which relief can be granted.
On petition for review, the appellant argues that the sworn affidavit he
submitted below is sufficient evidence to show that he was misled by a
Department of Labor (DOL) investigator about his right to file a VEOA complaint
with DOL and that this misrepresentation warrants the equitable tolling of the
time limit to file his VEOA complaint. Petition for Review (PFR) File, Tab 1
at 4-5. He also challenges the administrative judge’s finding that he failed to
articulate a VEOA claim. Id. at 5-7. Finally, the appellant has filed a reply to the
agency’s opposition to his petition for review in which he includes an October 24,
2018 letter from DOL stating that its Veterans’ Employment and Training Service
(VETS) spoke with the appellant on May 21, 2015, regarding his termination as a
result of nepotism in the workplace; he argues that this letter supports his sworn
affidavit stating that he was misled by a DOL investigator.2 PFR File, Tab 4 at 4,
7. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
2 The agency has moved to file an additional pleading requesting permission to respond
to the additional letter the appellant submitted with his reply. PFR File, Tab 7 at 4. As
set forth below, we have not considered the letter, and the agency’s motion is denied. 2
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The letter itself
was not available before the record closed below; however, the appellant’s
petition for review reflects that he did not file a Freedom of Information Act
request for records from VETS until August 28, 2018, the day after the initial
decision was issued. PFR File, Tab 1 at 8-9. The appellant has not explained
why he did not pursue this information prior to the close of the record; thus, he
has not shown due diligence in pursuing the information, and we need not
consider it.
Our review of the record reflects that the administrative judge properly
found that the appellant untimely filed a complaint with DOL alleging a violation
of his veterans’ preference and that equitable tolling of the statute of limitations
to file such a complaint was not warranted. Initial Appeal File (IAF), Tab 14,
Initial Decision (ID) at 4-5; see 5 U.S.C. § 3330a(a)(2)(A) (providing that a
complaint alleging a violation of 5 U.S.C. § 3330a(a)(1)(A)-(B) must be filed
with DOL within 60 days after the date of the alleged violation); Gingery v.
Office of Personnel Management , 119 M.S.P.R. 43, ¶ 17 (2012) (providing that
the 60-day time limit set forth in 5 U.S.C. § 3330a(a)(2)(A) is subject to equitable
tolling). Even accepting as true the appellant’s assertion that a DOL investigator
incorrectly told him that he must pursue his equal employment opportunity (EEO)
claim before filing a complaint with DOL, the appellant, who has been
represented by counsel since prior to his communications with the DOL
investigator, failed to file a VEOA complaint until 16 months after the agency
issued a final decision regarding his EEO complaint and 13 months after he filed
a civil action in U.S. district court. IAF, Tab 1 at 20-21, Tab 7 at 49-78. The
appellant has not shown that he acted diligently in preserving his legal rights;
thus, equitable tolling of the time limit to file his VEOA complaint with DOL is
not warranted. See Gingery, 119 M.S.P.R. 43, ¶ 17 (citing Irwin v. Department of3
Veterans Affairs , 498 U.S. 89, 96 (1990), for the proposition that equitable relief
is typically extended only sparingly and in situations where the complainant has
actively pursued his judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been “induced or tricked by his
adversary’s misconduct into allowing the filing deadline to pass”).
In finding that the appellant had failed to timely file his complaint with
DOL, however, the administrative judge improperly dismissed the appeal for lack
of jurisdiction. ID at 4-5. An appellant’s failure to meet the 60-day time limit
for filing a DOL complaint under 5 U.S.C. § 3330a(a)(2)(A) is not a failure to
exhaust administrative remedies that deprives the Board of jurisdiction over a
VEOA claim. Garcia v. Department of Agriculture , 110 M.S.P.R. 371, ¶¶ 8-13
(2009); see Gingery, 119 M.S.P.R. 43, ¶ 16 n.3 (discussing the holding of
Garcia). Rather, when an appellant files an untimely complaint with DOL and
equitable tolling does not apply, the request for corrective action must be denied
based on a failure to meet the time limit for filing a complaint with DOL.
Garcia, 110 M.S.P.R. 371, ¶ 13; see Gingery, 119 M.S.P.R. 43, ¶ 16 n.3.
Because we conclude that the administrative judge properly found that the
appellant filed an untimely complaint with DOL and equitable tolling is not
warranted, this case should not be dismissed for lack of jurisdiction. The initial
decision is modified to deny the appellant’s request for corrective action under
VEOA because he has failed to meet the time limit for filing a complaint with
DOL.
Additionally, because the administrative judge found the appeal to be
untimely and dismissed the appeal for lack of jurisdiction, she did not properly
reach the issue of whether the appellant failed to state a claim upon which relief
can be granted. ID at 5; see White v. U.S. Postal Service , 114 M.S.P.R. 574, ¶ 11
(2010) (holding that dismissal for failure to state a claim is not a proper
disposition if an appellant fails to establish jurisdiction over his appeal because
this disposition goes to the merits of the appeal, which the Board cannot resolve4
if it lacks jurisdiction). Because we affirm the administrative judge’s finding that
the appellant’s request for corrective action was untimely and deny the request
for corrective action on this basis, we do not reach this issue and have vacated the
administrative judge’s finding that the appellant failed to state a claim upon
which relief can be granted.3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 The Board has the authority to decide a VEOA appeal on the merits, without a hearing,
when there is no genuine dispute of material fact and one party must prevail as a matter
of law. Garcia, 110 M.S.P.R. 371, ¶ 13 n.4; Haasz v. Department of Veterans Affairs ,
108 M.S.P.R. 349, ¶ 9 (2008). We have decided this case without a hearing because
there is no genuine dispute of material fact and the agency must prevail as a matter of
law.
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 | Larnard_Theodore_G_NY-3330-18-0168-I-1_Final_Order.pdf | 2024-02-26 | THEODORE GRAHAM LARNARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-3330-18-0168-I-1, February 26, 2024 | NY-3330-18-0168-I-1 | NP |
2,246 | https://www.mspb.gov/decisions/nonprecedential/Dickson_Jacob_R_DE-1221-17-0392-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACOB R. DICKSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-17-0392-W-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ames M. Allen , Esquire, Memphis, Tennessee, for the appellant.
Muneeza Ilahi and Thomas J. Herpin , 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
denied his request for corrective action in this individual right of action appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review 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 | Dickson_Jacob_R_DE-1221-17-0392-W-1_Final_Order.pdf | 2024-02-26 | JACOB R. DICKSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-17-0392-W-1, February 26, 2024 | DE-1221-17-0392-W-1 | NP |
2,247 | https://www.mspb.gov/decisions/nonprecedential/Hall_Shoneka_L_CH-0714-18-0418-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHONEKA L. HALL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-18-0418-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clinton D. Hall , Indianapolis, Indiana, for the appellant.
Kyle C. Mardis , Indianapolis, Indiana, 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 of the agency’s removal action taken under 38 U.S.C. § 714
as untimely filed. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the initial decision’s analysis of the Board’s authority to waive or toll the
filing deadline of an appeal filed under 38 U.S.C. § 714, we AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
By notice dated April 25, 2018, the agency informed the appellant of her
removal for alleged misconduct, effective May 4, 2018. Initial Appeal File (IAF),
Tab 5 at 16-19. The notice further informed the appellant that she could file an
appeal of her removal with the Board “not later than 10 business days after the
effective date” of the removal action. Id. at 17.
On June 3, 2018, the appellant filed this appeal by mail. IAF, Tab 1 at 28.
She indicated in her appeal that she received the removal notice on April 28,
2018. Id. at 3. She further stated that, according to the 2013 version of the Board
appeal form she used to file her appeal, “I understand that I have 30 days to file
my appeal.” Id. at 6. After the agency filed a motion to dismiss the appeal as
untimely filed, to which the appellant did not respond, the administrative judge
scheduled a telephonic status conference. IAF, Tab 7. The appellant did not
appear for the status conference. Thereafter, the administrative judge issued an
Order to Show Cause in which she informed the appellant that her appeal
appeared to be untimely filed and that she must show that her appeal was timely
3
filed or that good cause existed for the delay in filing. IAF, Tab 8 at 1-2. The
appellant did not respond to the administrative judge’s order.
The administrative judge issued an initial decision in which she dismissed
the appeal as untimely filed by 20 days without a showing of good cause. IAF,
Tab 10. The appellant has filed a petition for review in which she argues the
merits of her appeal but does not address the timeliness issue. Petition for
Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition for review. PFR File, Tab 3.
An appeal of a removal action taken under 38 U.S.C. § 714, such as this
one, “may only be made if such appeal is made not later than 10 business days
after the date of such removal.” 38 U.S.C. § 714(c)(4)(B); Ledbetter v.
Department of Veterans Affairs , 2022 MSPB 41, ¶ 6. The appellant’s removal
was effective May 4, 2018. IAF, Tab 5 at 16, Tab 6 at 4. Under 38 U.S.C.
§ 714(c)(4)(B), her appeal was due on or before May 17, 2018. She filed her
appeal on June 3, 2018, and, thus, her appeal was untimely filed by 17 days. The
remaining question, therefore, is whether the Board may waive or toll this
statutory deadline.
A deadline prescribed by statute or regulation may be waived when:
(1) the statute or regulation itself specifies circumstances in which the time limit
will be waived; (2) an agency’s affirmative misconduct precludes it from
enforcing an otherwise applicable deadline under the doctrine of equitable
estoppel, unless the application of equitable estoppel would result in the
expenditure of appropriated finds in contravention of statute; and (3) an agency’s
failure to provide a mandatory notice of election rights warrants the waiver of the
time limit for making the election. Ledbetter, 2022 MSPB 41, ¶ 8. The Board
has also recognized that the doctrine of equitable tolling may be available under
certain circumstances to toll a statutory deadline in an untimely filed appeal. Id.
The statutory time limit for filing an appeal under 38 U.S.C. § 714 cannot
be waived under the first basis because Congress did not provide for it. Id., ¶ 9.
4
It cannot be waived for “good cause shown,” id., and we find that the
administrative judge erred by applying a good cause standard in this appeal.
In addition, 38 U.S.C. § 714 does not require the agency to notify
employees of their election rights or any filing deadlines associated with those
elections, and there is similarly no regulatory notice requirement. Ledbetter,
2022 MSPB 41, ¶ 10. Thus, the deadline cannot be waived under the third basis.
The deadline could potentially be subject to equitable estoppel or equitable
tolling. Id., ¶ 11. However, equitable tolling is a rare remedy that is to be
applied in unusual circumstances and generally requires a showing that the
appellant has been pursuing her rights diligently and some extraordinary
circumstances stood in her way. Id., ¶ 13. We find that the appellant has not met
this burden. The record reflects that the agency provided her with accurate notice
of her right to file a Board appeal and the deadline for doing so, and that she
received this notice before the effective date of the removal action. IAF, Tab 1
at 3, Tab 5 at 16-17. The appellant has not explained why she chose to disregard
the notice provided by the agency and rely instead on a statement on the obsolete
Board appeal form she filed. She also has not explained why she did not contact
the Board office identified in the agency’s notice to ask for clarification. The
appellant has not alleged that she was induced or tricked by the agency’s
misconduct into allowing the deadline to pass. Indeed, she did not respond to the
agency’s motion to dismiss or the Order to Show Cause and on review, she does
not address the timeliness issue at all. Under these circumstances, we find that
the appellant has not demonstrated that she acted with due diligence in pursuing
her appeal or that any extraordinary circumstances stood in the way of her timely
filing. See Ledbetter, 2022 MSPB 41, ¶ 13 (finding that equitable tolling was not
available even when the agency provided the appellant with an incorrect
statement of the deadline for filing an appeal). Therefore, assuming that
equitable relief is available to excuse the appellant’s untimely appeal, she has not
shown that she is entitled to it.
5
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.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Hall_Shoneka_L_CH-0714-18-0418-I-1_Final_Order.pdf | 2024-02-26 | SHONEKA L. HALL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-18-0418-I-1, February 26, 2024 | CH-0714-18-0418-I-1 | NP |
2,248 | https://www.mspb.gov/decisions/nonprecedential/Worrell_LeroySF-0752-17-0429-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEROY WORRELL,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-17-0429-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ustin Prato , San Diego, California, for the appellant.
Lauren Leathers , 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
affirmed his removal for unacceptable conduct. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed by the agency as a health technician in San
Diego, California. Initial Appeal File (IAF), Tab 6 at 17. On March 22, 2017,
the agency proposed his removal on one charge of unacceptable conduct. IAF,
Tab 6 at 31-33. The charge contained one specification, which alleged the
following:
On 11 July 2014, you were informed by [a] Personnel Security
Specialist that your computer access was suspended. On 12 July
2016, you entered a closed office and, in front of two staff members,
used [another staff member’s] computer while she was still logged-
on but in another room attending to a patient. When questioned, you
recalled entering the closed office at issue but denied using a
computer.
Id. at 31. After receiving the appellant’s oral reply, the deciding official issued a
final decision, removing him from Federal service. Id. at 19-22.
The appellant filed a timely appeal with the Board, IAF, Tab 1, and the
parties submitted joint stipulations, wherein the appellant stipulated that his
position required him to have access to the computer system, and that it required
that he carry out duties free from constant supervision, IAF, Tab 17 at 4. He
further stipulated that, on July 11, 2016, he was made aware that his computer
access had been suspended. Id. 2
Following a hearing, the administrative judge issued an initial decision
finding that the agency proved its charge by preponderant evidence, IAF, Tab 20,
Initial Decision (ID) at 11-13, and that the appellant failed to prove his
affirmative defense of harmful procedural error,2 ID at 13-14. She also found that
the agency proved that removal was a reasonable penalty and that it promoted the
efficiency of the service. ID at 13-17.
The appellant has filed a petition for review, arguing that the administrative
judge did not properly weigh the evidence and that the penalty of removal is not
reasonable. Petition for Review (PFR) File, Tab 1 at 5-9. The agency has filed a
response, to which the appellant has replied. PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
Similar to a charge of conduct unbecoming a Federal employee, a charge of
unacceptable conduct is a generic charge and has no specific elements of proof;
the agency establishes the charge by proving that the appellant committed the acts
alleged under this broad label and that the conduct was improper, unsuitable, or
detracted from the appellant’s character or reputation. Canada v. Department of
Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010); Miles v. Department of the
Army, 55 M.S.P.R. 633, 637 (1992). Generally, an agency is required to prove its
charges in an adverse action appeal by preponderant evidence.3 5 U.S.C.
§ 7701(c)(1)(B).
2 The appellant claimed that the agency committed harmful error when the deciding
official made a determination on an action previously taken against him for the same
alleged misconduct. IAF, Tab 13 at 6. The administrative judge relied on testimony
from a human resource specialist, who stated that a first notice of proposed removal was
rescinded because references to certain agency policies were no longer accurate. ID at
14. The administrative judge found that the appellant failed to identify a specific
agency policy or procedure that prohibits the rescission of a proposed action and a
reissuance of the action at a later time based on the same issues, and that he, therefore,
failed to prove that the agency committed a harmful procedural error. Id. The appellant
has not challenged this finding on review, and we find no reason to disturb it.
3 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q)3
The administrative judge properly weighed the evidence in concluding that the
agency proved the charge of unacceptable conduct.
At the hearing, the two coworkers named in the proposed notice of removal
both testified that an office mate was out of the room and had left her Common
Access Card (CAC) in the keyboard of her computer. IAF, Tab 19, Hearing
Compact Disc (HCD) (testimony of both coworkers). Both coworkers further
testified that, while they were in the office, the appellant walked in, leaned over
the absent office mate’s computer, and put his hand on the mouse. Id. Both
testified that they believed that he used the mouse to print a document because
they both observed the print icon appear on the screen. Id.
The appellant also testified at the hearing, claiming that, despite previously
stipulating that he was made aware on July 11, 2016, of the suspension of his
computer access, he did not learn of the suspension until either July 12 or July 13,
2016. HCD (testimony of the appellant). He further testified that he entered the
office to get a sticky note to write down a phone number and noticed that the
absent office mate’s computer screen was blank. Id. He testified that he did not
touch the mouse or keyboard, that he left the room within 5 seconds, and that he
did not print any document from the computer. Id. During his testimony, he
admitted that the agency’s computers can idle for approximately 15 to 20 minutes
before they timeout. Id.
When, as here, there is conflicting testimony concerning the appellant’s
conduct, and it is impossible to believe the testimony of witnesses on opposing
sides, an administrative judge must make credibility determinations to properly
resolve this issue. Vicente v. Department of the Army , 87 M.S.P.R. 80, ¶ 7
(2000). In the initial decision, the administrative judge assessed the credibility
of, among others, the two coworkers who were present in the office and the
appellant, pursuant to the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987). ID at 11-13. In doing so, she credited the
coworkers’ testimony, but did not credit the appellant’s. Id. Based primarily on4
her credibility determinations, she concluded that the agency met its burden to
prove the charge by preponderant evidence. ID at 5-13.
On review, the appellant does not appear to challenge these credibility
determinations, but, rather, he argues that he was entitled to a negative inference
because the agency failed to produce highly probative evidence including the
following: (1) evidence regarding how a computer locks out after a certain
amount of time if the CAC is left in; and (2) evidence regarding what documents
the appellant allegedly printed. PFR File, Tab 1 at 5-7.
Generally, the Board will not draw a negative inference from a lack of
specific evidence where it would not have been superior to other evidence in the
record and would have contributed only marginally to the agency’s satisfaction of
its burden of proof. Shustyk v. U.S. Postal Service , 32 M.S.P.R. 611, 614-15,
aff’d, 831 F.2d 305 (Fed. Cir. 1987). Here, the appellant was charged with
accessing a coworker’s computer less than 1 day after learning that his computer
access was suspended. IAF, Tab 6 at 31. We find that any evidence regarding
the amount of time it takes for a computer to lock out is not superior to the
testimonial evidence from the appellant’s coworkers who witnessed the incident
and would only contribute marginally to the agency’s ability to meet its burden.
Moreover, the charge and specification do not allege that the appellant printed
anything at all. Id. Thus, not only would evidence regarding what the appellant
allegedly printed not be significantly probative, but the agency would not have
been required to prove that anything was printed in the first instance in order to
meet its burden. As such, we find that the appellant was not entitled to a negative
inference due to the agency’s nonproduction of the described evidence, and,
therefore, we find the administrative judge properly weighed the evidence before
her.
The penalty of removal is reasonable.
The appellant challenges on review the deciding official’s assessment of
the penalty of removal. PFR File, Tab 1 at 7-9. When all of the agency’s charges5
are sustained, the Board will review the agency-imposed penalty only to
determine if the agency considered all relevant factors and exercised management
discretion within the tolerable limits of reasonableness. Ellis v. Department of
Defense, 114 M.S.P.R. 407, ¶ 11 (2010).
At the hearing, the deciding official testified that he completed a Douglas4
factor checklist to decide the appropriate penalty wherein he weighed aggravating
and mitigating factors. HCD (testimony of the deciding official); IAF, Tab 6
at 24-26. He testified that the appellant must be able to work alone without
supervision, but that he could no longer trust him to handle sensitive information.
HCD (testimony of the deciding official). He further testified that he considered
other penalties, but, given the severity of the offense, the timing of the
notification that the appellant’s access was suspended with the timing of the
misconduct, the appellant’s denial of the misconduct, and his lack of remorse, he
found removal to be the appropriate penalty. Id. In the initial decision, the
administrative judge found that the deciding official properly weighed the
Douglas factors and that the penalty of removal did not exceed the bounds of
reasonableness. ID at 16.
On review, the appellant argues that the deciding official improperly relied
on his defense of the case as an aggravating factor. PFR File, Tab 1 at 7. He
asserts that the statements regarding his lack of remorse demonstrate error in the
penalty analysis because it is inappropriate to consider an appellant’s denial of
misconduct as an aggravating factor. Id. (citing Smith v. Department of the Navy ,
62 M.S.P.R. 616, 621 (1994)).
To the extent the deciding official considered the appellant’s denial of his
misconduct as showing a lack of remorse, we find this to be error. Smith,
62 M.S.P.R. at 621. Nonetheless, we find that, due to the seriousness and
severity of the appellant’s misconduct, the nature of the appellant’s position,
which is one that requires trust and the handling of sensitive information without
4 Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). 6
supervision, and the fact that the appellant was on notice that his computer access
was suspended, the penalty of removal is reasonable. Martin v. Department of
Transportation, 103 M.S.P.R. 153, 157 (2006), aff’d, 224 Fed. App’x 974 (Fed.
Cir. 2007) (stating that, in assessing whether the agency’s selected penalty is
within the tolerable limits of reasonableness, the most important factor is the
nature and seriousness of the misconduct and its relation to the employee’s duties,
position, and responsibilities); see Quillen v. Department of the Treasury ,
96 M.S.P.R. 154, ¶ 10 (2004) (reversing an administrative judge’s mitigation of a
removal penalty where, despite no prior discipline and several years of service
with positive performance evaluations, an appellant was warned against
unauthorized computer usage, yet continued to engage in such usage), aff’d,
134 F. App’x 449 (Fed. Cir. 2005). Accordingly, we will not disturb the agency’s
selected penalty of removal.
Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Worrell_LeroySF-0752-17-0429-I-1_Final_Order.pdf | 2024-02-26 | LEROY WORRELL v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-17-0429-I-1, February 26, 2024 | SF-0752-17-0429-I-1 | NP |
2,249 | https://www.mspb.gov/decisions/nonprecedential/Michell_Michael_A_DC-0752-17-0729-I-1_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. MICHELL,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-17-0729-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John V. Berry , Esquire, and Vanessa J. Myers , Reston, Virginia, for the
appellant.
Daniel Patrick Doyle , Quantico, 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
affirmed his removal and denied his affirmative defenses. On petition for review,
the appellant makes the following arguments: (1) the agency failed to prove the
charge by preponderant evidence; (2) the agency violated his rights under the
Uniformed Services Employment and Reemployment Rights Act of 1994; (3) 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).
agency violated his due process rights; (4) the affirmative defense of laches
should bar his removal; and (5) the penalty of removal is outside the bounds of
reasonableness. Generally, we grant petitions such as 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.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 The agency filed a response to the appellant’s petition for review, which was untimely
filed by 5 minutes. Petition for Review (PFR) File, Tab 5. In the appellant’s
subsequent reply, he asks that the Board not consider the agency’s response given its
untimeliness. PFR File, Tab 6. Because the appellant has set forth no basis to disturb
the initial decision in his petition for review, we need not consider the agency’s
response.
3 After the close of the record on review, the agency submitted a motion to file an
additional pleading, seeking to submit a reply to the appellant’s reply. PFR File, Tab 8.
Given the disposition of this appeal, we deny the motion.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
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. 1510.6
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 | Michell_Michael_A_DC-0752-17-0729-I-1_Final Order.pdf | 2024-02-26 | MICHAEL A. MICHELL v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-17-0729-I-1, February 26, 2024 | DC-0752-17-0729-I-1 | NP |
2,250 | https://www.mspb.gov/decisions/nonprecedential/Singleton_Lisa_C_DA-1221-17-0336-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA C. SINGLETON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-17-0336-W-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
aniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.
Douglas W. Hales , Herlong, California, for the agency.
Everett F. Yates , JBSA Ft. 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 and the agency has filed a
cross petition for review of the initial decision, which denied the appellant’s
request for corrective action in this individual right of action appeal. On review,
the parties argue that the administrative judge erred by finding that: the Board
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
has jurisdiction over this appeal; the appellant failed to prove she made a
protected disclosure; the appellant showed by preponderant evidence that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C); the appellant
showed by preponderant evidence that her protected activity was a contributing
factor in a personnel taken against her; and the agency proved by clear and
convincing evidence that it would have taken the same personnel actions absent
any protected activity. Generally, we grant petitions such as these only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
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 submits a number of documents with her petition for review.
Three of these documents are already in the record below. Compare Petition for
Review (PFR) File, Tab 1 at 25-28, 52-58 with Initial Appeal File, Tab 1
at 42-46, Tab 27 at 425-27, 445-46. Evidence that is already a part of the record
is not new. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).
The remaining documents all predate the record below and appear to have no
relevance to the issues on appeal. PFR File, Tab 1 at 29-51. The appellant has
not explained why, despite her due diligence, she could not have submitted them2
before the record closed below. Because the documents were not previously
unavailable and because they do not warrant a different outcome in this appeal,
we have not relied upon them. Russo v. Veterans Administration , 3 M.S.P.R. 345,
349 (1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
With her response to the agency’s cross petition for review, the appellant
has submitted an additional document. PFR File, Tab 7 at 30. The agency has
filed a motion to strike this document. PFR File, Tab 9. The appellant has not
explained why she could not have submitted this letter before the close of the
record below despite her due diligence, nor has she explained the relevance of the
document to her appeal. As with the documents the appellant submitted with her
petition for review, the appellant has not shown that this letter is new and
material evidence warranting an outcome different from that of the initial
decision. In light of our disposition of this appeal, the agency’s motion to strike
is moot.
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. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Singleton_Lisa_C_DA-1221-17-0336-W-1_Final_Order.pdf | 2024-02-26 | LISA C. SINGLETON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-17-0336-W-1, February 26, 2024 | DA-1221-17-0336-W-1 | NP |
2,251 | https://www.mspb.gov/decisions/nonprecedential/Jacobs_Harry_DC-0752-18-0534-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARRY JACOBS, JR.,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DC-0752-18-0534-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harry Jacobs, Jr. , Bowie, Maryland, pro se.
Jenny Knopinski and Laura Ames , 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. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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. | Jacobs_Harry_DC-0752-18-0534-I-1__Final_Order.pdf | 2024-02-26 | null | DC-0752-18-0534-I-1 | NP |
2,252 | https://www.mspb.gov/decisions/nonprecedential/Duenas_Nathan_S_SF-0752-18-0215-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHAN S. DUENAS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0215-I-1
DATE: February 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
P
aul E. Carreras , Esquire, Roseville, California, for the appellant.
Christine J. Yen , Stockton, 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 agency
failed to prove the charge of Lack of Candor because the circumstances do not
reflect that he intended to deceive the agency on his 2015 Electronic
Questionnaire for National Security Positions, SF-86. He reasserts his claim that
the agency committed a prohibited personnel practice under 5 U.S.C. § 2302(b)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
(10). Finally, he disputes the administrative judge’s weighing of the Douglas
factors and argues that she abused her discretion when she denied several of his
witnesses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)
(providing a nonexhaustive list of factors relevant to penalty determinations and
observing that the Board’s review of an agency -imposed penalty is essentially to
assure that the agency conscientiously considered the relevant factors and struck a
responsible balance within tolerable limits of reasonableness ). Generally, we
grant petitions such as 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 as to the reason for denying the appellant’s prohibited
personnel practice claim and to incorporate the Board’s findings in its decision in
Singh v. U.S. Postal Service , 2022 MSPB 15, we AFFIRM the initial decision.
The appellant alleged below and on review that the agency violated
5 U.S.C. § 2302(b)(10) by discriminating against him based on his July 2017
arrest. Petition for Review File, Tab 4 at 13; Initial Appeal File (IAF), Tab 14
at 8-9. He argued that this violated the prohibition against agency discrimination
for non-performance related conduct in section 2302(b)(10). The administrative
judge denied this claim because the appellant did not claim that he engaged in
whistleblowing activity. IAF, Tab 19, Initial Decision (ID) at 12. This was error
3
because the statute does not require such allegations. Nevertheless, because we
agree with the administrative judge’s finding of a nexus between the appellant’s
misconduct and the efficiency of the service, that determination negates his
section 2302(b)(10) claim. See Middleton v. Department of Justice , 23 M.S.P.R.
223, 228 (1984) (finding that a clear and specific finding of nexus negates a claim
under 5 U.S.C. § 2302(b)(10)), aff’d, 776 F.2d 1060 (Fed. Cir. 1985) (Table). To
the extent that the administrative judge erred in requiring the appellant to allege
retaliation for whistleblowing, an adjudicatory error such as this one that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984).
In addressing the appellant’s claim of disparate penalties, the
administrative judge cited Lewis v. Department of Veterans Affairs , 113 M.S.P.R.
657, ¶ 15 (2010), for the proposition that an appellant alleging disparate treatment
must show that there is enough similarity between both the nature of the
misconduct and other relevant factors to lead a reasonable person to conclude that
the agency treated similarly situated employees differently but that the Board will
not have hard and fast rules regarding the “outcome determinative” nature of
those factors. ID at 17-19. In the Board’s recent decision in Singh, 2022 MSPB
15, ¶ 14, the Board overruled Lewis to the extent it is contrary to Facer v.
Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988), in which the
U.S. Court of Appeals for the Federal Circuit held that the proper inquiry is
whether the agency knowingly treated employees “differently in a way not
justified by the facts, and intentionally for reasons other than the efficiency of the
service.” The Board also reaffirmed the standard set forth in Douglas, 5 M.S.P.R.
at 305, which limits similarly situated employees to those who engaged in the
same or similar offenses, Singh, 2022 MSPB 15, ¶ 17. Specifically, the Board
determined that the universe of potential comparators will vary from case to case,
but it should be limited to those employees whose misconduct and/or other
4
circumstances closely resemble those of the appellant. Id., ¶ 13. In addition, the
Board reiterated that consistency of the penalty with those imposed on other
employees for the same or similar offenses is only one of many factors to be
considered in determining an appropriate penalty and is not necessarily outcome
determinative. Id., ¶ 18. For the same reasons the administrative judge found the
appellant did not meet his burden under Lewis, ID at 18-19, we conclude he did
not meet his burden under the standard set forth in Singh.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after 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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Duenas_Nathan_S_SF-0752-18-0215-I-1_Final_Order.pdf | 2024-02-26 | NATHAN S. DUENAS v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0215-I-1, February 26, 2024 | SF-0752-18-0215-I-1 | NP |
2,253 | https://www.mspb.gov/decisions/nonprecedential/Rainsford_Edmund_J_SF-0752-16-0513-I-4_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDMUND J. RAINSFORD,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-16-0513-I-4
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
dmund J. Rainsford , Rancho Santa Margarita, California, pro se.
Asim Hemant Modi , Chicago, Illinois, for the agency.
Matthew C. Miller , 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 the agency’s removal action. On petition for review, the appellant
argues only that his due process rights have been compromised because the record
citations in the initial decision refer to tabs and pages but “[t]here is no
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
[Board]-generated [t]ab/page designation on either the electronic or printed
versions of the [Board] case file.” Generally, we grant petitions such as 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’s sole contention on review that the appeal files are not
tabbed or paginated is incorrect. During the proceedings below, the appeal was
dismissed without prejudice and refiled three times; thus, there are four docket
numbers associated with this appeal. See Rainsford v. Social Security
Administration, MSPB Docket Nos. SF-0752-16-0513-I-1, SF-0752-16-0513-I-2,
SF-0752-16-0513-I-3, and SF -0752-16-0513-I-4. As the administrative judge
explained in the initial decision, he cited to each appeal file by indicating “Initial
Appeal File (IAF)” and the applicable iteration number; for example,
IAF-1 corresponds to the appeal file in MSPB Docket No. SF-0752-16-0513-I-1,
and IAF-4 corresponds to the appeal file in MSPB Docket No.
SF-0752-16-0513-I-4. Rainsford v. Social Security Administration ,
MSPB Docket No. SF-0752-16-0513-I-4, Refiled Appeal File, Tab 22,
Initial Decision (ID) at 1 n.1. Some of the administrative judge’s citations also
specified the tab number within each appeal file and the page number within each2
tab. ID. Contrary to the appellant’s assertion that the appeal files are not tabbed,
each document within each appeal file has a tab number, as they do in all Board
appeals. Indeed, the electronic docket reports provided by the appellant on
review clearly reflect that each document has a corresponding tab number, which
is indicated in the first column under “Tab.” Petition for Review File, Tab 1
at 4-8. In addition, as explained by the administrative judge, each document in
the Board’s e-Appeal repository is paginated. ID at 1 n.1.
Although the appellant broadly claims on review that “[i]t is impossible to
decipher the location of any of the [a]dministrative judge’s citations, let alone
prepare a rebuttal” to the initial decision, he has not in fact identified a single
document that he was unable to locate or shown that his inability to locate such a
document was due to error by the administrative judge. Even if he had made such
a showing, he has not shown that such error implicated his due process rights or
affected the outcome of this appeal. See Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 542-48 (1985) (setting forth the due process rights to
which a tenured public employee being deprived of his property interest in
continued employment is entitled); Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although 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
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 court of appeals must 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Rainsford_Edmund_J_SF-0752-16-0513-I-4_Final_Order.pdf | 2024-02-23 | EDMUND J. RAINSFORD v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-16-0513-I-4, February 23, 2024 | SF-0752-16-0513-I-4 | NP |
2,254 | https://www.mspb.gov/decisions/nonprecedential/Lee_Danny_SF-0752-18-0753-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-18-0753-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny Lee , Poway, California, pro se.
Chantal Jenkins , Baltimore, Maryland, for the agency.
BEFORE
Cathy 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 resignation appeal for lack of jurisdiction. On petition
for review, the appellant challenges the administrative judge’s finding that his
resignation was not involuntary, indicates that he has new evidence in the form of
emails from agency officials supporting his assertion that he was subject 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
constant harassment, and reasserts his arguments that the agency’s charges in the
removal proposal are “false,” that he was not allowed to read the documents
supporting his proposed removal, that he was denied a union representative, that
he was denied requested reasonable accommodations, that he did not receive
information concerning his right to appeal the agency’s decision disqualifying
him from telework eligibility, and that his supervisor “perjured” himself.
Generally, we grant petitions such as 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 challenge to the administrative judge’s findings
concerning the voluntariness of the appellant’s resignation decision, we find no
reason to disturb the administrative judge’s findings on review. As the
administrative judge observed, an employee is not guaranteed a stress -free
working environment. Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 15,
aff’d, 469 F. App’x 852 (Fed. Cir. 2011) ; Miller v. Department of Defense ,
85 M.S.P.R. 310, ¶ 32 (2000); see Initial Appeal File (IAF), Tab 27, Initial
Decision (ID) at 16. Dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not
3
so intolerable as to compel a reasonable person to resign or retire. Brown,
115 M.S.P.R. 609, ¶ 15; Miller, 85 M.S.P.R. 310, ¶ 32. Based on the totality of
the circumstances, the administrative judge determined that the appellant failed to
make a nonfrivolous allegation that the agency deprived him of freedom of choice
or made his working conditions so difficult or unpleasant that a reasonable person
would have felt compelled to resign or retire. ID at 22-23.
On review, the appellant has merely restated his allegation that he felt
compelled to resign based on these disagreements. Petition for Review (PFR)
File, Tab 1 at 5-6. Aside from general workplace dissatisfaction and ongoing
disagreements with agency management, the appellant did not describe work
conditions that are sufficiently unpleasant or intolerable that they would compel a
reasonable employee to resign. Accordingly, we agree with the administrative
judge’s conclusion that such disagreements do not rise to the level of being so
intolerable as to compel a reasonable person to resign. ID at 22-23; see Brown,
115 M.S.P.R. 609, ¶ 15; Baldwin v. Department of Veterans Affairs , 109 M.S.P.R.
392, ¶¶ 19-20 (2008) (explaining that allegations of being assigned to onerous
tasks, being unjustifiably threatened with discipline, and being subjected to
unnecessary investigations did not suffice to make a nonfrivolous allegation of
jurisdiction over an involuntary resignation based on coercion); Miller,
85 M.S.P.R. 310, ¶ 32.
The appellant also takes issue with the allegations contained in the
agency’s proposed removal and challenges the merits of that determination. PFR
File, Tab 1 at 4-5, Tab 5 at 4-5. To the extent the appellant is suggesting that he
had no choice but to resign in the face of the notice of proposed removal, we find
no merit to that argument. See Garcia v. Department of Homeland Security ,
437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc); Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant failed to prove
that a reasonable person in his position would have felt compelled to resign where
he had the option to stand and fight the alleged discrimination, harassment, and
4
retaliation rather than resign). If the appellant believed that the proposed removal
was unjustified or unsupported by the evidence, he could have stayed and
challenged the proposal instead of resigning. See Baldwin, 109 M.S.P.R. 392,
¶ 12 (stating that an employee being faced with the unpleasant choice of either
resigning or opposing a potential adverse action does not rebut the presumed
voluntariness of her ultimate choice of resignation).
Alternatively, to the extent the appellant is arguing that the agency knew
that its threatened removal action could not be substantiated, the administrative
judge considered and rejected this theory. ID at 23-24. On review, the appellant
reasserts his argument that the agency’s charges are “false,” which could be
understood as a claim that the agency knew or should have known that the
proposed removal action could not be substantiated. PFR File, Tab 1 at 4-5,
Tab 2 at 5-6, Tab 5 at 4. As the administrative judge observed, an appellant may
show that a resignation was based on coercion when the resignation is induced by
a threat to take disciplinary action that the agency knows could not be
substantiated or when the agency takes steps against an employee, “not for any
legitimate agency purpose but simply to force the employee to quit.” Staats v.
U.S. Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996); see ID at 23-24.
However, the doctrine of coerced involuntariness is “a narrow one.” Staats,
99 F.3d at 1124. It does not apply if the employee resigns because he “does not
want to accept [measures] that the agency is authorized to adopt, even if those
measures make continuation in the job so unpleasant . . . that he feels that he has
no realistic option but to leave.” Id. Here, the appellant has not provided
sufficient evidence to make a nonfrivolous allegation that the agency knew that
its penalty could not be substantiated. The appellant’s blanket assertion that the
agency’s charges are “false,” and that he did not hang up the phone on a claimant
as the agency detailed in the proposal and as described in significant detail by an
agency supervisor, are insufficient to meet his high burden of showing that the
5
agency knew the action could not be substantiated. PFR File, Tab 1 at 4-5, Tab 2
at 5-6, Tab 5 at 4; see IAF, Tab 1 at 11-19, Tab 14 at 16-17.
The appellant also argues that he was denied a number of reasonable
accommodations. PFR File, Tab 1 at 5. To the extent he is suggesting that the
denial of reasonable accommodation constituted discrimination, as the
administrative judge correctly observed, at the jurisdictional stage, an allegation
of discrimination in the context of an involuntary adverse action appeal may only
be considered insofar as it relates to the issue of voluntariness. ID at 16, 20; see
Axsom, 110 M.S.P.R. 605, ¶ 12. Here, the administrative judge thoroughly
reviewed the appellant’s allegations and the record and concluded that, although
the agency did not grant the appellant all of his requested accommodations, a
number of them were granted, and the appellant’s allegations of
non-accommodation lacked specificity and were conclusory, generalized,
“self-contradicting and exaggerated,” and implausible on their face. ID at 18-20.
Although the agency did not grant all of the appellant’s requested
accommodations, it did grant a significant number of effective alternative
accommodations, including a standalone printer to reduce prolonged walking or
standing, flexible breaks and liberal leave, a hard surface chair mat, a private area
to lay in a recumbent position when necessary, an ergonomic mouse and
keyboard, and assistance in lifting files weighing more than 5 pounds. Id.
at 53-55. Nothing in the record indicates that the agency failed to follow any of
the appellant’s specific medical restrictions, and therefore, we agree with the
administrative judge’s conclusion that the appellant’s generalized allegations of
discrimination based on the fact that he was denied accommodations similarly do
not support his claim that his resignation was involuntary. ID at 17 n.8, 19-21;
cf. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶¶ 6-7 (2010)
(finding that the appellant nonfrivolously alleged that her resignation was
involuntary based on the agency’s denial of her request for a reasonable
accommodation (telecommuting) that, according to her doctor, would have
6
permitted her to continue to work full -time despite her medical condition); Swift
v. U.S. Postal Service , 61 M.S.P.R. 29, 32-33 (1994) (finding that an employee’s
contention that he was harassed at work, coupled with supporting medical
documentation that his depression and anxiety were aggravated by harassment he
was receiving from his supervisor, was sufficient to constitute a nonfrivolous
allegation of involuntariness regarding his resignation).
Regarding the appellant’s claim that he was denied a union representative
and the opportunity to review documents and contact witnesses at the meeting
where he received the proposed removal, the administrative judge acknowledged
this claim below in the context of assessing the voluntariness of the appellant’s
decision to resign, but ultimately concluded that the appellant had not met his
burden of making a nonfrivolous allegation that his resignation was coerced. See
ID at 12, 18-19. Additionally, as the agency observed, because the subject of the
meeting was merely to provide the appellant with the notice of proposed removal,
pursuant to the union agreement, it does not appear that the appellant was entitled
to union representation or a witness at the meeting. IAF, Tab 9 at 14-15, 20,
28-29; see National Labor Relations Board v. J. Weingarten, Inc. , 420 U.S. 251,
260 (1975) (concluding that private sector employees are entitled to union
representation at an investigatory interview that the employee reasonably believes
might result in disciplinary action); see also 5 U.S.C. § 7114(a)(2)(B) (providing
Federal employees Weingarten-type rights in the Civil Service Reform Act).
Regarding the appellant’s claim that he did not receive information concerning
his right to appeal the agency’s decision disqualifying him from telework
eligibility, the administrative judge also reviewed and rejected this allegation in
considering the voluntariness of the appellant’s resignation decision. See ID
at 4 n.3, 20. Further, although the appellant asserts that he was “not allowed to
read the termination papers,” he resigned from his position before the agency
issued a decision on the proposed removal, and he does not challenge the
7
agency’s assertion that he received a copy of the proposed removal as well as the
evidence the agency relied on in proposing his removal. See IAF, Tab 11 at 7-15.
Although the appellant takes issue with the administrative judge’s
characterization of his reassignment to the position of Senior Case Technician as
a “promotion” and argues that the new position had greater physical demands, the
record reflects that his previous position was a GS-6 Legal Assistant/Case
Technician position and he was reassigned to a GS-8 Legal Assistant/Senior Case
Technician position; so, despite his assertion otherwise, the position was a
promotion. PFR File, Tab 1 at 4-5; see IAF, Tab 16 at 10, 14. Additionally, even
assuming the promotion position had greater physical demands, as previously
noted, the agency granted the appellant numerous reasonable accommodations,
and nothing in the record indicates that the appellant was required to work outside
of his physical restrictions.
Regarding the appellant’s assertion that he received a favorable decision
from the California unemployment office based on “constructive discharge,” and
his suggestion that this demonstrates that his resignation was involuntary, we
conclude that this does not provide justification for disturbing the initial decision.
PFR File, Tab 5 at 4. The Board has held that decisions by state unemployment
tribunals are not binding on the Board, and the award of such benefits does not
mean that the administrative judge erred in concluding that the appellant’s
resignation was not involuntary. See Herring v. U.S. Postal Service , 40 M.S.P.R.
342, 346-47 (1989) (concluding that decisions by state unemployment tribunals
are not given collateral estoppel effect). With respect to the appellant’s claim
that his former supervisor and the agency representative included personally
identifiable information (PII) in the removal proposal and in the agency file, the
appellant also raised this issue below but did not offer any explanation for why it
was relevant, or for how it related to the voluntariness of his resignation or his
jurisdictional burden in this case. PFR File, Tab 2 at 4-8; see IAF, Tab 1 at 5;
ID at 11.
8
There is also no merit to the appellant’s claim that he was denied the
opportunity to conduct discovery. PFR File, Tab 1 at 4-5. Although the
acknowledgment order provided the appellant with basic discovery instructions
and directed him to the applicable regulations, the administrative judge issued an
order staying discovery regarding the merits of the appeal pending a decision on
the threshold jurisdictional issue in response to the agency’s motion to compel.
See IAF, Tab 2 at 6-7, Tab 21 at 1-2. Since the administrative judge ultimately
concluded that the appellant failed to meet his jurisdictional burden of proving
that his resignation was involuntary, he denied the request to lift the stay and
instead issued the initial decision dismissing the appeal for lack of jurisdiction.
See IAF, Tab 25. Because we agree with the administrative judge’s determination
that the appellant failed to demonstrate that his resignation was involuntary, we
agree that, absent a ruling on the threshold jurisdictional issue, he was not
entitled to conduct discovery, and so we conclude that the administrative judge
did not abuse his discretion in his discovery -related rulings. Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 15 (2013) (recognizing that 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). Further, regarding the appellant’s assertion that the “in lieu of
involuntary action” designation on his Standard Form (SF) 50 is making it
difficult for him to find another job, as the administrative judge noted and as the
record reflects, the appellant’s supervisor informed him at the time he stated that
he wanted to resign that his SF-50 would reflect the fact that his resignation was
in lieu of an involuntary action. PFR File, Tab 1 at 5; see IAF, Tab 10 at 12; ID
at 5, 27.
Additionally, in a supplemental filing to his petition for review, he appears
to suggest, for the first time, that the agency retaliated against him because of
protected whistleblowing activity, citing provisions from the Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat 16 (1989), and the Follow
9
the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017). PFR File, Tab 2 at 4-8.
Specifically, the appellant appears to suggest that the agency proposed his
removal in reprisal for his refusal to falsify records (i.e., that it required him to
change his time and attendance records to reflect absence without lave (AWOL)
for periods of time he alleges he was not AWOL), and because of his insistence
on following the agency’s record management policies. Id. at 5-8.
Although the Board may exercise jurisdiction over constructive agency
actions as personnel actions in individual right of action (IRA) appeals, 5 U.S.C.
§ 1221(a); Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12
(2014) (finding that an involuntary resignation is cognizable as a personnel action
in an IRA appeal) , such appeals first require exhaustion of administrative
remedies with the Office of Special Counsel (OSC), see Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446, ¶ 4 (2014) (stating that the first element to
Board jurisdiction over an IRA appeal is exhaustion by the appellant of his
administrative remedy before OSC). Nothing in the record indicates that the
appellant filed and exhausted his claims regarding these allegations, such that the
Board would have jurisdiction over these claims. Nevertheless, in an abundance
of caution, we have considered the appellant’s apparent whistleblower retaliation
claims to the extent they go to the ultimate question of coercion. See Coufal v.
Department of Justice , 98 M.S.P.R. 31, ¶ 24 (2004) (providing that, when an
appellant raises allegations of reprisal for whistleblowing activity in connection
with a constructive removal claim, evidence of reprisal goes to the ultimate
question of coercion). The administrative judge considered these claims and
determined that they were “self -contradicting and exaggerated” and “not plausible
on their face,” and the appellant has not offered any new evidence on review to
rebut these conclusions. ID at 20. Accordingly, we conclude that, to the extent
the appellant is alleging that he felt compelled to resign due to retaliation by
agency officials based on protected whistleblowing activity, we see no reason to
disturb the administrative judge’s findings and agree that the appellant has not
10
met his burden of making a nonfrivolous allegation of involuntariness. See Clay
v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987)
(same).
Regarding the appellant’s allegation that his former supervisor committed
“perjury,” based on the fact that statements he made related to the removal
proposal are contrary to statements contained in the appellant’s disability
retirement appeal, there is no support for the appellant’s claim. PFR File, Tab 1
at 5 (citing Lee v. Office of Personnel Management , MSPB Docket No. SF-844E-
18-0754-I-1, Initial Appeal File). As an initial matter, the two decisions are not
inconsistent. The other appeal concerns the appellant’s application for a Federal
Employees’ Retirement System (FERS) disability retirement and is directed at the
Office of Personnel Management (OPM), while the instant appeal concerns his
involuntary resignation claim and is directed at the SSA, his former employing
agency. The administrative judge in the other appeal affirmed OPM’s
reconsideration decision denying the appellant’s disability retirement application,
and nothing in that decision is inconsistent with the decision reached by the
administrative judge in the instant appeal. See Lee v. Office of Personnel
Management, MSPB Docket No. SF-844E-18-0754-I-1, Initial Decision at 1,
28-29 (July 30, 2019). The appellant has filed a petition for review in that case,
which will be addressed in a separate decision. Additionally, aside from
generally reasserting that the supervisor “perjured” himself, the appellant has not
provided any elaboration or identified which statements he believes constitute
perjury, and so we see no reason to disturb the initial decision on this basis . See
PFR File, Tab 1 at 5.
Finally, regarding the purportedly new evidence the appellant submits for
the first time with his petition for review, he has not shown that any of this
11
information is both new and material. PFR File, Tab 1 at 7-142; see Okello v.
Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (noting that
under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for
the first time with a petition for review absent a showing that it is both new and
material). The emails are all dated from April 2014, through the date of the
appellant’s resignation, July 27, 2018, which is prior to the September 24, 2018
close of record in this case. PFR File, Tab 1 at 7-142; see IAF, Tab 2 at 5.
Additionally, the appellant concedes that these emails were not previously
unavailable, noting that he was in possession of them before the record closed
below and that he provided them to his attorney, but his attorney did not file them
with the Board. PFR File, Tab 1 at 3. Thus, the evidence is not new. The Board
has held that it generally will not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). Furthermore, regarding the appellant’s claim that his
representative failed to submit the emails, an appellant is responsible for the
errors of his chosen representative. Pacilli v. Department of Veterans Affairs ,
113 M.S.P.R. 526, ¶ 13, aff’d, 404 F. App’x 466 (Fed. Cir. 2010); Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981).
The appellant also has not explained how these emails are “material.”
Okello, 112 M.S.P.R. 563, ¶ 10. On review, the appellant generally argues that
the emails show that he was subjected to repeated harassment by his former
supervisor. PFR File, Tab 1 at 4-6. Specifically, the appellant argues that he
reported his former supervisor to the agency’s harassment officers, but the
officers did nothing about his allegations, and he provides copies of email
exchanges with harassment officers. PFR File, Tab 1 at 4-5, 9-12, 39-54, 114-42.
The administrative judge considered, and rejected, this argument below, and the
appellant does not offer specific argument as to why the emails are material or
why they show that he has met his jurisdictional burden of demonstrating that his
12
resignation was involuntary. See ID at 17-18. The appellant also argues that the
emails demonstrate that he did not engage in the misconduct alleged in the
removal proposal. PFR File, Tab 1 at 4-6. The administrative judge similarly
considered, and rejected, this argument in the context of addressing whether the
agency threatened a removal action that it knew could not be substantiated, but
determined that the appellant failed to make a nonfrivolous allegation that the
agency knew the removal could not be substantiated or that it had no reasonable
basis for taking the action, noting that the appellant provided nothing more than
generalized arguments rebutting the allegations contained in the proposed
removal. See ID at 23-24. The appellant merely restates these arguments on
review, and none of the emails the appellant has provided serve to undercut the
administrative judge’s finding in this regard. Thus, the emails are not material.
Accordingly, we have not considered them.2
2 After the record closed on petition for review, the appellant filed a motion for leave to
submit additional evidence regarding his mid-year performance review and response,
and “harassment reports” purportedly in the agency’s possession. PFR File, Tab 7 at 3.
The reports appear to relate to the appellant’s general allegations of harassment by his
first-line supervisor during his employment and his objections to how those complaints
were handled during the agency’s internal harassment investigation process. See PFR
Fie, Tab 1 at 5, 39-54, 114-42. Although the appellant vaguely suggests that the reports
evidence “corruption” by his former agency, he has not specifically explained how the
reports are material or would provide evidence relevant to the involuntariness of his
resignation decision. See Okello, 112 M.S.P.R. 563, ¶ 10.
Regarding the appellant’s mid-year performance review and his response to it, although
he does not further elaborate in his new pleading, he referenced these documents in his
petition for review, indicating that his negative mid-year review would support his
claim that he had no choice but to leave his former position. PFR File, Tab 1 at 5. The
administrative judge considered this argument in the context of assessing the
voluntariness of the appellant’s resignation decision, but nevertheless concluded that
the agency’s actions did not rise to the level such that a reasonable person would have
felt compelled to resign or retire—a conclusion with which we ultimately agree. See ID
at 10, 23; supra pages 6-7. The appellant has not further explained what he expects the
mid-year review and responses to show or how the documents otherwise relate to the
involuntariness of his resignation decision. See Okello, 112 M.S.P.R. 563, ¶ 10.
Consequently, the motion is denied.
13
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.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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.
17
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. | Lee_Danny_SF-0752-18-0753-I-1_Final_Order.pdf | 2024-02-23 | DANNY LEE v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-18-0753-I-1, February 23, 2024 | SF-0752-18-0753-I-1 | NP |
2,255 | https://www.mspb.gov/decisions/nonprecedential/Bryson_Leslie_A_PH-0714-19-0336-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LESLIE ADAM BRYSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0714-19-0336-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leslie Adam Bryson , Philadelphia, Pennsylvania, pro se.
Christine Beam , Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has petitioned 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 parties submitted a copy of a
settlement agreement, signed and dated by the appellant on July 27, 2023, and by
the agency on January 12, 2024. Petition for Review (PFR) File, Tab 6 at 4-6.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 document provides, among other things, for the withdrawal of the appeal in
exchange for the promises made by the agency. Id. at 4.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement 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. PFR File, Tab 6 at 4. 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.
¶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 RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bryson_Leslie_A_PH-0714-19-0336-I-1__Final_Order.pdf | 2024-02-23 | LESLIE ADAM BRYSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-19-0336-I-1, February 23, 2024 | PH-0714-19-0336-I-1 | NP |
2,256 | https://www.mspb.gov/decisions/nonprecedential/Bland_Jessica_DC-1221-18-0246-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSICA BLAND,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-18-0246-W-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Monique Smart , Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action appeal.
On petition for review, the appellant argues that the administrative judge erred by
finding that she failed to prove that any of her disclosures were protected.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Bland_Jessica_DC-1221-18-0246-W-1_Final_Order.pdf | 2024-02-23 | JESSICA BLAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-18-0246-W-1, February 23, 2024 | DC-1221-18-0246-W-1 | NP |
2,257 | https://www.mspb.gov/decisions/nonprecedential/Polk_William_K_CH-0752-17-0539-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM K. POLK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-17-0539-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
W
illiam K. Polk , Louisville, Kentucky, pro se.
Lois F. Prince , Nashville, Tennessee, for the agency.
Patrick J. Neil , Esquire, Tampa, 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
sustained the agency’s removal action pursuant to 5 U.S.C. chapter 75. On
petition for review, the appellant argues that he was inadequately represented,
that the administrative judge made erroneous findings of fact, and 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).
2
behaved unfairly throughout the pendency of his appeal. Petition for Review
(PFR) File, Tab 1 at 2-4, Tab 6 at 2-4. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board has routinely held that appellants are responsible for the actions
and inactions of their chosen representatives. See, e.g., Sparks v. U.S. Postal
Service, 32 M.S.P.R. 422, 425 (1987). Here, there is nothing in the record to
suggest that the appellant did not select his own non-attorney representative. The
appellant’s claims as to his inability to afford legal counsel do not alter this
analysis. PFR File, Tab 6 at 2; see Embry v. Department of Transportation ,
13 M.S.P.R. 505, 507 (1982). As such, we find the appellant’s claims of
inadequate representation unavailing.2
2 On review, the appellant provided additional documentary evidence. PFR File, Tab 1
at 5-52. The appellant indicates that he had all of these documents prior to the close of
the record, but his representative failed to file them on his behalf. PFR File, Tab 1 at 2,
Tab 6 at 2. However, the appellant is ultimately responsible for all Board filings. See
Depierro v. U.S. Postal Service , 54 M.S.P.R. 251, 254 (1992). Accordingly, the
appellant has not shown that these additional documents were unavailable prior to close
of the record. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d).
3
The appellant also suggests that the administrative judge made erroneous
findings of fact because she relied on hearsay evidence and because she found the
agency’s allegations as to his conduct substantiated, even though he was never
criminally charged for the conduct. PFR File, Tab 1 at 2, Tab 6 at 3. We find no
error with the administrative judge’s findings of fact. The Board has consistently
followed the well-settled principle that hearsay evidence is admissible in
administrative proceedings. Jackson v. Department of the Army , 10 M.S.P.R. 90,
93 (1982) (citing Borninkhof v. Department of Justice , 5 M.S.P.R. 77 (1981)).
Further, the administrative judge applied the appropriate burden of proof for
Board proceedings, and she properly considered the nexus between the articulated
grounds for the adverse action and a legitimate Government interest. Initial
Appeal File, Tab 37, Initial Decision at 7-8, 14-15; see Bahrke v. U.S. Postal
Service, 98 M.S.P.R. 513, ¶ 22 (2005).
The appellant also contends on review that the agency “allowed witnesses
to falsify evidence against [him],” and he alleges generally that the agency both
excluded and destroyed evidence. PFR File, Tab 1 at 2-3. We find that the
appellant’s broad allegations of untrue statements and unscrupulous behavior do
not warrant disruption of the administrative judge’s findings. See Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (finding
no reason to disrupt the administrative judge’s conclusions because the initial
decision indicated that she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); see also
Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005)
(explaining that a failure to file a motion to compel precluded the appellant from
raising related discovery disputes on review), aff’d, 167 F. App’x 217 (Fed. Cir.
2006).
4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Polk_William_K_CH-0752-17-0539-I-1_Final_Order.pdf | 2024-02-23 | WILLIAM K. POLK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-17-0539-I-1, February 23, 2024 | CH-0752-17-0539-I-1 | NP |
2,258 | https://www.mspb.gov/decisions/nonprecedential/Hunt-Hawes_Rikkianisha_S_AT-1221-19-0013-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RIKKIANISHA SANDRIKARENE
HUNT-HAWES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-19-0013-W-1
DATE: February 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
C
hristopher Hugh Bonk , Esquire, and Kevin L. Owen , Esquire, Silver
Spring, Maryland, for the appellant.
W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision , and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is timely filed.
¶2A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
initial decision was issued on December 7, 2018, and it was sent via postal
delivery to the address listed in the appellant’s initial appeal. Initial Appeal File
(IAF), Tab 1 at 2, Tab 7, Initial Decision (ID) at 1, Tab 8 at 1. After filing the
initial appeal, however, the appellant moved to a different address. Petition for
Review (PFR) File, Tab 1 at 4-5. Although the appellant had elected to e-file, she
did not receive electronic service of the initial decision. IAF, Tab 1 at 2, Tab 8 at
1. The appellant attests that she received the initial decision on January 22, 2019,
when it was forwarded to her new address. PFR File, Tab 1 at 16, Tab 3 at 2-4.
Because the initial decision was received more than 5 days after it was issued, the
30-day requirement in 5 C.F.R. § 1201.114(e) applies. Her February 22, 2019
petition for review was filed within 30 days of receipt of the initial decision, in
compliance with section 1201.114(e).
¶3We have considered whether the appellant should be deemed to have
constructively received the initial decision at an earlier date because she did not
inform the Board of her address change. See 5 C.F.R. § 1201.26(a)(2) (stating
that parties are obligated to notify the Board of address changes). The Board’s
regulation at 5 C.F.R. § 1201.22(b)(3) explains that correspondence properly
addressed and sent to the appellant’s address via postal delivery is presumed to
have been duly delivered to the addressee. See Little v. U.S. Postal Service ,
124 M.S.P.R. 183, ¶¶ 7-8 (2017); see also 5 C.F.R. § 1201.114(e)(3) (explaining2
that the date the appellant receives the initial decision is determined according to
section 1201.22(b)(3)). The presumption of constructive receipt may be
overcome under the circumstances of a particular case. See 5 U.S.C.
§ 1201.22(b)(3). Under the circumstances of this case, we find that application of
the constructive receipt doctrine is inappropriate. The appellant registered as an
e-filer, IAF, Tab 1 at 2, and the Board’s regulations at the time provided that,
“[w]hen MSPB documents are issued, e-mail messages will be sent to e-filers that
notify them of the issuance and that contain links to the Repository where the
documents can be viewed and downloaded,” 5 C.F.R. § 1201.14(j)(1) (2019).
The regulation further stated that “[p]aper copies of these documents will not
ordinarily be served on e-filers.” Id. Thus, the appellant may justifiably have
presumed that she would be receiving the documents electronically, as she had
requested, and a reasonable person may not have viewed updating her mailing
address as a priority. Accordingly, we find that constructive receipt should not
apply and the appellant’s petition for review is timely. See Buniff v. Department
of Agriculture, 79 M.S.P.R. 118, ¶ 5 (1998) (calculating the deadline for a
petition for review from the date the appellant received the initial decision when
the regional office sent the initial decision to an old address rather than the
appellant’s updated address of record); see also Blatt v. Department of the Army ,
121 M.S.P.R. 473, ¶ 5 (2014) (finding that an appellant established good cause
for an untimely petition for review when the Board served the initial decision to
an outdated email account despite the fact that the administrative judge had
previously granted the appellant’s motion to convert to service by regular mail).
The Board has jurisdiction over the appellant’s IRA appeal, and we remand for a
hearing on the merits.
¶4Having found that the appellant’s petition for review is timely, we now turn
to the administrative judge’s finding that the appellant failed to establish
jurisdiction over her IRA appeal. ID at 2-5. The Board has jurisdiction over an
IRA appeal if the appellant exhausts her administrative remedies before the3
Office of Special Counsel (OSC) and makes nonfrivolous allegations that (1) she
made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). McCray v. Department of the Army , 2023 MSPB 10, ¶ 11. Once
an appellant has established jurisdiction over her appeal, she is entitled to a
hearing on the merits, in which she will have the opportunity to prove her claim
by preponderant evidence. Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016).
¶5A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in her position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6.
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. Id., ¶ 13. Under the knowledge/timing test, an appellant may
nonfrivolously allege that the disclosure or activity was a contributing factor
through circumstantial evidence, such as evidence that the official who took the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure or activity was a contributing factor in the personnel action.
See 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13. In addition to the
knowledge/timing test, there are other possible ways for an appellant to satisfy
the contributing factor criterion. See Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶¶ 14-15 (2012) (explaining that other evidence relevant to the
contributing factor criterion includes the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was4
personally directed at the proposing or deciding officials, and whether those
officials had a desire or motive to retaliate).
¶6In the initial decision, the administrative judge found that the appellant
exhausted her administrative remedies before OSC. ID at 2. She found that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure under 5 U.S.C. § 2302(b)(8). ID at 2-5. She did not discuss whether
the appellant nonfrivolous alleged that she engaged in protected activity under
section 2302(b)(9). Id. Because she found that the appellant failed to
nonfrivolously allege that she made a protected disclosure, she did not reach
contributing factor.
¶7We agree with the administrative judge’s finding that the appellant
exhausted her remedies before OSC, ID at 2, and the parties have not challenged
this finding on review. As set forth below, we disagree with the administrative
judge’s remaining findings.
The appellant nonfrivolously alleged that she made protected disclosures and
engaged in protected activity under 5 U.S.C. § 2302(b)(8), (9).
¶8Before the administrative judge, the appellant submitted a copy of her OSC
complaint and correspondence with OSC. IAF, Tab 2. On review, she has
clarified the alleged whistleblowing raised before OSC as follows: (1) on an
unspecified date, she reported to the Office of Inspector General (OIG), via
hotline and during an in-person visit, that an agency employee sexually abused a
patient; (2) on or around November 5, 2017, she reported to an agency employee
that the agency’s infection control procedures were deficient, including her
observations of unsanitary conditions, hospital-acquired patient infection and
death, the sale of expired food and medications to patients, and roach
infestations; (3) in or around November 2017, she reported to “disruptive
behavior, bullying, intimidation, and allegations of a hostile work environment”
to “a variety of [a]gency personnel”; (4) on an unspecified date, the appellant
reported to the OIG and OSC, among others, that a supervisor sexually harassed5
her; (5) in or around January 2018, she reported to agency privacy officers that
agency staff improperly accessed her medical records; and (6) on or around
August 2018, the appellant reported to the OIG criminal activity by agency
employees, including stolen equipment and use of Government resources for
personal gain. PFR File, Tab 1 at 6-10 (citing IAF, Tab 2 at 12-34).
¶9We find that allegations 1, 4, and 6,2 concerning reports made to the OIG
and OSC, constitute nonfrivolous allegations of protected activity under 5 U.S.C.
§ 2302(b)(9)(C).3 IAF, Tab 2 at 16, 28-29; PFR File, Tab 1 at 7-8; see Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8 (finding that, under the broadly
worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to
the OIG or OSC is protected, regardless of its content, as long as such disclosure
is made in accordance with applicable provisions of law).
¶10As to allegation 2, we find that the appellant has nonfrivolously alleged that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8)(A)(ii) when she
reported to an agency employee that the infection control procedures at the
medical center were deficient, including her observations of unsanitary
conditions, hospital-acquired patient infection and death, the sale of expired food
and medications to patients, and roach infestations. IAF, Tab 2 at 18, 23-24, 55;
PFR File, Tab 1 at 7. The appellant has alleged that some of her concerns were
2 Concerning allegations 1 and 4, the appellant has not identified the date that she made
her purported disclosures to the OIG and OSC. IAF, Tab 2 at 16-17; PFR File, Tab 1
at 7. She appears to allege that she made disclosures to the OIG from November 2017
through 2018. IAF, Tab 2 at 16, 59. Effective December 12, 2017, 5 U.S.C. § 2302(b)
(9)(C) was amended pursuant to the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017), to expand whistleblower protection
for disclosures made to “any [ ] component responsible for internal investigation or
review.” The amendment does not affect our analysis because the appellant has alleged
that she made disclosures to the OIG and OSC, which would be protected under either
version of the law, regardless of the date of the disclosures.
3 On review, the appellant argues that allegation 4 is protected under 5 U.S.C. § 2302(b)
(8). PFR File, Tab 1 at 10-11. We disagree. See Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 10-20 (concluding that disclosures about discrimination prohibited by
Title VII are excluded from protection under 5 U.S.C. § 2302(b)(8)), aff’d, No. 22-1967
(Fed. Cir. July 7, 2023).6
substantiated in a June 2018 OIG report and that an agency study concluded that a
veteran admitted to the facility where the appellant worked had a 40% increased
chance of dying as compared to another Veterans Affairs medical center. IAF,
Tab 2 at 18. A disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant, in her role as Infection
Control Nurse, could find that such conditions in a hospital setting constitutes a
substantial and specific danger to public health or safety. See Miller v.
Department of Homeland Security , 111 M.S.P.R. 312, ¶¶ 5-6 (2009) (holding that
a disclosure regarding danger to the public must be both substantial and specific
to be protected and, normally, disclosure of an imminent event is protected).
¶11As to allegation 3, the appellant alleges that she reported disruptive
behavior and “bullying, intimidation, hostile work environment, and
whistleblower retaliation” to various agency personnel. IAF, Tab 2 at 53-54. The
appellant has not provided any further context to this allegation either before the
administrative judge or on review. Id.; PFR File, Tab 1 at 9. We find that this
vague and nonspecific allegation is insufficient to constitute a nonfrivolous
allegation of a protected disclosure. See Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶¶ 6-7 (explaining that disclosures must be specific and detailed,
not vague allegations of wrongdoing).
¶12Turning to allegation 5, the appellant alleges that she disclosed to
agency privacy officers that agency staff mishandled her medical records.
IAF, Tab 2 at 27; PFR File, Tab 1 at 8. Specifically, she alleges that she “noticed
that staff had accessed my medical records when they had no involvement in my
care” and the “access did not coincide with appointments [ ] or care visits.”
IAF, Tab 2 at 27. Federal laws such as the Health Insurance Portability and
Accountability Act ensure that patient health information is properly protected by
medical facilities. There is no evidence that the appellant is an expert in the
nuances of privacy law. We find that, under these circumstances and given the
information ascertainable by the appellant, a reasonable person could believe that7
agency staff violated a law, rule, or regulation by improperly accessing medical
records. We therefore find that she has nonfrivolously alleged that she made a
protected disclosure pursuant to 5 U.S.C. § 2302(b)(8)(A)(i).
The appellant has nonfrivolously alleged that her protected disclosures or activity
were contributing factors in the alleged personnel actions.
¶13The appellant alleges that, because of her protected whistleblowing, the
agency subjected her to a disciplinary written counseling, denial of a promotion
and training, an involuntary transfer, and termination during her probationary
period. IAF, Tab 2 at 15-45; PFR File, Tab 1 at 12. We find that she had made a
nonfrivolous allegation that she was subjected to personnel actions covered by
5 U.S.C. § 2302(a)(2)(A). See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 14; see also Campo v. Department of the Army , 93 M.S.P.R. 1,
¶¶ 7-8 (2002) (holding that a counseling memorandum can constitute a personnel
action if it warns of future discipline).
¶14As to contributing factor, the appellant asserts that she meets the
knowledge/timing test. PFR File, Tab 1 at 12-13. She has asserted that the
Medical Director, D.D., and agency employee, M.H., were aware of her protected
disclosures and OIG activity pursuant to their roles in responding to the
appellant’s OIG complaints. IAF, Tab 2 at 16-17. She has alleged that D.D. and
M.H. were involved in the written counseling, denial of promotion and training,
and involuntary transfer. Id. at 20-21. The record evidence reflects that the
Medical Director, D.D., was involved in the decision to terminate the appellant’s
employment. Id. at 71-72. As to the timing prong, it appears that the appellant
began engaging in protected whistleblowing in or around November 2017 and was
subjected to various alleged personnel actions thereafter, culminating in her
September 2018 removal. Id. at 64, 71-72. The Board has found that personnel
actions taken within approximately 1 to 2 years of the appellant’s disclosures
satisfy the knowledge/timing test. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015). We therefore find that the appellant has8
nonfrivolously alleged under the knowledge/timing test that her protected
whistleblowing was a contributing factor to the personnel actions and that she has
established jurisdiction over her IRA appeal.
ORDER
¶15For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall adjudicate this appeal on the merits, including holding
the hearing requested by the appellant. She shall address the appellant’s claim
that her whistleblowing allegations numbered 1, 2, 4, 5, and 6, above, were a
contributing factor in the various personnel actions listed herein.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Hunt-Hawes_Rikkianisha_S_AT-1221-19-0013-W-1_Remand_Order.pdf | 2024-02-23 | null | AT-1221-19-0013-W-1 | NP |
2,259 | https://www.mspb.gov/decisions/nonprecedential/Roman_Eric_DC-0752-18-0215-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC ROMAN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-18-0215-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Macomber , Esquire, Albany, New York, for the appellant.
Scott Rocio , Esquire, Washington, D.C., for the appellant.
Crista Kraics , Quantico, 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
sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in finding that his testimony was less credible than the
testimony of two agency witnesses. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Roman_Eric_DC-0752-18-0215-I-1_Final_Order.pdf | 2024-02-23 | ERIC ROMAN v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-18-0215-I-1, February 23, 2024 | DC-0752-18-0215-I-1 | NP |
2,260 | https://www.mspb.gov/decisions/nonprecedential/Kraft-Davis_Wesley_PH-3330-18-0345-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESLEY KRAFT-DAVIS,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
PH-3330-18-0345-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wesley Kraft-Davis , Biddeford, Maine, pro se.
Pegah Yazdy Gorman , 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 his request for corrective action under the Veterans Employment
Opportunities Act of 1998. On petition for review, the appellant argues that his
applications for Park Ranger positions should have received “first consideration,”
he was entitled to an interview, and the agency failed to prove that it hired no one
for the positions. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Kraft-Davis_Wesley_PH-3330-18-0345-I-1_Final_Order.pdf | 2024-02-23 | null | PH-3330-18-0345-I-1 | NP |
2,261 | https://www.mspb.gov/decisions/nonprecedential/Malott_James_D_SF-0752-17-0589-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES MALOTT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-17-0589-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Blaine Markuson , Esquire, Fort McCoy, 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
dismissed his involuntary retirement appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the administrative judge
made erroneous findings of fact and that the Board has jurisdiction over this
appeal. Petition for Review File, Tab 1. Of particular note, he alleges that the
administrative judge erred in finding that, prior to his retirement, he had
discussed his retirement plans multiple times with both his supervisor and a
physician. Id. at 11. The appellant asserts that, although he had considered
leaving his position because of race discrimination in the work environment, he
could not afford to retire and thus did not intend to do so. Id. at 11-12. To the
extent that the administrative judge erred in finding that the appellant discussed
his retirement plans multiple times with both his supervisor and a physician, we
find that any error does not provide a sufficient basis to find that the
administrative judge erred in his conclusion that the appellant failed to prove that
his decision to retire resulted from agency misinformation or coercion. Initial
Appeal File, Tab 36, Initial Decision at 6-13; see Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). Accordingly, we deny the petition for review and affirm the
initial decision.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).
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 | Malott_James_D_SF-0752-17-0589-I-1_Final_Order.pdf | 2024-02-23 | JAMES MALOTT v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-17-0589-I-1, February 23, 2024 | SF-0752-17-0589-I-1 | NP |
2,262 | https://www.mspb.gov/decisions/nonprecedential/Conklin_Robert_AT-1221-16-0700-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT CONKLIN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-16-0700-W-1
DATE: February 23, 2024
THIS ORDER IS NONPRECEDENTIAL1
A
dam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Nic Roberts , Esquire, Fort Benning, Georgia, 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).
BACKGROUND
After the appellant was not selected for a Combat Development Specialist
position with the agency in 2015,2 he filed the instant IRA appeal alleging that he
was not selected because of his prior complaints to the Department of Labor
(DOL) in 2010 and to the Office of Special Counsel (OSC) in 2012. Initial
Appeal File (IAF), Tab 1 at 6, Tab 4 at 17. After affording the appellant notice of
his burdens and elements of proof and affording him the opportunity to submit
evidence and argument establishing jurisdiction, IAF, Tab 3, the administrative
judge dismissed the appeal for lack of jurisdiction, IAF, Tab 8, Initial Decision
(ID).
In the initial decision dismissing the appeal, the administrative judge found
that the appellant failed to nonfrivolously allege that his 2010 DOL complaint
sought to remedy whistleblower reprisal and that he, therefore, failed to allege
that such activity was protected. ID at 6-7. Without making a specific finding on
whether the appellant nonfrivolously alleged that his 2012 OSC complaint
constituted protected activity, the administrative judge ultimately concluded that
the appellant failed to nonfrivolously allege that either the 2010 DOL complaint
or the 2012 OSC complaint was a contributing factor in the agency’s decision to
not select him for the Combat Development Specialist position in 2015. ID
at 7-9.
The appellant has filed a petition for review, wherein he argues that he
nonfrivolously alleged Board jurisdiction and that the administrative judge
inappropriately weighed the evidence of record in dismissing his appeal. Petition
for Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s
petition, to which the appellant has replied. PFR File, Tabs 3-4.
2 It does not appear that the appellant was an employee of the Federal Government when
he applied for the Combat Development Specialist position; rather, the record suggests
he was a contractor at the time. Initial Appeal File, Tab 1 at 9, Tab 4 at 5.2
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a disclosure that was protected under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
or (D), and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Bishop v. Department of Agriculture , 2022 MSPB 28, ¶ 13;
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).3
The administrative judge correctly found that the appellant exhausted his
administrative remedy with OSC regarding his 2010 DOL and 2012 OSC
complaints.
In the initial decision, the administrative judge found that the appellant
exhausted his administrative remedy before OSC regarding his allegation that the
agency did not select him for the Combat Development Specialist position in
2015 in reprisal for, among other things, previous complaints he filed with the
DOL and OSC.4 ID at 5. We have reviewed the record, which includes a copy of
the appellant’s December 9, 2015 OSC complaint, wherein he asserted that the
agency did not select him for the Combat Development Specialist position in
3 Effective December 27, 2012, Congress enacted the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. In Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 51, the Board reasoned that even
if an appellant’s whistleblowing activity occurs prior to the enactment of the WPEA,
the WPEA still applies if the relevant retaliatory event occurs after the enactment date
because the agency then knew of the parties’ rights, liabilities, and duties under the
WPEA. Accordingly, we find that the WPEA applies here even though the appellant’s
alleged protected activity occurred before the enactment of the WPEA because the
alleged personnel action at issue—the nonselection—occurred in 2015, after the
effective date of the WPEA, and is, therefore, the “relevant event” in determining what
statutory scheme applies. See id.
4 The administrative judge found, however, that the appellant failed to show that he
exhausted his OSC remedy with respect to his claims that the agency violated 5 U.S.C.
§ 2302(b)(4). ID at 5. The appellant does not challenge this finding on review, and we
find no reason to disturb it. 3
2015 because of his prior complaints before the DOL and OSC, and because of
his cooperation with an OSC investigation. IAF, Tab 1 at 13-14, 16. As such, we
agree with the administrative judge that the appellant exhausted his
administrative remedy with OSC with respect to his 2010 DOL and 2012 OSC
complaints. ID at 5.
We find that the appellant nonfrivolously alleged that his 2012 OSC complaint
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C).
The next step in the appellant’s jurisdictional burden is to make a
nonfrivolous allegation that he made a disclosure that was protected under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). See Bishop, 2022 MSPB 28, ¶ 13; Salerno,
123 M.S.P.R. 230, ¶ 5. Here, the appellant’s IRA appeal concerns activities—his
2010 filing of a DOL complaint and his June 15, 2012 filing of an OSC complaint
—that he asserts are protected under section 2302(b)(9).5 IAF, Tab 4.
Regarding the appellant’s 2012 OSC complaint, as briefly noted above, the
administrative judge does not appear to have made a specific finding on whether
the appellant nonfrivolously alleged that his 2012 OSC complaint constituted
5 In the initial decision, the administrative judge found that the appellant failed to
nonfrivolously allege that his DOL complaint sought to remedy whistleblower reprisal,
as required by the WPEA. ID at 6. As such, he concluded that the Board lacked
jurisdiction to consider it. ID at 6-7. The appellant does not appear to challenge this
finding on review. PFR File, Tab 1. We have reviewed the record, and we agree with
the administrative judge’s analysis. Under the WPEA, the Board has jurisdiction to
hear appeals of violations of 5 U.S.C. § 2302(b)(9)(A)(i), i.e., allegations of reprisal for
exercising a right to complain, when the substance of that complaint seeks redress for a
violation of 5 U.S.C. § 2302(b)(8). Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013). As correctly noted by the administrative judge, the
appellant alleged below that the subject matter of his complaint before the DOL was
whether his veterans’ preference rights were violated in the hiring process in
contravention of the Veterans Employment Opportunities Act of 1998. ID at 7; IAF,
Tab 4 at 17. He reiterated this position in his petition for review. PFR File, Tab 1 at 5.
Because the appellant has not made a nonfrivolous allegation that his 2010 DOL
complaint concerned remedying an alleged violation of subparagraph (b)(8), the Board
lacks jurisdiction over his allegations of reprisal in the context of this IRA appeal.
Mudd, 120 M.S.P.R. 365, ¶ 7.4
protected activity under 5 U.S.C. § 2302(b)(9). ID at 7-8. As such, we do so
here. Under section 2302(b)(9)(C), an agency may not “take or fail to take . . .
any personnel action against any employee or applicant for employment because
of . . . [his] cooperating with or disclosing information to . . . the Special
Counsel, in accordance with applicable provisions of law.”6 Under this broadly
worded language, the activity of filing an OSC complaint would be protected
under section 2302(b)(9)(C) regardless of the complaint’s content. See Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 62 (stating that disclosing
information to, among others, OSC is protected activity under section 2302(b)(9)
(C) irrespective of whether an individual had a reasonable belief that she was
disclosing wrongdoing and regardless of the complaint’s contents). Accordingly,
we find that the appellant nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) when he filed his 2012 OSC complaint.
See id.
The appellant nonfrivolously alleged that his 2012 OSC complaint was a
contributing factor to his 2015 nonselection.
The appellant must next nonfrivolously allege that his 2012 OSC complaint
was a contributing factor in the agency’s decision not to select him for the
Combat Development Specialist position in 2015. See Bishop, 2022 MSPB 28,
¶ 13; Salerno, 123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion
at the jurisdictional stage of an IRA appeal, the appellant only need 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.
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 19. One way to
6 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. In particular, it amended 5 U.S.C. § 2302(b)(9)(C) to provide that, in
addition to the Special Counsel, a disclosure to “any other component responsible for
internal investigation or review” is also protected. 131 Stat. 1283, 1618. However, the
result here would be the same under both pre- and post-NDAA law because the
appellant disclosed information to OSC.5
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 reasonable person
could conclude that the disclosure was a contributing factor in the personnel
action. Id.
Below, the appellant alleged that the then-Soldier Systems Branch Deputy
Director (Deputy Director) was “likely” the selecting official for the 2015
position and that the Deputy Director had “likely surmised” from OSC’s
investigation into his 2012 complaint, which concerned another nonselection in
which the appellant alleges he was involved, that the appellant was the person
who had filed the complaint. IAF, Tab 4 at 9. In essence, the appellant alleged
below that the agency official he believed to be responsible for the nonselection
in 2015 was likely aware of his 2012 OSC complaint. Id.
In the initial decision, the administrative judge found that the appellant
failed to raise nonfrivolous allegations sufficient to show that the appellant’s
OSC complaint was a contributing factor in the agency’s decision not to select
him for the Combat Development Specialist position. ID at 9. In so finding, he
reasoned that the “appellant himself indicated uncertainty as to whether the
[Deputy Director] . . . was the selecting official for that position.” Id.
Additionally, he relied on a sworn statement submitted by the agency from the
Capability Manager that he was the selecting official for the Combat
Development Specialist position in 2015, and not the Deputy Director. Id.; IAF,
Tab 6 at 6. The administrative judge then stated that the appellant had produced
no evidence that the Capability Manager had knowledge of his previous
complaints. ID at 9. He ultimately concluded that the appellant “failed to
otherwise set forth facts sufficient to constitute a nonfrivolous allegation” that his6
previous complaints contributed to the agency’s decision not to select him for the
position. ID at 9-10.
On review, the appellant argues that, at the jurisdictional stage, he was not
required to do any more than to make a nonfrivolous allegation that he was not
selected for the position in reprisal for filing a prior OSC complaint and that the
administrative judge erred in relying on agency evidence in “refusing to find that
[he] established a nonfrivolous allegation.” PFR File, Tab 1 at 11. We agree.
The Board has consistently held that, although an administrative judge may
consider the agency’s documentary submissions in determining whether the
appellant has made a nonfrivolous allegation of jurisdiction, he may not weigh
evidence and resolve conflicting assertions of the parties, and the agency’s
evidence may not be dispositive. See Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446, ¶ 11 (2014); see also Weed v. Social Security Administration ,
113 M.S.P.R. 221, ¶ 19 (2010). Moreover, in the time that followed the initial
decision, our reviewing court explained that “the question of whether the
appellant has nonfrivolously alleged protected disclosures that contributed to a
personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” See Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1367,
1369 (Fed. Cir. 2020). Here, the administrative judge considered evidence
outside of the appellant’s allegations, specifically, the sworn statement from the
Capability Manager that he was the agency official responsible for the 2015
selection, and that evidence, which the administrative judge appears to have
treated as dispositive, served only to contradict the appellant’s assertion that he
believed the Deputy Director was responsible for his nonselection. ID at 9; IAF,
Tab 6 at 6. Based on established precedent, we find that it was error to consider
the agency’s evidence below at the jurisdictional stage. See Hessami, 979 F.3d
at 1367, 1369; see also Carney, 121 M.S.P.R. 446, ¶ 11. 7
As such, we must now determine whether the appellant’s allegations,
accepted as true, constitute a claim that is plausible on its face that his 2012 OSC
complaint was a contributing factor in the agency’s decision not to select him for
the Combat Development Specialist position in 2015. See Hessami, 979 F.3d
at 1369; see also Skarada , 2022 MSPB 17, ¶ 19 . As mentioned above, one way to
make such a determination is the knowledge/timing test. Skarada, 2022 MSPB
17, ¶ 19. Here, the appellant has alleged that the Deputy Director was
responsible for his nonselection and that he was aware of the 2012 OSC
complaint. IAF, Tab 4 at 9. Thus, the appellant’s allegations satisfy the
knowledge prong of the test. Regarding the timing prong, the appellant has
asserted on review that the Deputy Director was informed of his 2012 OSC
complaint in August of 2013, and his submissions otherwise suggest that the
nonselection occurred sometime around May of 2015.7 PFR File, Tab 1 at 11;
IAF, Tab 4 at 10. The Board has held that a personnel action taken within
1-2 years of an appellant’s disclosure or activity satisfies the timing component
of the knowledge/timing test. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015). Because the appellant’s claims effectively
amount to an allegation that the agency did not select him for the Combat
Development Specialist position within 21 months of the alleged relevant agency
official learning of the 2012 OSC complaint, we find that he has met the timing
prong of the knowledge/timing test at the jurisdictional stage. See Smith v.
Department of Agriculture , 64 M.S.P.R. 46, 65 (1994) (considering whether the
appellant established that his protected disclosures were a contributing factor in
the agency’s action when the action was taken within a reasonable time after the
7 Although we are cautious in considering documentary evidence at the jurisdictional
stage, we need not consider the appellant’s allegations “in a vacuum.” See Hessami,
979 F.3d at 1369. We find it appropriate in this specific instance to look beyond the
appellant’s allegation that he was not selected for a position to consider the documents
he attached to give that allegation a greater context. IAF, Tab 4 at 10. Moreover, the
context suggested by the appellant’s submission—that his nonselection occurred
sometime in or around May 2015—is not contradicted or challenged by the agency. 8
official taking the action became aware of the appellant’s disclosures) (emphasis
added). Based on our findings that the appellant met both prongs of the
knowledge/timing test, we, therefore, find that he nonfrivolously alleged that his
2012 OSC complaint was a contributing factor in his nonselection.
Based on the foregoing, we find that the appellant nonfrivolously alleged
that he engaged in protected activity that was a contributing factor to a personnel
action and that he has established the Board’s jurisdiction over his IRA appeal.
See Bishop, 2022 MSPB 28, ¶ 13 . Accordingly, we remand the appeal to the
Atlanta Regional Office, where the appellant is entitled to a hearing on the merits,
which he must prove by preponderant evidence. 5 U.S.C. § 1221(e)(1); 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 activity was a contributing factor
in the agency’s personnel action, the agency shall have the opportunity to prove,
by clear and convincing evidence, that it would have taken the same personnel
action in the absence of the protected activity. 5 U.S.C. § 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). 9
ORDER
For the reasons discussed above, we remand this case to the Atlanta
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.10 | Conklin_Robert_AT-1221-16-0700-W-1_Remand_Order.pdf | 2024-02-23 | ROBERT CONKLIN v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-16-0700-W-1, February 23, 2024 | AT-1221-16-0700-W-1 | NP |
2,263 | https://www.mspb.gov/decisions/nonprecedential/McConnell_Matthew_A_PH-0752-18-0113-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW A. MCCONNELL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-0752-18-0113-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.
Christopher Hawthorne , Esquire, 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
sustained his removal. On petition for review, the appellant asserts that the
administrative judge erroneously interpreted the evidence, statutes, and
regulations in sustaining the agency’s leave-related charges. Petition for Review
(PFR) File, Tab 1 at 5-8. He also claims that the administrative judge did 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).
2
properly address his claim of harmful error and failed to consider certain
mitigating factors relating to the penalty. Id. at 8-10.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the administrative judge’s analysis of the appellant’s allegations of
harmful error and retaliation for equal employment opportunity (EEO) activity,
we AFFIRM the initial decision.
The appellant asserts that the administrative judge failed to “analyze the
mandate of [Air Force Instruction (AFI)] 31-115 . . . when she determined that a
[Command-Directed Inquiry (CDI)] was not mandated.” PFR File, Tab 1 at 8.
The appellant contends that the administrative judge erroneously concluded that
the agency was not required to conduct a CDI to properly investigate his alleged
misconduct and that she misinterpreted the CDI Guide as “the regulation rather
than addressing AFI 31-115 which mandates that misconduct issues will be
(emphasis added) handled via a CDI investigation.” Id.
Although the appellant raised this argument below, Initial Appeal File
(IAF), Tab 16 at 22, the administrative judge did not address it in the initial
decision, IAF, Tab 18 at 13-14. Therefore, we address it here. See Spithaler v.
3
Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (an initial decision
must identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests).
The Board will not sustain an agency’s decision if the appellant “shows
harmful error in the application of the agency’s procedures in arriving at such
decision.” 5 U.S.C. § 7701(c)(2)(A). The Board may not assume that an
employee has been harmed by a procedural error; rather, the appellant must prove
harm. Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444,
¶ 13 (2015). A procedural error is harmful when it was likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Id.; see 5 C.F.R. § 1201.4(r).
AFI 31-115, entitled “Security Forces Investigations Program,” generally
appears to address the conduct of criminal investigations, which are not at issue
in this appeal. IAF, Tab 16 at 117, 121-23. Nevertheless, AFI 31-115 ¶ 2.1.5,
which covers internal Security Forces investigations, provides that “[d]iscipline
and general misconduct issues will be handled via a Commander-Directed Inquiry
(CDI) assigned by the DFC [Defense Force Commander] to a unit Senior
Noncommissioned Officer (SNCO) or Officer.” Id. at 123. It is unclear whether
this provision applied to all discipline and general misconduct issues involving
internal Security Forces investigations, or only to those involving potential
criminal conduct. Nevertheless, even assuming that AFI 31-115 ¶ 2.1.5 applied
in this case, the appellant has not shown by preponderant evidence that any
failure to conduct a CDI likely caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of such error. See
5 C.F.R. § 1201.56(b)(2) (requiring appellants to prove affirmative defenses by
preponderant evidence). Although the appellant asserted that a fair, thorough,
and objective CDI before initiating the removal action would likely have caused a
reasonable deciding official to reach a different conclusion, IAF, Tab 16 at 22, he
4
provided no evidence in support of this statement. Mere speculation as to what
might have happened if certain procedures had been followed does not establish
harm. Defense Intelligence Agency , 122 M.S.P.R. 444, ¶ 15. Thus, we find that
the appellant has not shown harmful error in this case.2
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
2 In analyzing the appellant’s claim of retaliation for Title VII EEO activity, the
administrative judge applied the standard set forth in Warren v. Department of the
Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). ID at 14-16. However, claims of
retaliation for engaging in Title VII EEO activity are analyzed under the same
framework used for Title VII discrimination claims. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 30. Nevertheless, because the appellant does not
challenge the administrative judge’s analysis of this affirmative defense and because it
is not obvious that application of the correct analytical framework 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.”).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. | McConnell_Matthew_A_PH-0752-18-0113-I-1_Final_Order.pdf | 2024-02-23 | MATTHEW A. MCCONNELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-0752-18-0113-I-1, February 23, 2024 | PH-0752-18-0113-I-1 | NP |
2,264 | https://www.mspb.gov/decisions/nonprecedential/Harvey_Angela_DC-315H-19-0486-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA HARVEY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-315H-19-0486-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angela Harvey , St. Leonard, Maryland, pro se.
Jonathan Mott and Trinh G. Warner , 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
dismissed her termination appeal for lack of jurisdiction without a hearing.
Generally, we grant petitions such as these only in the following circumstances:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). For the reasons
discussed below, we FORWARD the appellant’s claim of whistleblower reprisal
to the regional office with instructions for the administrative judge to docket a
new Individual Right of Action (IRA) appeal.
BACKGROUND
Effective May 1, 2017, the agency awarded the appellant a
career-conditional appointment to the competitive service position of GS -07
Contract Specialist, subject to a 2 -year initial probationary period. Initial Appeal
File (IAF), Tab 1 at 7-8. On April 24, 2019, the agency terminated the appellant
for post-appointment reasons under 5 C.F.R. § 315.804. Id. at 11-13. On May 6,
2019, the appellant filed a Board appeal and requested a hearing, challenging the
merits of her termination and arguing that her termination was in reprisal for
whistleblowing and equal employment opportunity (EEO) activity. Id. at 2-5.
She attached a copy of a whistleblower complaint that she had filed with the
Office of Special Counsel (OSC) that same day. Id. at 14-25.
The administrative judge issued a jurisdictional order, notifying the
appellant of the standards for proving Board jurisdiction over her appeal under
5 U.S.C. chapter 75, 5 C.F.R. part 315, subpart H, and the Whistleblower2
Protection Act (WPA). IAF, Tab 3 at 2-6. He ordered her to file evidence and
argument on the jurisdictional issue. Id. at 6. After the appellant failed to
respond within the deadline, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 5,
Initial Decision (ID). The administrative judge found that the Board lacks
jurisdiction under 5 U.S.C. chapter 75 because the appellant did not fit the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(A). ID at 3-5. He found
that the Board lacks jurisdiction under 5 C.F.R. § 315.806 because the appellant
did not allege that her termination was based on partisan political reasons or
marital status, and he found that the Board lacks jurisdiction under the WPA
because the appellant had not yet exhausted her administrative remedies with
OSC. ID at 5 & n.4. The administrative judge further found that, to the extent
that the appellant was claiming that her termination was based on other prohibited
personnel practices, the Board lacks jurisdiction over such claims absent an
otherwise appealable action. ID at 5-6.
The appellant has filed a petition for review, arguing that, under agency
regulations, her probationary period should have been 1 year rather than 2 years,
and otherwise challenging the merits of the termination. Petition for Review
(PFR) File, Tab 1 at 9. She has attached numerous documents to her petition for
review form. Id. at 10-134. The agency has not filed a response.
ANALYSIS
At the outset, we find that the appellant should have submitted to the
administrative judge the evidence and argument that she now submits for the first
time on review. Under 5 C.F.R. § 1201.115, the Board will not consider evidence
or argument presented for the first time in a petition for review absent a showing
that it was previously unavailable despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has made no such3
showing here.2 Nevertheless, under the particular circumstances of this case, we
find it appropriate to waive the regulatory requirement and consider the
appellant’s late-raised evidence and argument. See 5 C.F.R. § 1201.12.
The appellant does not challenge the administrative judge’s findings as
they pertain to the Board’s jurisdiction under 5 U.S.C. § 315.806 or the WPA.
For the reasons explained in the initial decision, we agree with these findings. ID
at 5 & n.2; see Calixto v. Department of Defense , 120 M.S.P.R. 557, ¶¶ 20-21
(2014); Williams v. Department of Defense , 96 M.S.P.R. 335, ¶ 14 (2004). To the
extent that the appellant is contesting the administrative judge’s jurisdictional
findings regarding her discrimination and EEO retaliation claims, PFR File, Tab 1
at 9, we agree with the administrative judge that these do not provide an
independent source of Board jurisdiction, ID at 5-6; 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).
Regarding the Board’s chapter 75 jurisdiction, the appellant argues that she
fits the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A)(i) because she
had already completed her 1 -year probationary period at the time of her
termination. PFR File, Tab 1 at 9. Tacitly acknowledging the requirement of
10 U.S.C. §§ 111(b) and 1599e(a), that competitive service appointees in the
military departments serve a 2-year probationary period, the appellant argues that
Air Force Instruction 36-1001 § 3.1 provides that “[e]mployees who receive a
career or career-conditional appointment, and who have not previously completed
probation serve a one-year probationary period.” PFR File, Tab 1 at 9, 23. We
find, however, that this Air Force Instruction conflicts with the statute, which
2 Among the documents that the appellant has submitted are several Inspector General
complaints that she filed after the close of the record below. PFR File, Tab 1 at 86-91.
Although these documents may have been previously unavailable, the information
contained in them was not. 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).4
imposes a mandatory 2 -year probationary period. 10 U.S.C. § 1599e(a).3 The
statute allows for the probationary period to be extended, but it does not allow for
it to be shortened. Id. Where there is an affirmative conflict between a statute
and an agency rule or regulation, the Board will follow the statute. Johnson v.
Department of Justice , 71 M.S.P.R. 59, 67 (1996). We therefore agree with the
administrative judge that because the agency terminated the appellant within
2 years of her appointment, she was not an “employee” with chapter 75 appeal
rights. ID at 3-5 & n.2; see 5 U.S.C. § 7511(a)(1)(A); 10 U.S.C. § 1599e(a), (d).
Nevertheless, we find it appropriate at this time to forward this case to the
administrative judge for consideration as an individual right of action (IRA)
appeal. The record shows that the appellant filed her OSC complaint on May 6,
2019, and when the initial decision was issued on May 16, 2019, 120 calendar
days had not elapsed and the appellant had not shown that OSC had terminated its
investigation into her allegations. Therefore, the administrative judge correctly
dismissed the IRA appeal for lack of jurisdiction. See Kochanoff v. Department
of the Treasury, 98 M.S.P.R. 405, ¶ 6 (2005). However, it is the Board’s practice
to adjudicate an appeal that was premature when it was filed but becomes ripe
while pending with the Board. Id., ¶ 7. Because more than 120 days have now
elapsed since the appellant’s May 6, 2019 whistleblower complaint to OSC, her
whistleblower claim is ripe for adjudication. See 5 U.S.C. § 1214(a)(3)(B); cf.
Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327, ¶¶ 7-8 (2007)
(remanding an IRA appeal for adjudication that was premature when filed but
ripened while the appeal was pending).
Accordingly, we forward the appellant’s IRA claim to the administrative
judge with instructions to docket a new IRA appeal.
3 The 2-year probationary period for DOD employees has been repealed, but only for
appointments made on or after December 31, 2022. Bryant v. Department of the Army ,
2022 MSPB 1, ¶ 8. 5
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Harvey_Angela_DC-315H-19-0486-I-1_Final_Order.pdf | 2024-02-23 | ANGELA HARVEY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-315H-19-0486-I-1, February 23, 2024 | DC-315H-19-0486-I-1 | NP |
2,265 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Nina_M_DA-1221-17-0500-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NINA M. COLEMAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-1221-17-0500-W-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
ina M. Coleman , Dallas, Texas, pro se.
Morgan Kinney , 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 her request for corrective action in this individual right of action appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant has timely filed a petition for review, as well as a supplement
to her petition for review. Petition for Review (PFR) File, Tabs 1-2.2 The agency
has filed a response in opposition to the petition for review, and the appellant has
not filed a reply. PFR File, Tab 4. Additionally, the Office of Special Counsel
(OSC) has filed an amicus curiae brief.3 PFR File, Tab 5.
On review, the appellant argues that the administrative judge erred in the
following manner: (1) by asserting that the appellant could have left the disaster
site earlier so as to complete her travel by December 24th; (2) determining that
2 Although the finality date of the initial decision was October 19, 2018, and the
appellant’s petition for review was electronically time-stamped as received at
12:52 a.m. Eastern Time on October 20, 2018, the Board acknowledged the appellant’s
petition for review as timely filed because she filed it from the Central Time Zone.
PFR File, Tab 1 at 1, Tab 3 at 1-2; see 5 C.F.R. § 1201.14(m)(1) (2018) (noting that the
timeliness of all pleadings filed via the Board’s e-Appeal Online system are assessed
based on the time zone from which the pleadings were being filed).
3 We grant OSC’s unopposed motion for leave to file an amicus curiae brief. PFR File,
Tab 5 at 2 n.1; see 5 C.F.R. § 1201.34(e) (setting forth the procedures for
amicus curiae). In its amicus curiae brief, OSC argues that the changes to 5 U.S.C.
§ 2302(b)(9)(D) introduced by the Follow the Rules Act (FTRA), Pub. L. No. 115-40,
131 Stat. 861 (2017), should be applied retroactively to personnel actions that occurred
prior to the Act’s enactment and requests that the Board grant the petition for review
and remand the appeal to the administrative judge for new findings based on a
retroactive application of the FTRA. PFR File, Tab 5 at 1 -13.
3
the December 9, 2016 email regarding her departure from the disaster area was
addressed to the appellant and included instructions directed at her;
(3) disregarding the fact that the appellant’s Branch Director was aware the
appellant was traveling by car; and (4) stating that the appellant’s reasonable
accommodation request may not have been in effect during the relevant
timeframe. PFR File, Tab 1 at 5. She also argues that the administrative judge
erred by failing to address a number of issues the appellant raised in her
pleadings below, including the appellant’s discussions of laws against drowsy
driving, a news article related to a traffic accident and road closure, and questions
related to the effective date of her termination. Id. at 4-5. Finally, the appellant
argues that the administrative judge erred by concluding that the Follow the Rules
Act, Pub. L. No. 115-40, 131 Stat. 861 (2017) (FTRA) did not apply retroactively
to her case.4 Id. at 6-7, 22-32.
4 The appellant has provided several attachments with her petition for review and in a
supplemental filing, including a link to a voicemail audio recording, copies of emails,
medical documentation, and news articles. PFR File, Tab 1 at 8-21, 33; Tab 2 at 10-21,
34-35. We have reviewed these attachments, and we find that the appellant has not
shown that any of the information is either new or material, so we have not considered
it. See Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009)
(noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with a petition for review absent a showing that it is both
new and material). A number of the documents, including the conditions of
employment form, the reasonable accommodation request, the cost comparison, the
news article, and most of the email messages, were included in the record below. Initial
Appeal File (IAF), Tab 1 at 9-19; Tab 13 at 8; Tab 18 at 17-20; Tab 51 at 13-14, 18-20;
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). Further, with the exception of
the email containing a link to a voicemail recording, all of the documents predate the
initial decision, and therefore are not “new.” Although the email appears to be “new”
in the sense that the appellant created the link and sent it to herself on October 17,
2018, after the initial decision was issued, the content of the message is not new
because the appellant was in possession of the voicemail message before the initial
decision was issued and referred to it in a filing below. IAF, Tab 55 at 5; see
Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564-65 (1989) (declining to
consider documents submitted for the first time on review where the appellant admitted
that he was in possession of the information contained in the documents before the
initial decision had been issued). Additionally, it is not material because it does not
change the outcome of the case.
4
In Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 19, the Board
considered for the first time whether the changes in the FTRA expanding section
2302(b)(9)(D)'s coverage to include a rule or regulation applied retroactively,
concluding that, based on the test set forth by the U.S. Supreme Court in
Landgraf v. USI Film Products , 511 U.S. 244 (1994), the FTRA does not apply to
events that occurred prior to the FTRA's enactment. Accordingly, we agree with
the administrative judge's conclusion that the changes to section 2302(b)(9)(D)
incorporated in the FTRA do not retroactively apply here, when both the
challenged order and the allegedly retaliatory action predate the June 14, 2017
enactment of the FTRA, and consequently, we conclude that this appeal is
governed by the pre-FTRA language of section 2302(b)(9)(D). See Fisher,
2023 MSPB 11, ¶ 19; Initial Appeal File, Tab 63, Initial Decision (ID) at 9-10.
Having determined that the appeal was governed by the pre-FTRA version
of 5 U.S.C. § 2302(b)(9)(D), the administrative judge concluded that the
appellant failed to meet her burden of proving that she was terminated because
she refused to obey an order that would have required her to violate a law. ID
at 10. We agree. As the administrative judge correctly observed, our
reviewing court has held that the protections in the pre-FTRA version of section
2302(b)(9)(D) extend only to orders that would require an individual to take an
action barred by statute. Rainey v. Merit Systems Protection Board , 824 F.3d
1359, 1361-62, 1364-65 (Fed. Cir. 2016) (holding that the protection granted in
section 2302(b)(9) is limited to orders that are contrary to a statute and does not
encompass orders that are contrary to an agency’s rules or regulations); see
Department of Homeland Security v. MacLean , 574 U.S. 383, 394-95 (2015)
(construing statutory language in 5 U.S.C. § 2302(b)(8) to find that a disclosure
prohibited by agency rule or regulation was not a disclosure prohibited by law) ;
ID at 9.
Accordingly, the administrative judge correctly determined that the
appellant’s activity did not constitute protected activity. Consequently, we
5
discern no error in the administrative judge’s conclusion that the appellant failed
to prove by preponderant evidence that she made any protected disclosure under
5 U.S.C. § 2302(b)(8) or engaged in any protected activity as defined in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), and (D).5 Nor do we discern any errors in the
administrative judge’s factual findings.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
5 The Whistleblower Protection Enhancement Act of 2012 (WPEA), which went into
effect on December 27, 2012, does not affect the relevant holding in this cited
authority, nor does it affect the relevant holdings in the other authorities cited herein
that were issued prior to the effective date of the WPEA. See Pub. L. No. 112-199,
126 Stat. 1465. Additionally, all of the relevant events in this appeal occurred after the
December 27, 2012 effective date of the WPEA. Therefore, we have applied the WPEA
to this appeal.
Furthermore, during the pendency of this appeal, the National Defense Authorization
Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into
law on December 12, 2017. Section 1097 of the NDAA amended various provisions
of Title 5 of the United States Code. Our decision here would be the same under both
pre- and post-NDAA law.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Coleman_Nina_M_DA-1221-17-0500-W-1_Final_Order.pdf | 2024-02-23 | NINA M. COLEMAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-1221-17-0500-W-1, February 23, 2024 | DA-1221-17-0500-W-1 | NP |
2,266 | https://www.mspb.gov/decisions/nonprecedential/Pitts_Vincent__P_DC-0752-17-0808-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT PITTS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-17-0808-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vincent Pitts , Randallstown, Maryland, pro se.
John Chamblee , Peachtree City, 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
sustained his removal. On petition for review, the appellant asserts that the
administrative judge erred in finding that he failed to prove his allegations of
discrimination and retaliation, and that the agency erred in relying on his prior
misconduct in selecting the removal penalty. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Pitts_Vincent__P_DC-0752-17-0808-I-1__Final_Order.pdf | 2024-02-23 | VINCENT PITTS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-17-0808-I-1, February 23, 2024 | DC-0752-17-0808-I-1 | NP |
2,267 | https://www.mspb.gov/decisions/nonprecedential/Harris_Juanita_M_DA-0752-18-0081-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUANITA M. HARRIS,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0752-18-0081-I-1
DATE: February 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
uanita M. Harris , Bentonville, Arkansas, pro se.
Gretchen M. McMullen , Mount Rainier, Maryland, for the agency.
Stephanye Snowden , 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 her removal. On petition for review, the appellant denies that she
engaged in the charged misconduct, reiterates her race discrimination claim, and
challenges the reasonableness of the penalty. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
as 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
discrimination claim, we AFFIRM the initial decision.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudicating race discrimination claims under Title VII. Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶ 21-25. Under Pridgen,
the appellant bears the initial burden of proving by preponderant evidence that
her race was a motivating factor in the agency’s removal action. Pridgen,
2022 MSPB 31, ¶ 21. Here, the administrative judge found that the appellant
failed to show that her race was a motivating factor in her removal. Initial
Decision at 23-24. Because we agree with the administrative judge that the
appellant failed to meet her initial burden, the administrative judge’s reliance on
a now-obsolete legal standard does not affect the result in this case.2
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claim, it is unnecessary for us to
address whether the appellant’s race was a but-for cause of the removal action. See
Pridgen, 2022 MSPB 31, ¶¶ 20-25.
3
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Harris_Juanita_M_DA-0752-18-0081-I-1_Final_Order.pdf | 2024-02-23 | JUANITA M. HARRIS v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0752-18-0081-I-1, February 23, 2024 | DA-0752-18-0081-I-1 | NP |
2,268 | https://www.mspb.gov/decisions/nonprecedential/Sanders_Susan_M_CH-0752-18-0346-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSAN M. SANDERS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0346-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amber D. Flattery , Moravia, Iowa, for the appellant.
Jennifer C. Pace , 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 her appeal for lack of jurisdiction. On petition for review, the
appellant argues, as she did below, that her retirement was involuntary because
the agency carried her on leave without pay after she properly requested sick
leave and assigned her to duties for which she was not fully trained. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision 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 | Sanders_Susan_M_CH-0752-18-0346-I-1__Final_Order.pdf | 2024-02-22 | SUSAN M. SANDERS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0346-I-1, February 22, 2024 | CH-0752-18-0346-I-1 | NP |
2,269 | https://www.mspb.gov/decisions/nonprecedential/Munoz_AnthonyDA-3443-18-0360-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY MUNOZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-3443-18-0360-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Menchaca , San Antonio, Texas, for the appellant.
Yvette K. Bradley , Esquire, Dallas, 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 his appeal for lack of jurisdiction. On petition for review, the appellant
argues that the Board has jurisdiction over his claims as an individual right of
action (IRA) appeal. Petition for Review (PFR) File, Tab 1 at 3.2 Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 On August 22, 2018, the appellant filed a request for leave to file an additional
pleading, in which he alleged that he has new evidence that he was paid “almost 30 days
grant petitions such as 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 contention that the Board has jurisdiction over
his claims as an IRA appeal, U.S. Postal Service employees, such as the
appellant, cannot file IRA appeals seeking corrective action for retaliation for
whistleblowing. See Kapica v. U.S. Postal Service , 95 M.S.P.R. 556, ¶ 6 (2004);3
Booker v. U.S. Postal Service , 53 M.S.P.R. 507, 510 (1992), aff’d, 982 F.2d 517
(Fed. Cir. 1992). Rather, they may raise whistleblowing only as an affirmative
defense to an otherwise appealable action. Booker, 53 M.S.P.R. at 510. Because
behind his schedule.” PFR File, Tab 5 at 3. On March 1, 2019, the appellant again
filed a request for leave to file an additional pleading, alleging in a conclusory fashion
that he has “[n]ew evidence . . . that . . . would be very helpful.” PFR File, Tab 7 at 3.
The appellant has not demonstrated in either of these motions that he received his
alleged new evidence after the close of record on review or how any such evidence is
material to his appeal. See 5 C.F.R. § 1201.114(a)(5), (k). We therefore DENY both of
the appellant’s requests for leave to file an additional pleading.
3 Although the appeal was filed following the enactment of the Whistleblower
Protection Enhancement Act (WPEA), which went into effect on December 27, 2012,
we find that nothing in the WPEA would allow a Postal Service employee to file an IRA
appeal. See Pub. L. No. 112-199, 126 Stat. 1465 (2012).2
there is no appealable action here, the Board lacks jurisdiction over the
appellant’s allegation as an affirmative defense.4 See id.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
4 The administrative judge erred by suggesting in the acknowledgment order that the
appellant could establish jurisdiction over the appeal by raising a claim that the agency
retaliated against him for his whistleblowing. Initial Appeal File, Tab 2 at 2-3.
However, any such error does not provide a basis for disturbing the administrative
judge’s initial decision because it does not affect the appellant’s substantive rights.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party's substantive rights provides no basis
for reversal of an initial decision).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Munoz_AnthonyDA-3443-18-0360-I-1 Final Order.pdf | 2024-02-22 | ANTHONY MUNOZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-3443-18-0360-I-1, February 22, 2024 | DA-3443-18-0360-I-1 | NP |
2,270 | https://www.mspb.gov/decisions/nonprecedential/Kitt_Sylvia_M_AT-3443-18-0642-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SYLVIA M. KITT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-3443-18-0642-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sylvia M. Kitt , Pensacola, Florida, pro se.
Michael R. Skahan , Esquire, Dallas, 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 appeal alleging that she was improperly denied back pay for lack of
jurisdiction. On petition for review, the appellant reasserts her claim that the
Board has jurisdiction over her appeal because the underlying suspension that
entitles her to back pay lasted longer than 14 days and argues that the agency
violated the terms of the collective bargaining agreement . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Kitt_Sylvia_M_AT-3443-18-0642-I-1 Final Order.pdf | 2024-02-22 | SYLVIA M. KITT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-3443-18-0642-I-1, February 22, 2024 | AT-3443-18-0642-I-1 | NP |
2,271 | https://www.mspb.gov/decisions/nonprecedential/Prince_Francisco_E_CH-0731-18-0192-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCISCO E. PRINCE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0731-18-0192-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eustace A. Prince , Waukegan, Illinois, for the appellant.
Steve Newman , Esquire, New York, New York, for the appellant.
Darlene M. Carr , 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 Office of Personnel Management (OPM)’s decision to find the
appellant unsuitable for Federal employment, direct his employing agency to
terminate him from his Federal position, cancel his reinstatement eligibilities 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).
other eligibilities, and debar him from Federal employment in covered positions
for a period of 3 years. On petition for review, the appellant challenges the
administrative judge’s decision to affirm OPM’s negative suitability
determination, arguing that OPM failed to prove charges 1 and 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
address the appellant’s request to present new argument, supplement the
administrative judge’s discussion of the evidence in support of charge 1, and
VACATE her analysis of the Board’s jurisdiction to review suitability actions
taken against tenured Federal employees, we AFFIRM the initial decision.
We decline to consider the appellant’s new arguments that he raises on review.
On review, the appellant requests that the Board consider his new
arguments because his attorney representative was unable to submit a closing
brief due to unforeseen “technological” and “computer hardware” problems.
Petition for Review (PFR) File, Tab 1 at 2, 8. A substantial portion of the
appellant’s arguments are raised below and based on evidence already in the
record; therefore, they are not a basis for granting the petition for review.2
See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (providing
that evidence that is already a part of the record is not new).
As to the appellant’s new arguments, the Board will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). He has not made such a showing. Further, the error of his representative
does not excuse his failure to raise his arguments below. The appellant has not
explained the nature of the technological problems or how they prevented his
representative from requesting an extension or submitting his brief before the
initial decision’s issuance, especially considering that the administrative judge
extended the close of the record several times. Initial Appeal File (IAF), Tab 7
at 6, Tabs 12, 15, 17; see, e.g., Strickler v. Office of Personnel Management ,
51 M.S.P.R. 354, 357 (1991) (declining to consider the agency’s arguments raised
for the first time on review because it failed to sufficiently explain why its
representative was unable to raise those arguments below). The appellant is
responsible for the errors of his chosen representative . Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981). Accordingly, we decline to consider the
appellant’s arguments raised for the first time on review.2
2 The appellant also appears to raise an affirmative defense of race discrimination.
PFR File, Tab 1 at 11-12. We find that the appellant, who has been represented by both
an attorney and non-attorney, waived or abandoned this claim because he did not raise
any substantive arguments below on this issue in his pleadings; he did not object to the
administrative judge’s order that did not include this affirmative defense as an issue on
appeal, despite being apprised of the consequences of such failure; and he offers no
more substantive argument on this issue on review. PFR File, Tab 1 at 11-12; IAF,
Tab 1 at 37, Tab 7; See Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18
(setting forth the factors for considering whether the appellant waived or abandoned his
affirmative defense, such as the thoroughness and clarity with which the appellant
raised his affirmative defense, the degree to which the appellant continued to pursue his
affirmative defense in the proceedings below after initially raising it, and whether the
appellant objected to a summary of the issues to be decided that failed to include the
potential affirmative defense when he was specifically afforded an opportunity to object
and the consequences of his failure were made clear).3
The administrative judge properly sustained charge 1.
On review, the appellant reasserts that the signed statement he made during
the Navy Exchange (NEX)’s investigation into his misconduct was coerced;
denies that he received or assisted his coworker in receiving unauthorized
discounts; and argues that the agency’s circumstantial evidence, which consisted
of inadmissible hearsay, was insufficient to prove the charge.3 PFR File, Tab 1
at 6-11. We find these arguments unavailing.
The Board has found that when an appellant repudiates, under oath, his
unsworn extrajudicial statement made in a custodial situation, due process
requires the agency to submit independent evidence in support of the charge.
Wohlwend v. Department of Health and Human Services , 16 M.S.P.R. 458, 461
(1983); cf. Cole v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 9 (2014)
(finding that an appellant’s unrecanted admissions may suffice as proof of a
charge without additional proof from the agency). Here, however, the appellant
swore under penalty of perjury that he engaged in the misconduct. IAF, Tab 6
at 96. Even so, OPM submitted corroborating evidence in support of the charge.
See Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 549 (1994) (explaining that,
when the agency submits corroborative evidence in support of its charge, the
Board may properly consider an appellant’s unsworn recanted admission,
including whether the recantation is credible or not, as one of the pieces of
evidence against him), aff’d, 56 F.3d 1375 (Fed. Cir. 1995).
In addition to the NEX statement, OPM submitted the NEX report prepared
by the Loss Prevention Officer (LPO) assigned to the matter.4 IAF, Tab 6
3 The appellant reasserts that NEX violated his constitutional rights, including his First
and Fifth Amendment rights, and “E.E.O. [r]ights” when it interviewed him. PFR File,
Tab 1 at 11; IAF, Tab 1 at 37. Absent further clarification as to the nature of those
claims, we construe the appellant’s argument as a general assertion that his due process
rights were violated.
4 While some of the evidence in support of charge 1 is hearsay, as the appellant argues,
PFR File, Tab 1 at 8, hearsay evidence is admissible in Board proceedings, and the
assessment of the probative value of such evidence depends on the circumstances of
each case. See Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶154
at 88-96. The report included a printout from NEX’s system reflecting the sale
and the application of the unauthorized discount on the boots and indicated that,
during a separate interview, the appellant’s coworker identified him as a
participant in the discount scheme. Id. at 92. Contrary to the appellant’s
argument otherwise, there is no indication his coworker benefited from his
statement implicating the appellant, as he admitted to engaging in the misconduct
and apparently was removed as a result. PFR File, Tab 1 at 8; IAF, Tab 1 at 38.
The record reflects that the appellant made a verbal statement to the NEX Loss
Prevention/Safety Supervisor (LP/S), which the LP/S memorialized in the written
statement that the appellant signed and swore, under penalty of perjury, was
accurate. Id. at 90, 96, 106. Later that day, the appellant confirmed to another
management official, the NEX Softline Divisional Manager, that his statement
was accurate. Id. at 3. Although the appellant now denies that he had any
participation in creating the signed statement, the accuracy of the statement, and
engaging in the misconduct, PFR File, Tab 1 at 6-12, he does not contest the two
verbal statements. We therefore find that those verbal statements are credible and
corroborate his signed statement.
When compared to the consistent statements the appellant made during the
NEX investigation, his subsequent repudiations are not credible. See generally
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (explaining that
an administrative judge may consider a witness’s prior inconsistent statements in
resolving credibility issues). The appellant did not respond to NEX’s
January 2015 termination action, but rather began denying that he stole from NEX
and challenging the reliability of his NEX statement in submissions to OPM in
(2014) (citing Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83 -87 (1981)).
Less than 1 week after NEX interviewed the appellant and he submitted his signed,
sworn statement, the LPO prepared his report and signed a statement attesting to its
accuracy. IAF, Tab 6 at 89, 97. There is no evidence that the LPO had a motive to lie
or otherwise fabricate his report or statement.5
2017 and in statements to the Board in this appeal.5 IAF, Tab 1 at 2, 33 -38, Tab 6
at 54, Tab 11 at 10-11. These claims of coercion were inconsistent with each
other and became more elaborate with each telling; therefore, we do not find them
credible. Id. Because the voluntariness of the appellant’s extrajudicial sworn
statement was not seriously at issue and given the corroborating evidence, we
find no due process concerns raised by his statement. Cf. Wohlwend, 16 M.S.P.R.
at 461. Consequently, we discern no error in the administrative judge’s decision
to credit the NEX statement admitting to the misconduct over the appellant’s
subsequent repudiations, and affirm her finding that OPM proved the appellant
engaged in the misconduct as specified in charge 1.
The Board lacks authority to review OPM’s decision to direct the
appellant’s termination.
The administrative judge found that the Board could not review the
reasonableness of OPM’s decision to direct the appellant’s separation because he
was not a tenured Federal employee. Initial Decision (ID) at 7-8. Although the
administrative judge was correct in that the Board lacked jurisdiction to review
OPM’s suitability actions taken against the appellant, her reasoning and analysis
was erroneous. We therefore vacate those aspects of the initial decision.
Pursuant to the National Defense Authorization Act for Fiscal Year 2016,
Pub. L. No. 114-92, § 1086(h), 129 Stat. 726, 1010 (2015), when OPM makes a
suitability determination pursuant to its regulations, the Board does not have the
authority to adjudicate the matter as a chapter 75 adverse action, even if the
appellant is a tenured Federal employee. Odoh v. Office of Personnel
Management, 2022 MSPB 5, ¶ 16; see 5 U.S.C. § 7512(F). Instead, the Board’s
jurisdiction over a negative suitability determination is limited to that provided
under 5 C.F.R. § 731.501, which does not extend to reviewing or modifying the
ultimate action taken as a result of a suitability determination. Odoh, 2022 MSPB
5 Although the appellant asserts that he had only 1 day to respond to the termination
letter, he had “three calendar days after receipt of this letter” to respond. PFR File,
Tab 1 at 9; IAF, Tab 6 at 107.6
5, ¶ 16 (citing Folio v. Department of Homeland Security , 402 F.3d 1350, 1353,
1355-56 (Fed. Cir. 2005)).
Nevertheless, the administrative judge’s error is not a basis for granting the
petition for review because she ultimately reached the correct conclusion.
ID at 8; 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).
We therefore affirm, as modified, the administrative judge’s finding that the
Board lacks jurisdiction to review the suitability actions taken by OPM.
ID at 7-8.
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.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Prince_Francisco_E_CH-0731-18-0192-I-1__Final_Order.pdf | 2024-02-22 | FRANCISCO E. PRINCE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0731-18-0192-I-1, February 22, 2024 | CH-0731-18-0192-I-1 | NP |
2,272 | https://www.mspb.gov/decisions/nonprecedential/Allen_Carl_R_DA-831E-18-0424-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL R. ALLEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-831E-18-0424-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl R. Allen , Dallas, Texas, pro se.
Linette L. 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
sustained the final decision of the Office of Personnel Management (OPM)
dismissing the appellant’s request for reconsideration as untimely. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant’s reply to the agency’s opposition to his petition for review
contains the entirety of his arguments on review, which are outside the scope of
the factual and legal issues raised by the agency’s opposition. Petition for
Review (PFR) File, Tab 9; see 5 C.F.R. § 1201.114(a)(4) (providing that a reply
to a response to a petition for review is limited to the factual and legal issues
raised by another party in the response to the petition for review; it may not raise
new allegations of error). Even if we were to consider the arguments that the
appellant has raised in his reply, the appellant has not shown that the
administrative judge erred in sustaining OPM’s dismissal of the appellant’s
request for reconsideration as untimely. On review, the appellant argues that:
(1) the signed certified mail receipt that OPM submitted to show that the
appellant received OPM’s July 1, 1991 initial decision denying his application for
disability retirement does not prove that the envelope contained the initial
decision; (2) OPM treated him unfairly by requiring him to file a request for
reconsideration of the initial decision; and (3) his medical conditions prevented
him from timely filing a request for reconsideration.2 PFR File, Tab 9 at 5. Upon
consideration of the appellant’s arguments and review of the record evidence, we
conclude that the appellant’s arguments do not show error in the administrative
judge’s findings that the appellant’s request for reconsideration was untimely
filed by approximately 25 years and that the appellant did not show that he was
not notified of the time limit to file a request for reconsideration, and was not
otherwise aware of it, or that he was prevented by circumstances beyond his
control from making the request within the time limit. Initial Appeal File, Tab 27
at 3-6; see Cerezo v. Office of Personnel Management , 94 M.S.P.R. 81, ¶ 7 (2003)
(providing that OPM has discretion to extend the time limit for filing a request
for reconsideration but only when the individual shows that he was not notified of
the time limit and was not otherwise aware of it or that he was prevented by
circumstances beyond his control from making the request within the time limit);
5 C.F.R. § 831.109(e)(2). Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant also submitted documentary evidence in support of his reply to the
agency’s opposition to his petition for review. PFR File, Tab 9. Each document the
appellant has submitted is contained in the record below except for an article entitled
“Cognitive Impairment in Depression,” which we decline to consider, as the appellant
has not shown that the article was unavailable before the record closed despite his due
diligence. Initial Appeal File, Tab 22; PFR File, Tab 9 at 21-24; see Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980) (providing that, under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence).
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.
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Allen_Carl_R_DA-831E-18-0424-I-1 Final Order.pdf | 2024-02-22 | CARL R. ALLEN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-831E-18-0424-I-1, February 22, 2024 | DA-831E-18-0424-I-1 | NP |
2,273 | https://www.mspb.gov/decisions/nonprecedential/Pearsall_Linda_J_PH-0752-17-0184-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA J. PEARSALL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-17-0184-I-3
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda J. Pearsall , Centerville, Massachusetts, pro se.
Alice Bishop and Jonathan Smith , Bedford, Massachusetts, 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. On petition for review, the appellant
challenges the administrative judge’s findings of fact and credibility
determinations as to the charges, and generally disputes his conclusions regarding
the appellant’s allegation of disability discrimination and the reasonableness of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the 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 appellant 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 | Pearsall_Linda_J_PH-0752-17-0184-I-3__Final_Order.pdf | 2024-02-22 | LINDA J. PEARSALL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-17-0184-I-3, February 22, 2024 | PH-0752-17-0184-I-3 | NP |
2,274 | https://www.mspb.gov/decisions/nonprecedential/Carter_JurgenAT-0714-18-0263-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JURGEN CARTER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0263-I-1
DATE: February 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Glynneisha Bellamy , Decatur, Georgia, 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 pursuant to 38 U.S.C. § 714. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was formerly employed as a GS-5 Medical Support Assistant
with the agency’s Mental Health Service Line’s Homeless Program. Initial
Appeal File (IAF), Tab 5 at 9, 78. His job duties included managing
appointments and coordinating administrative information between staff and
patients. Id. at 73. By letter dated January 22, 2018, the agency proposed to
remove the appellant from his position pursuant to 38 U.S.C. § 714 based on two
charges: (1) unauthorized access of the Computerized Patient Record System
(CPRS); and (2) unauthorized access of the Veterans Information Systems and
Technology Architecture (VISTA). Id. at 13-16. In support of each charge, the
agency set forth one specification stating that the appellant had authority to
access patient records only in the performance of his official duties and assigned
tasks and identifying the dates and times that he accessed a particular patient’s
records without authorization. Id. It indicated that the appellant accessed the
patient’s CPRS records 26 times without authorization and the patient’s VISTA
records 24 times without authorization between May and September 2016. Id.
The appellant did not reply to the proposed removal. Id. at 10. By letter dated
February 5, 2018, the deciding official found that the charges were supported by
substantial evidence and removed the appellant, effective February 9, 2018. IAF,
Tab 5 at 10-12.
The appellant filed a Board appeal challenging his removal and raised
affirmative defenses of discrimination, retaliation, due process violation, harmful
procedural error, and laches. IAF, Tabs 1, 10. After holding a hearing, the
administrative judge issued an initial decision finding that the agency proved its
charges by substantial evidence and that the appellant failed to establish any of
his affirmative defense. IAF, Tab 16, Initial Decision (ID).
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded. PFR File, Tab 3.2
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal for substantial evidence was harmful.
The agency’s deciding official sustained the appellant’s removal based on
his conclusion that substantial evidence supported the charges. IAF, Tab 5 at 10.
After the initial decision in this case was issued, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021) , in which it determined that the
agency erred by applying a substantial evidence burden of proof to its internal
review of a disciplinary action taken under 38 U.S.C. § 714. The court found that
substantial evidence is the standard of review to be applied by the Board, not the
burden of proof to be applied by the agency. Id. at 1298-1300. The Court
reasoned that, because 38 U.S.C. § 714 requires that an agency’s deciding official
“determine” whether “the performance or misconduct . . . warrants” the action at
issue, the deciding official must use a preponderance of the evidence burden of
proof. Id. at 1297-99. The Federal Circuit’s decision in Rodriguez applies to all
pending cases, regardless of when the events at issue took place. Semenov v.
Department of Veterans Affairs , 2023 MSPB 16, ¶ 22 (stating that the Federal
Circuit’s decision in Rodriguez applies to all pending cases, regardless of when
the events at issue took place); see Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 16 (recognizing that a new precedential Federal Circuit
decision applied to all cases pending with the Board).
The administrative judge and the parties did not have the benefit of
Rodriguez, and therefore were unable to address its impact on this appeal.
Accordingly, we remand this appeal for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
different conclusion from the one it would have reached in the absence or cure of3
the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015);
5 C.F.R. § 1201.4(r). The appellant bears the burden of proving his affirmative
defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand,
the administrative judge shall provide the parties with an opportunity to present
additional evidence and argument, including a supplemental hearing if requested
by the appellant, addressing whether the agency’s use of the substantial evidence
standard in the removal decision constituted harmful error.
On remand, the administrative judge should also determine, if applicable, whether
the agency proved by substantial evidence that the penalty of removal was
reasonable.
The administrative judge did not review the reasonableness of the agency’s
penalty by applying the factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 (1981) ( Douglas factors). Rather, he noted that the Board lacked
authority to mitigate the agency’s penalty. ID at 4. At the time of the initial
decision, however, the administrative judge did not have the benefit of the
Federal Circuit’s decision in Sayers v. Department of Veterans Affairs , 954 F.3d
1370, 1379 (Fed. Cir. 2020), in which the Court held that, notwithstanding the
lack of authority to mitigate the penalty, the Board is required to review the
entirety of the decision, including the penalty in section 714 cases. See Connor v.
Department of Veterans Affairs , 8 F.4th 1319, 1325-27 (Fed. Cir. 2021);
Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1323 (Fed. Cir. 2021).
Accordingly, the Board must apply the Douglas factors in considering the
reasonableness of the penalty, and, if it finds that the agency failed to consider
the Douglas factors or that the penalty the agency imposed is unreasonable, it
must remand the appeal to the agency for redetermination of the penalty. Connor,
8 F.4th at 1326-27. On remand, the administration judge shall permit the parties
to submit additional evidence and argument, including a supplemental hearing if
requested by the appellant, addressing the penalty issue. The administrative
judge shall then review the penalty and determine whether the agency proved by4
substantial evidence that it applied the relevant Douglas factors and that the
penalty was reasonable.
ORDER
For the reasons discussed above, we remand this appeal to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then he shall determine whether the agency proved by substantial
evidence that it applied the relevant Douglas factors and that the penalty was
reasonable.2 The administrative judge may, if appropriate, incorporate into the
remand decision his prior findings concerning the agency’s proof of its charges
and the appellant’s affirmative defenses of laches, due process violation, and
harmful error.3 He may also incorporate into the remand decision, if appropriate,
his prior findings regarding status-based discrimination and retaliation for equal
employment opportunity activity, but in doing so, he must apply the analytical
2 If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.
3 If any argument or evidence adduced on remand affects the administrative judge’s
prior analysis of any issue in this appeal, he should address such argument or evidence
in the remand decision.5
framework set forth in Pridgen v. Office of Management and Budget , 2022 MSPB
31.4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 Regarding the appellant’s claims of discrimination based on his race, color, sex,
religion, and national origin and his claim of retaliation for exercise of his equal
employment opportunity rights, the administrative judge found that the appellant
presented no evidence to support his status-based discrimination claims and that he
failed to raise even an inference that his removal was in retaliation for his equal
employment opportunity activity. ID at 7-10. After the initial decision was issued, the
Board issued it its decision in Pridgen addressing, the analytical framework for
discrimination and retaliation claims. In light of the administrative judge’s findings
regarding the appellant’s claims, the change in analytical framework articulated in
Pridgen appears not to provide a basis to disturb the initial decision. 6 | Carter_JurgenAT-0714-18-0263-I-1 Remand Order.pdf | 2024-02-22 | JURGEN CARTER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0263-I-1, February 22, 2024 | AT-0714-18-0263-I-1 | NP |
2,275 | https://www.mspb.gov/decisions/nonprecedential/Cunningham_Mary_SF-0752-18-0388-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY CUNNINGHAM,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
SF-0752-18-0388-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary Cunningham , Carmichael, California, pro se.
Jack Foster Gilbert , Lakewood, Colorado, for the agency.
Katherine Soppet , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant argues that the administrative judge erred in finding that
the events that the appellant contends compelled her to retire occurred 5 months
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appellant’s retirement, that the agency was not ignoring the appellant’s
request for accommodation, that the agency had grounds for bringing the
suspension actions against the appellant, and that comments by the appellant’s
supervisor were not of such severity to compel someone to retire. The appellant
also reiterates her claim that the agency retaliated against her for testifying in a
whistleblower case.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). However, we
FORWARD the appellant’s allegation of reprisal for whistleblowing activity to
2 Following the enactment of the Whistleblower Protection Enhancement Act of 2012,
an appellant may file an individual right of action appeal with the Board concerning
alleged reprisal based on protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D). 5 U.S.C. § 1221(a). Under 5 U.S.C. § 2302(b)(9), “[a]ny employee
who has authority to take, direct others to take, recommend, or approve any personnel
action, shall not, with respect to such authority-- . . . take or fail to take, or threaten to
take or fail to take, any personnel action against any employee or applicant for
employment because of--(A) the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation--(i) with regard to remedying a violation of
paragraph (8) . . . or (B) testifying for or otherwise lawfully assisting any individual in
the exercise of any right referred to in subparagraph (A)(i) . . . .” It appears that the
appellant is alleging retaliation for testifying in a whistleblower case in violation of
section 2302(b)(9)(B).2
the Western Regional Office for docketing as an individual right of action appeal
and adjudication as appropriate.
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 | Cunningham_Mary_SF-0752-18-0388-I-1__Final_Order.pdf | 2024-02-22 | MARY CUNNINGHAM v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-18-0388-I-1, February 22, 2024 | SF-0752-18-0388-I-1 | NP |
2,276 | https://www.mspb.gov/decisions/nonprecedential/Puccerelli__Carol_A_NY-0752-17-0087-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL A. PUCCERELLI,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-17-0087-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
arol A. Puccerelli , Rocky Point, New York, pro se.
Jael Dumornay , New York, 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 that
sustained her removal from the agency for claiming Government benefits to
which she was not entitled and attempting to access her own tax account in
violation of agency policy. Generally, we grant petitions such as 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 began working for the agency in 2010 as a Contact
Representative. Initial Appeal File (IAF), Tab 6 at 36.2 In this position, the
appellant was responsible for communicating with taxpayers to assist them in
achieving tax compliance. IAF, Tab 1 at 8, Tab 28 at 35 ; Hearing Compact Disc
(HCD) (testimony of the appellant). This included accessing personal and
financial information for taxpayers to establish installation payments, ordering
tax transcripts, and adjusting taxpayer accounts. IAF, Tab 1 at 8, Tab 28 at 35 ;
HCD (testimony of the appellant).
Effective January 30, 2017, the agency removed the appellant on the charge
of claiming Government benefits to which she was not entitled and the charge of
attempting to access her own tax account. IAF, Tab 1 at 7, 12-13. The first
charge includes four specifications describing instances whereby the appellant
certified to the New York State Department of Labor (NYS DOL) that she was
not working or receiving income, when she was in fact working for the agency on
the reported dates in a pay status. Id. at 12-13. As a result, the appellant was
ineligible for unemployment benefits but received them anyway based on the
2 On her Standard Form 50, the appellant’s position is listed as a Contact
Representative; however, the agency commonly refers to this position as Customer
Service Representative. IAF, Tab 6 at 36, Tab 45 at 5 n.4. 2
false information that she provided. Id. The latter charge contains one
specification alleging that the appellant knowingly violated agency policy by
attempting to access her own tax account on the agency’s system. Id. at 13.
The appellant appealed her removal to the Board. IAF, Tab 1. After
holding a hearing, the administrative judge issued an initial decision affirming the
removal action, finding that the agency met its burden of proving the charges, a
nexus between the charges and the efficiency of the service, and the
reasonableness of the penalty. IAF, Tab 47, Initial Decision (ID) at 1-14. The
appellant’s petition for review and the agency’s response followed. Petition for
Review (PFR) File, Tabs 3, 8.
We have thoroughly reviewed the record in this case and agree with the
administrative judge’s well-reasoned and supported findings. There is no basis to
disturb them. 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 in the initial
decision when she considered the evidence, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).3
On review, the appellant claims that she was unfairly prejudiced due to the
duration between the charged misconduct occurring and her removal. PFR File,
Tab 3 at 5-6. The appellant argues that this amount of time prohibited her from
recovering call records that would have aided in her defense against the charge of
claiming Government benefits to which she was not entitled. Id. at 6.
Although sometimes a charge may be dismissed if an agency’s delay in
proposing the adverse action is unreasonable and prejudicial to an appellant, such
3 The Board’s decision in Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 9-18, issued
after the initial decision in this appeal, clarifies that the relevant inquiry for assessing a
claim of disparate penalty when weighing the reasonableness of a penalty is whether the
agency knowingly and unjustifiably treated employees who engaged in the same or
similar offenses differently. There is no evidence in the record to indicate that the
agency did so in this case. Thus, any subsequent change in the case law does not
provide a reason to disturb the conclusions of the initial decision. 3
circumstances do not exist in this appeal. See Messersmith v. General Services
Administration, 9 M.S.P.R. 150, 155-56 (1981) (holding that the delay between
the misconduct and the agency’s issuing the proposal was not a reason to overturn
the action, as the delay was caused by the seriousness of the charges, the
corresponding investigation, the U.S. Attorney’s involvement, and appeal, the
appellant did not identify any prejudicial harm from the delay). In this case, the
NYS DOL and the Treasury Inspector General for Tax Administration (TIGTA)
conducted a joint initiative beginning in 2014 to identify employees receiving
unemployment benefits under fraudulent claims. IAF, Tab 27 at 21-22. The
appellant knew that she was a subject of this investigation well before the
proposal to remove was issued, as the NYS DOL sent her notice in April 2015
that it was looking into her previous unemployment claims, and she then was
interviewed by TIGTA about the matter in April 2016. IAF, Tab 28 at 4, 37-38.
The appellant did not submit these now-mentioned call records to the NYS DOL
or TIGTA at these earlier times, nor is there anything in the record to indicate
that she even attempted to obtain these records. TIGTA discovered that the
appellant engaged in additional misconduct in November 2015 by attempting to
access her own tax account, which resulted in more investigation, delaying the
issuance of the proposal. IAF, Tab 27 at 21-22. Further delay was caused by the
agency’s referring the appellant’s misconduct to the U.S. Department of Justice,
which declined criminal prosecution. IAF, Tab 28 at 32. The appellant’s
argument does not diminish the strength of the agency’s evidence proving that
she engaged in the serious charged misconduct. Thus, the appellant’s arguments
do not provide a basis to disturb the initial decision.
The appellant takes issue on review with some of the credibility
determinations made by the administrative judge. Specifically, the appellant
claims that her hearing testimony—regarding not receiving the NYS DOL
unemployment insurance handbook and her attempts to call the NYS DOL to
self-report the ineligible payment of benefits—was more credible than the hearing4
testimony of the NYS DOL Investigative Officer, who testified that the appellant
did receive the handbook and the NYS DOL had no record of a telephone call
from the appellant to report an ineligible payment. PFR File, Tab 3 at 6-7; HCD
(testimony of NYS DOL Investigative Officer; testimony of the appellant). 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 v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987).
In the initial decision, the administrative judge properly assessed the Hillen
factors in finding the appellant’s testimony not credible. ID at 6-9. In weighing
the appellant’s testimony, the administrative judge noted the appellant’s overall
demeanor, how the documentary evidence refuted many of the appellant’s
statements, and the lack of sufficient explanations in the appellant’s responses.
ID at 7-8. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of a testifying witness. Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1373 (Fed. Cir. 2016) (stating that deference is due not only when
an administrative judge’s credibility determinations explicitly rely on demeanor,
but also when they do so “by necessary implication”). The Board may overturn
such determinations only when it has sufficiently sound reasons. Haebe,
288 F.3d at 1301. No such reason is present in this case. 5
In an effort to buttress her claims, the appellant attempts to submit new
evidence into the record on review that was not entered below. PFR File, Tab 3
at 6, 15-39. This evidence includes a bank receipt, a disciplinary action report
from the bargaining unit, a proposal and decision notice for another employee,
and a letter regarding potential settlement in an arbitration involving another
employee. Id. at 12-39. The Board generally will not consider evidence
submitted for the first time on review absent a showing that: (1) the documents
and the information contained in the documents were unavailable before the
record closed despite due diligence; and (2) the evidence is of sufficient weight to
warrant an outcome different from that of the initial decision. Cleaton v.
Department of Justice , 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed.
Cir. 2016).
In this instance, the bank receipt is from April 2013, years before the
record closed in this case, and the appellant admits that she came across it after
the hearing when organizing her personal papers. PFR File, Tab 3 at 6, 39.
Regarding the disciplinary action report, the appellant received notice in
May 2017, months before the record closed, that this report was available in an
accessible, searchable database. Id. at 14. The appellant made vague reference to
this report in her hearing testimony, but did not seek to admit it into evidence at
that time. HCD (testimony of the appellant). Similarly, the proposal and
decision notice, along with the letter regarding potential settlement of an
unrelated arbitration, are from earlier in 2016 and 2017, months before the record
closed here. PFR File, Tab 3 at 29, 34, 38. As a result, the appellant has not
made a showing that these documents were unavailable before the record closed
despite her due diligence. Further, she fails to explain how including these
documents in the record would demand a different result than that reached in the
initial decision. See Dyer v. Office of Personnel Management , 41 M.S.P.R. 244,
247 (1989) (holding that the Board would not consider evidence submitted by the
appellant for the first time on review because he did not establish that it was6
previously unavailable despite his due diligence and that the evidence was
sufficient to warrant a different outcome).
On review, as she did during the hearing, the appellant requests that any
evidence and testimony related to her NYS DOL unemployment file be struck
from the record, as she claims that such evidence was obtained impermissibly and
contains information of a personal nature. PFR File, Tab 3 at 7-8; HCD
(testimony of the appellant). However, the agency obtained such relevant
documentary evidence from the NYS DOL through a subpoena, while the
administrative judge issued a subpoena for the relevant hearing testimony of the
NYS DOL Investigative Officer. IAF, Tab 22 at 1-2; Tab 27 at 27-28; HCD
(testimony of TIGTA Special Agent). The NYS DOL provided a business records
certification when supplying the agency with the appellant’s file. IAF, Tab 27
at 29, Tab 41 at 8. The appellant has failed to raise a legitimate basis to support
granting her request. See Sabio v. Department of Veterans Affairs , 124 M.S.P.R.
161, ¶ 15 (2017) (denying the appellant’s motion to strike because she provided
no basis to grant it).
Lastly, many of the appellant’s other contentions on review, including
claims of disparate penalty and the agency’s failure to meet its burden of proving
the charges, a nexus between the charged misconduct and the efficiency of the
service, and the reasonableness of the removal penalty, merely reargue the issues
and findings of fact made by the administrative judge. PFR File, Tab 3 at 8-11.
Such contentions are inadequate to warrant granting her petition for review. See
Hsieh v. Defense Nuclear Agency , 51 M.S.P.R. 521, 524-25 (1991) (holding that
merely rearguing the same issues heard and decided by the administrative judge,
with nothing more, does not constitute a basis to grant a petition for review),
aff’d, 979 F.2d 217 (Fed. Cir. 1992) (Table). 7
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Puccerelli__Carol_A_NY-0752-17-0087-I-1_Final_Order.pdf | 2024-02-22 | CAROL A. PUCCERELLI v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-17-0087-I-1, February 22, 2024 | NY-0752-17-0087-I-1 | NP |
2,277 | https://www.mspb.gov/decisions/nonprecedential/Fernandez_Laura_D_DE-0432-20-0096-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA D. FERNANDEZ,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-0432-20-0096-I-3
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua C. Black , Esquire, Phoenix, Arizona, for the appellant.
Miranda Poonai , Washington, D.C., for the agency.
Ryan W. Burton , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for unacceptable performance under 5 U.S.C.
chapter 43 and found that the appellant proved her affirmative defenses of
disability discrimination and reprisal. 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: (1) concerning the basis for reversing the appellant’s removal; (2) to
apply the Board’s decision in Pridgen v. Office of Management and Budget ,
2022 MSPB 31, to the appellant’s claims of discrimination and retaliation; and
(3) regarding the analysis of the appellant’s claim of denial of reasonable
accommodation, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed by the agency as a GS-12 Financial
Administration Specialist. Fernandez v. Department of the Interior , MSPB
Docket No. DE-0432-20-0096-I-1, Initial Appeal File (IAF), Tab 23 at 18. On
June 24, 2019, the appellant’s supervisor issued her a notice of opportunity to
demonstrate acceptable performance (NODAP), the agency’s equivalent of a
performance improvement plan (PIP), which stated that the appellant’s
performance was unacceptable in critical element 3 of her position related to
preparing budget documents. Id. at 116-19. The NODAP afforded the appellant
30 days to demonstrate acceptable performance beginning on June 25, 2019. Id.
By letter dated July 31, 2019, the appellant’s supervisor notified her that she had2
successfully completed the opportunity to demonstrate acceptable performance.
Id. at 114. In the letter, her supervisor advised the appellant that she must
continue to perform at the fully successful level in critical element 3 for 1 year
after the issuance of the NODAP or risk removal for unacceptable performance.
Id. Thereafter, on October 10, 2019, the appellant’s supervisor issued the
appellant a notice of proposed removal based on the appellant’s post-NODAP
performance, which she charged had again declined to an unacceptable level in
critical element 3. Id. at 104-08. After the appellant responded to the proposal
notice, id. at 23-103, the deciding official issued a decision sustaining the
proposed removal, effective November 9, 2019, id. at 19-22.
The appellant filed a Board appeal challenging her removal and raised
affirmative defenses of disability discrimination (disparate treatment and denial
of reasonable accommodation) and reprisal for engaging in equal employment
opportunity (EEO) activity. IAF, Tabs 1, 9. After holding the appellant’s
requested hearing, the administrative judge issued an initial decision reversing the
appellant’s removal. Fernandez v. Department of the Interior , MSPB Docket
No. DE-0432-20-0096-I-3, Appeal File, Tab 7, Initial Decision (ID). The
administrative judge found that the agency failed to show that the appellant’s
performance prior to the issuance of the NODAP was unacceptable as required by
the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355, 1363
(Fed. Cir. 2021). ID at 12. The administrative judge further found that the
appellant proved that her disability and EEO activity were motivating factors in
her removal. ID at 13-29.
The agency has filed a petition for review to which the appellant has
responded. Petition for Review (PFR) File, Tabs 9, 14.3
DISCUSSION OF ARGUMENTS ON REVIEW
The agency failed to show that the appellant’s performance prior to the issuance
of the NODAP was unacceptable.
At the time the agency removed the appellant, the applicable law required
that, to prevail in a performance-based action under chapter 43, the agency prove
the following by substantial evidence: (1) the Office of Personnel Management
approved its performance appraisal system and any significant changes thereto;
(2) the agency communicated to the appellant the performance standards and
critical elements of her position; (3) the appellant’s performance standards were
valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the appellant of the
inadequacies of her performance during the appraisal period and gave her 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. While the appeal was pending before the Board, the
Federal Circuit issued its decision in Santos requiring that, to prevail in a
chapter 43 action, an agency must also prove that prior to being placed on a PIP
the appellant’s performance was unacceptable in a critical element.2 Santos,
990 F.3d at 1363. The Board has held that Santos is applicable to all pending
cases. Lee, 2022 MSPB 11, ¶ 16. As noted, the opportunity to demonstrate
acceptable performance is the agency’s equivalent to a PIP and we discern no
reason why the holding in Santos is not applicable here.
The administrative judge found that the agency’s performance standards for
critical element 3 were invalid because they were vague and generalized and did
2 Following the decision by the Federal Circuit in Santos, the parties agreed to reopen
the record to allow for supplemental hearing testimony from the appellant and the
appellant’s supervisor. Fernandez v. Department of the Interior , MSPB Docket
No. DE-0432-20-0096-I-2, Appeal File (I-2 AF), Tabs 20, 23. The administrative judge
dismissed the appeal without prejudice because of delays necessitated by the
representatives’ schedules and to facilitate the supplemental proceeding. I-2 AF,
Tab 24, Initial Decision.4
not permit, to the maximum extent feasible, the accurate appraisal of performance
based on objective criteria which were reasonable, realistic, attainable, and
clearly stated in writing. ID at 10. She further found, however, that any
deficiencies in the performance standards were cured by the NODAP in which the
appellant was given specific guidance regarding her completion of seven tasks.
ID at 11. The administrative judge then found that under Santos, the agency
failed to show that the appellant’s pre-NODAP performance was unacceptable.
ID at 11-13; see Santos, 990 F.3d at 1363.
The agency has not challenged the administrative judge’s findings
regarding the validity of its performance standards, and we discern no error in the
administrative judge’s general conclusion that the standards are impermissibly
vague. Critical element 3 of the appellant’s performance standards states that the
incumbent of the position, “[p]repares budget documents for assigned projects.
Budgetary functions include formulation, presentation, justification and execution
for different segments of several budget cycles ongoing simultaneously into
budget systems. Completes required budget documents and submits within
assigned deadlines. Negotiates new deadlines when necessary with supervisor.”
IAF, Tab 23 at 140. The fully successful performance level under the critical
element requires as follows:
The employee demonstrates good, sound performance that meets
organizational goals. Ensures assignments are completed within
specified timeframes. Supervisor is notified of non-routine work
issues, alterations, and status. The employee effectively applies
technical skills and organizational knowledge to get the job done.
The employee successfully carries out regular duties while also
handling any difficult special assignments. The employee plans and
performs work according to organizational priorities and schedules .
Id. Such standards are not tailored to the specific duties of the appellant’s
position, but rather mirror the agency’s benchmark standards applicable to all
employees, and do not invoke a general consensus as to what level of5
performance the agency expected from the appellant.3 Compare IAF, Tab 23
at 140 (critical element 3 standards), with IAF, Tab 23 at 145 (benchmark
standards).
The Board has found such standards invalid. For example, in Diprizio v.
Department of Transportation , 88 M.S.P.R. 73, ¶¶ 9-10 (2001), the Board found
that generic performance standards that applied to all Coast Guard employees
standing alone did not sufficiently permit evaluation based on objective criteria.
Similarly, in Henderson v. National Aeronautics and Space Administration ,
116 M.S.P.R. 96, ¶¶ 20, 22-24 (2011), the Board found that an agency did not
establish that an employee failed a PIP when the record did not invoke a general
consensus as to what level of performance the agency expected. Applying these
holdings to the instant case regarding the preparation of budget documents, for
example, there is nothing indicating the quantity or quality required for such
documents, or the rate or frequency of any errors permissible in such documents
at the fully successful level. We acknowledge that an agency need not set
specific quotas and that, given the appellant’s position as a GS-12 Financial
Administration Specialist, a certain amount of subjective judgment on the part of
the appellant’s supervisor is to be expected. See Greer v. Department of the
Army, 79 M.S.P.R. 477, 484 (1988) (recognizing that technical jobs may require
performance standards that are more subjective than jobs that are less
professional or technical in nature); see also Wilson v. Department of Health and
Human Services , 770 F.2d 1048, 1055 (Fed. Cir. 1985) (concluding that a
3 The agency’s benchmark standards state that performance at the fully successful level
requires, among other things, that the employee “demonstrates consistently successful
performance that contributes positively to organizational goals” and “effectively applies
technical skills and organizational knowledge to deliver results based on measures of
quality, quantity, and/or effectiveness within agreed-upon deadlines, keeping the rating
official informed of work issues, alterations, and status.” IAF, Tab 23 at 145. Such
standards similarly do not invoke a general consensus as to required performance at the
fully successful level and appear to be a general framework assuming more specific
performance metrics would be further defined in specific performance standards
tailored to each position. 6
performance standard providing that reports must require “minimum revisions”
was sufficiently objective and precise, despite allowing for some subjective
judgment on the part of the appellant’s evaluators). Nonetheless, we find that the
performance standards here fail to invoke a general consensus as to their meaning
or provide a firm benchmark toward which the appellant was to aim her
performance.
Absent valid performance standards, the Board cannot assess whether the
appellant’s performance was unacceptable. See, e.g., Henderson, 116 M.S.P.R.
96, ¶ 9; Ortiz v. Department of Justice , 46 M.S.P.R. 692, 695 (1991); Williams v.
Department of Health and Human Services , 30 M.S.P.R. 217, 220 (1986).
However, when performance standards are vague on their face, the agency may
cure the defect by fleshing out the standards through additional oral or written
communication. Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 23
(2013). For example, an agency may give content to performance standards by
informing the appellant of specific work requirements through written
instructions, information concerning deficiencies and methods of improving
performance, memoranda describing unacceptable performance, and responses to
the appellant’s questions concerning performance. Romero v. Equal Employment
Opportunity Commission , 55 M.S.P.R. 527, 535 (1992), aff’d, 22 F.3d 1104 (Fed.
Cir. 1994) (Table).
While the administrative judge found that the agency provided content to
its performance standards via the NODAP, nothing in the record suggests that the
agency cured its vague performance standards prior to the issuance of the
NODAP. As discussed above, under Santos, the agency must prove that the
appellant’s pre-PIP performance was deficient, and that rule applies to the
appellant’s opportunity to demonstrate acceptable performance (the equivalent of
a PIP). Thus, absent evidence that the vague performance standards were cured
prior to issuance of the NODAP, we cannot find that the agency met its burden. 7
The agency did not present much evidence concerning, for example, the
ways in which it counseled or informed the appellant of her pre-NODAP
performance deficiencies regarding preparing budget documents. The appellant’s
supervisor’s 2018 annual performance review notes, dated October 16, 2018,
reflect that she discussed with the appellant that the appellant needed to “pick up
the pace” and have “less” mistakes. IAF, Tab 26 at 106. Nonetheless, she rated
the appellant fully successful in all critical elements as well as fully successful
overall without any comments or cited deficiencies related to preparing budget
reports. IAF, Tab 23 at 152-165. The supervisor’s notes of the appellant’s
April 15, 2019 mid-year performance review reflect that the appellant’s
supervisor discussed the appellant’s needed to work on “completion of telework
tasks.” IAF, Tab 26 at 145. This was approximately 2 months prior to the
issuance of the NODAP. The appellant testified that she had errors in her reports
in the past, which were simply returned to her to correct after her supervisor
reviewed the report, but that she was still rated fully successful. Hearing
Transcript (HT) (June 22, 2021) at 61 (testimony of the appellant); HT
(October 14, 2020) at 40-41 (testimony of the appellant). She also testified that
she believed her supervisor would continue to review her reports and catch any
errors. HT (June 22, 2021) at 60-61 (testimony of the appellant). While the
appellant’s supervisor may have felt that she was merely being lenient by
allowing the appellant to make errors but still be rated fully successful for the
first 3 years of her employment, HT (June 22, 2021) at 41, 43 (testimony of the
appellant’s supervisor), nothing in the record reflects that, prior to issuing the
NODAP, she communicated to the appellant that after a certain amount of time in
the position these same types of errors would be considered unacceptable. To the
extent that the appellant was told to pick up the pace and make fewer mistakes,
we find such statements failed to clearly inform the appellant of what level of8
performance was expected of her.4 The appellant’s supervisor may have had
pre-NODAP discussions or email exchanges in which she provided more specific
feedback on the appellant’s work and performance expectations, but they are not
part of the record before us. Thus, we are unable to discern what level of
performance the agency expected of the appellant regarding the content and
quality of her work.
On review, the agency asserts that the administrative judge erred to the
extent she found that the agency failed to show that the appellant’s pre-NODAP
performance was unacceptable because she concluded that the four instances cited
in the NODAP only amounted to a small part of the appellant’s job duties. PFR
File, Tab 9 at 18. The agency further asserts that, because the appellant’s
performance standards do not contain any quotas for how many mistakes or
incomplete assignments would be acceptable, any conclusion regarding what
portion of the job the mistakes constituted would be speculative. Id. The
administrative judge concluded that, if the errors identified in the NODAP
constituted a small portion of the appellant’s job functions, they would not rise to
the level of unacceptable performance, but if they constituted more than a small
part of her job functions, than a finding of unacceptable performance might be
appropriate. ID at 12. We construe such findings as tantamount to concluding
that the agency’s performance standards fail to provide a firm benchmark by
which to gauge the appellant’s performance.
In sum, because the agency has not shown that, prior to the NODAP it
provided content to the appellant’s invalid performance standards, we cannot
conclude that the appellant’s pre-NODAP performance was unacceptable.
Accordingly, we agree with the administrative judge that the agency failed to
prove its action.
4 Notwithstanding the agency’s October 2018 direction to the appellant to have “less”
mistakes, the expectations outlined by her supervisor in a July 31, 2019 letter appear to
leave no room for errors. IAF, Tab 23 at 114.9
The appellant proved that discrimination and retaliation were but-for causes of
her placement on an opportunity to demonstrate acceptable performance
and removal.
As the administrative judge found, the appellant suffered from migraines
that substantially limited her major life activities of concentrating and working.
ID at 15-16. The administrative judge also found that the appellant engaged in
EEO activity when she filed an informal EEO complaint in or around June 2018.
ID at 16. However, the appellant also engaged in EEO activity from
approximately July 2017 until September 2018, when she repeatedly requested
telework as a reasonable accommodation. ID at 18-23; see Pridgen, 2022 MSPB
31, ¶ 44 (acknowledging that both requesting a reasonable accommodation and
complaining of disability discrimination are protected activities).
On July 18, 2017, the appellant’s supervisor informed the appellant of her
intent to discontinue the appellant’s 1 day a week of telework. IAF, Tab 27
at 18-19. In response, the appellant met with her supervisor to discuss her
medical diagnoses and explain how telework was helpful due to her medical
conditions. HT (October 14, 2020) at 25 (testimony of the appellant). Thereafter,
on August 2, 2017, the appellant submitted a 2015 letter from her medical
provider in support of her telework request 5 IAF, Tab 27 at 24. The appellant’s
supervisor requested an updated letter because the 2015 letter was over 2 years
old and on August 18, 2017, the appellant submitted an August 4, 2017 letter in
support of what she described as her doctor’s first instruction for 2 days of
telework. IAF, Tab 9 at 13-14; Tab 27 at 24; ID at 20. The 2017 letter identified
5 As the administrative judge explained, it is unclear which of two 2015 letters the
appellant submitted. ID at 18-19. A September 1, 2015 letter stated that the appellant
suffered from chronic migraines and that after an episode “she requires quiet and
decreased light exposure for up to two days. She should be allowed to work from home
during these periods. The episodes have been occurring as frequently as one per week.
This would involve four days of telework every two weeks.” IAF, Tab 9 at 16. An
October 27, 2015 letter was less specific about the need for telework, but noted that the
appellant’s migraines lasted 1-2 days, the recovery period was up to 2 days and a fixed
telework agreement would improve attendance and concentration and aid in migraine
prevention. IAF, Tab 27 at 26.10
various migraine triggers, noted the appellant’s migraines lasted 1-2 days, with a
2-day recovery period, and recommended that the appellant be granted a fixed
telework agreement to improve attendance and concentration as well as aid in
migraine prevention. IAF, Tab 9 at 14. In response, the appellant’s supervisor
permitted the appellant to keep teleworking 1 day a week. HT (September 30,
2020) at 79 (testimony of the appellant’s supervisor).
On August 28, 2018, the appellant again requested 2 days of telework,
which her supervisor denied on September 11, 2018. IAF, Tab 26 at 14. The
appellant requested reconsideration, reiterating that it was for a medical
accommodation for her migraines. Id. at 12. Her supervisor denied this request
on September 25, 2018, noting that “telework is at management’s discretion,” that
she had the right to deny it, she was not approving any additional telework until
the appellant’s performance improved, and the appellant’s current medical
documentation was insufficient.6 Id. The following day, the appellant’s
supervisor issued the appellant a letter requesting additional medical
documentation. IAF, Tab 27 at 173. She also issued the appellant a letter of
caution after the appellant teleworked without authorization during a migraine
recovery period. IAF, Tab 17 at 13-15.
The administrative judge found that the appellant proved that her disability
and EEO activity were motivating factors in her supervisor’s decision to place her
on an opportunity to demonstrate acceptable performance. ID at 13-29. Among
other things, the administrative judge found that other similarly situated
non-disabled employees were permitted to telework 2 days a week while the
appellant’s requests to do so as a reasonable accommodation was repeatedly
6 The appellant’s supervisor also stated that she had requested a new medical letter in
June 2018. IAF, Tab 26 at 12. However, such a request appears to have related to a
different request for reasonable accommodation which was the subject of a July 19,
2018 mediation. IAF, Tab 27 at 173. The appellant had requested to drive rather than
to fly for work travel due to her migraines. IAF, Tab 9 at 17-19. She filed an EEO
complaint alleging disability discrimination when she was paid a reduced mileage rate.
IAF, Tab 17 at 9.11
denied. ID at 24-25. The administrative judge declined to credit the appellant’s
supervisor’s explanation that the difference in treatment was due to the
appellant’s performance deficiencies. Rather, the administrative judge found that
such an explanation was pretext because the appellant’s supervisor admitted that
she never held the appellant’s purported performance problems against the
appellant in her performance ratings. ID at 25.
After finding that the appellant proved motivating factor, the administrative
judge next considered whether the agency proved that it would have removed the
appellant absent the impermissible motivating factor. ID at 29. However, after
the issuance of the initial decision, the Board issued Pridgen, 2022 MSPB 31, in
which it clarified that claims of reprisal for engaging in disability-based EEO
activity are not subject to the motivating factor standard, but rather they are
exclusively subject to the but -for standard. Id., ¶¶ 44-47. As set forth below, we
modify the initial decision to apply the proper burdens of proof and to find that
the appellant proved that disability discrimination and reprisal for engaging in
EEO activity were a but-for cause of the agency’s decision to place her on an
opportunity to demonstrate acceptable performance plan. Because the facts
surrounding the appellant’s claims of status-based disability discrimination and
EEO reprisal are intertwined we consider them together, as the administrative
judge did.
The U.S. Supreme Court has explained that “a but-for test directs us to
change one thing at a time and see if the outcome changes. If it does, we have
found a but-for cause.” Bostock v. Clayton County, Georgia , 140 S. Ct. 1731,
1739, (2020). Although the administrative judge did not have the benefit of
Pridgen at the time she issued the initial decision in this matter, she nonetheless
made the relevant fact findings. First, the administrative judge made
demeanor-based credibility findings that: (1) the appellant’s supervisor’s
testimony that the appellant’s claimed disabilities and protected EEO activities
played no role in the decision to issue the NODAP and propose the appellant’s12
removal was not credible; and (2) that the supervisor’s demeanor was “one of
disdain towards the appellant and admitted disbelief in the health problems
caused by the appellant’s disabilities.”7 ID at 6. The administrative judge further
found that the appellant’s supervisor, who also suffered from migraines but to a
less severe degree, allowed her own experience with migraines to prejudice her
view of the appellant’s situation and her decisions related to the appellant’s
requests for reasonable accommodation. ID at 6-7. Ultimately, the
administrative judge found that the evidence of the appellant’s supervisor’s
discriminatory and retaliatory intent was far too overwhelming to justify any
conclusion that the agency would have placed the appellant on an opportunity to
demonstrate acceptable performance plan absent such discriminatory and
retaliatory motives. ID at 29. Such findings support a conclusion of but-for
causation. See Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 18
(holding that, if an appellant proves motivating factor and the agency does not
prove that it would have taken the same action in the absence of discrimination,
the appellant has established but-for causation and will be eligible for full relief
under the statute).
On review, the agency asserts that the appellant’s medical documentation
did not mandate that the appellant telework 2 days per week and that the appellant
was not entitled to an accommodation of her choice. PFR File, Tab 9 at 10-11.
However, such arguments fail to establish error in the administrative judge’s
findings that other similarly situated non-disabled employees were permitted to
telework 2 days per week. ID at 24-25. Additionally, the agency argues that the
appellant was offered the option to telework 2 days per week during the 30-day
opportunity to demonstrate acceptable performance period beginning on June 24,
2019, but the appellant declined. PFR File, Tab 9 at 13. Contrary to the agency’s
7 The appellant’s supervisor’s view of the appellant’s medical condition is also reflected
in a June 27, 2018 email to an agency employee relations employee in which the
supervisor wrote that she believed that the appellant would use her migraines “as an
excuse.” IAF, Tab 17 at 8. 13
argument, we find that this supports the administrative judge’s findings. The
appellant’s supervisor testified that when she presented the appellant with the
NODAP she said to her, “hey if a second day of telework would help you be
successful, if you feel like it would, then you can have it during the period of the
NODAP.” HT (October 1, 2020) at 90 (testimony of the appellant’s supervisor).
However, for close to 2 years prior to that, beginning in July 2017, the appellant
had repeatedly asked for, but was denied, a second telework day as a reasonable
accommodation. It is unclear why during the opportunity to demonstrate
acceptable performance the appellant could have been permitted to telework
2 days a week, when for 2 years prior such requests were repeatedly denied.
Thus, we agree with the administrative judge’s finding the appellant’s
supervisor’s assertion that the appellant could not effectively telework 2 days a
week due to performance issues is not worthy of belief. We further agree with
the administrative judge that the appellant’s supervisor’s disparate treatment of
the appellant regarding telework as well as her comments and admitted lack of
belief regarding the effect of the appellant’s migraines compel a finding that the
appellant’s disability was a but -for cause of the appellant’s placement on the
opportunity to demonstrate acceptable performance and removal. ID at 6,
17, 24-27.
The appellant proved that the agency denied her a reasonable accommodation.
The administrative judge did not analyze the appellant’s claim of denial of
reasonable accommodation as a separate affirmative defense, but rather as
evidence of disparate treatment in support of the appellant’s status-based
disability discrimination claim. ID at 25. Nonetheless, in evaluating the
appellant’s claim, the administrative judge found that the agency denied the
appellant a reasonable accommodation by not allowing her to telework during
migraine recovery periods. ID at 27. Because the appellant raised a separate
claim of disability discrimination based on a denial of reasonable
accommodation, IAF, Tab 9 at 4-5, Tab 27 at 5, as set forth below, we modify the14
initial decision to address her claim under the proper legal standards. See
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 27 (acknowledging disability
discrimination claims based on disparate treatment and denial of reasonable
accommodation as distinct claims).
An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. 29 C.F.R. § 1630.9(a); Miller v. Department
of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). Reasonable accommodation includes
modifications to the manner in which a position is customarily performed in order
to enable a qualified individual with a disability to perform the essential job
functions. Miller, 121 M.S.P.R. 189, ¶ 13; Equal Employment Opportunity
Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, Notice No. 915.002
(Oct. 17, 2002), available at http://www.eeoc.gov/policy/
docs/accommodation.html. In order to establish disability discrimination based
on a failure to accommodate, an employee must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a
qualified individual with a disability, as defined by 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Miller,
121 M.S.P.R. 189, ¶ 13.
Here, as discussed, the appellant is disabled as she suffers from migraines
which substantially limit her major life activities of concentrating and working.
ID at 15-16. To the extent the administrative judge did not address whether the
appellant was a qualified individual with a disability, we explicitly find that she
was qualified because a required element of a disability discrimination claim is
that an individual be “qualified.” Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28 (noting that both a claim of disability discrimination based
on an individual’s status as disabled and a claim based on an agency’s failure to15
reasonably accommodate that disability require that the individual be
“qualified”). The record reflects that the appellant could perform the essential
functions of her position with or without an accommodation of an additional
telework/flexible schedule to aid in the prevention of and to accommodate her
recovery from migraines. The agency has not shown that, at the time it placed the
appellant on an opportunity to demonstrate acceptable performance plan, the
appellant’s performance was unacceptable or that she was not meeting its
performance standards. Moreover, the appellant requested a reasonable
accommodation that would have effectively allowed her to perform the essential
functions of her job. Her doctor recommended telework to aid in concentration
and prevent migraines. IAF, Tab 9 at 14, 16, Tab 27 at 26. The appellant also
testified that telework was useful in preventing migraines because she could
control the environment and it aided in her concentration and focus. HT
(October 14, 2020) at 34 (testimony of the appellant). There is no dispute that the
essential functions of the appellant’s job could have been performed via telework
2 days a week and that the appellant’s similarly situated non-disabled colleagues
did so. ID at 25; IAF, Tab 27 at 12.
We find that the agency has not shown that it would have been an undue
hardship to grant the appellant’s request. To the contrary, the agency offered the
appellant the option to telework 2 days a week during the opportunity to
demonstrate acceptable performance, purportedly to aid her performance. HT
(October 1, 2020) at 90 (testimony of the appellant’s supervisor). Yet, prior to
that, the agency repeatedly denied the appellant’s requests for reasonable
accommodation by providing shifting explanations. As the administrative judge
summarized, when the appellant initially provided a medical note in August 2017
seeking telework, her supervisor expressed no problem with its substance, but
only with its date, and requested a more recent medical note. ID at 27; IAF,
Tab 27 at 24. After the appellant provided an updated medical note, it was not
until more than a year later that the appellant’s supervisor described the16
appellant’s medical documentation as insufficient. ID at 27; IAF, Tab 9 at 13,
Tab 26 at 12, Tab 27 at 173. Moreover, the appellant’s supervisor also failed to
treat the appellant’s requests to telework as requests for reasonable
accommodation, even though they were supported by medical notes, and, as
discussed previously, denied such requests based on improper considerations such
as agency policy, management discretion, and alleged performance issues. IAF,
Tab 26 at 12. It is clear from the appellant’s supervisor’s responses that she was
unwilling to discuss the appellant’s request in good faith or engage in the
interactive process due to the appellant’s alleged performance problems.
However, an employer cannot refuse to discuss a request for accommodation or
fail to provide a reasonable accommodation as a punishment for performance
problems. See EEOC Guidance: Applying Performance and Conduct Standards to
Employees with Disabilities, at III.A.6 (Sept. 3, 2008),
https://www.eeoc.gov/laws/guidance/applying-performance-and-conduct-
standards-employees-disabilities#perf (last visited Feb. 22, 2024).
In addition to denying the appellant’s requests to telework, the appellant’s
supervisor also issued her a letter of caution after the appellant informed her that
she planned to follow her doctor’s note and telework during a migraine recovery
period. IAF, Tab 17 at 13-15. The letter of caution cites various agency policies
that afford supervisors discretion regarding telework. Id. at 14. However, an
agency is not permitted to rely on its policies to deny an accommodation. Rather,
modifying workplace policies, including work schedules and telework, is a form
of reasonable accommodation. EEOC Guidance, Work at Home/Telework as a
Reasonable Accommodation, Questions 1, 4, (Feb. 3, 2003), available at
http://www.eeoc.gov/facts/telework.html; EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, Notice No. 915.002, Question 34 (Oct. 17, 2002), available at
http://www.eeoc.gov/policy/docs/accommodation.html . 17
On review, the agency asserts that any conclusion that the appellant’s
medical documentation mandated 2 telework days a week is both a mistake of fact
and a mistake of law because an employee is not entitled to an accommodation of
her choice. PFR File, Tab 9 at 11. While we acknowledge that the appellant was
not entitled to an accommodation of her choice, she was asking to telework as a
reasonable accommodation and if the agency did not want to grant the appellant’s
request for telework, it was obligated to engage in the interactive process to see
whether there was another effective accommodation. Appendix to 29 C.F.R. part
1630, § 1630.9 (stating that if more than one accommodation will enable an
individual to perform the essential functions of her position, the preference of the
individual with the disability should be given primary consideration, but the
employer providing the accommodation has the ultimate discretion to choose
between effective accommodations). Instead of engaging in the interactive
process or granting the appellant’s request for telework, the appellant’s
supervisor improperly forced her to use leave, writing “I would never deny your
use of sick leave for the recovery of a migraine” and “if you are unable to come
into the office to perform the duties of your position, you should request sick
leave.” IAF, Tab 17 at 13. We agree with the administrative judge that, to the
extent the appellant’s supervisor believed that she had accommodated the
appellant by allowing her to take sick leave, forcing an employee to take leave is
not an appropriate accommodation when there is an effective reasonable
accommodation that enables the individual to continue working. See, e.g., Annie
F. v. Department of Homeland Security , EEOC Appeal No. 2022001221, 2023
WL 3040349, at *9 (Apr. 13, 2023); Denese G. v. Department of the Treasury ,
EEOC Appeal No. 0120141118, 2016 WL 7742966, at *16 (Dec. 29, 2016).8
The agency also asserts that the appellant failed to engage in the interactive
process and provide additional medical documentation in response to its
8 The Board will defer to the Equal Employment Opportunity Commission on matters of
substantive discrimination law. Pridgen, 2022 MSPB 31, ¶ 40; Southerland v.
Department of Defense , 122 M.S.P.R. 51, ¶ 12 (2014).18
September 2018 letter. PFR File, Tab 9 at 12. We find this argument
unpersuasive because, as discussed above, similarly situated non-disabled
employees were allowed to telework without providing any medical
documentation and, the agency provided shifting explanations for denying the
appellant telework. In addition, the agency delayed for over 1 year before
requesting additional medical documentation, and the agency offered the
appellant 2 days of telework during the opportunity to demonstrate acceptable
performance without requiring any medical documentation. Accordingly, we find
that the agency did not timely engage in the interactive process in good faith and
its request for additional medical documentation amounted to an obstacle that was
not required of other similarly situated non-disabled employees. See Hartzler v.
Mayorkas, No. 20-cv-3802, 2022 WL 15419995, at *12 (D.D.C. Oct. 27, 2022)
(acknowledging that obstruction or delay of the interactive process or failure to
communicate is suggestive of bad faith); see also Cravens v. Blue Cross and Blue
Shield of Kansas City , 214 F.3d 1011, 1021-22 (8th Cir. 2000) (reversing the
district court’s grant of summary judgment because an employer may not have
participated in good faith in attempting to find an accommodation).9 Moreover,
we find that the agency’s failure to engage in the interactive process resulted in
the denial of an effective accommodation. See Humphrey v. Memorial Hospitals
Association, 239 F.3d 1128, 1137-39 (9th Cir. 2001) (finding an employer liable
for denial of reasonable accommodation when it failed to engage in the
interactive process which cause the denial of an effective accommodation).
In sum, we modify the initial decision to reverse the appellant’s removal on
the basis that the agency failed to show that the appellant’s pre-NODAP
performance was unacceptable because it did not show that, prior to the NODAP,
it provided content to the appellant’s invalid performance standards. We further
9 Decisions of courts other than the U.S. Court of Appeals for the Federal Circuit,
although not binding on the Board outside the context of certain whistleblower reprisal
cases, may be followed if, as here, the Board finds the reasoning persuasive. See
Mynard v. Office of Personnel Management , 108 M.S.P.R. 58, ¶ 14 (2008).19
modify the initial decision to apply the burdens set forth in Pridgen, 2022 MSPB
31, and find that the appellant proved that disability discrimination and retaliation
were a but-for cause of the appellant’s placement on the opportunity to
demonstrate acceptable performance plan and her removal. Finally, we modify
the initial decision to find that the appellant proved that the agency denied her a
reasonable accommodation.
ORDER
We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective November 9, 2019. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the 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 petition20
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at21
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.22
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file23
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 24
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 25
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.26
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. | Fernandez_Laura_D_DE-0432-20-0096-I-3__Final_Order.pdf | 2024-02-22 | LAURA D. FERNANDEZ v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-0432-20-0096-I-3, February 22, 2024 | DE-0432-20-0096-I-3 | NP |
2,278 | https://www.mspb.gov/decisions/nonprecedential/Smith_Daniel_P_CB-7121-17-0003-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL P. SMITH,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
CB-7121-17-0003-V-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
ushab Sanghvi , Washington, D.C., for the appellant.
Kathryn B. Allen and Jonathan Eugene O'Connell , Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a request for review of an arbitration decision that
sustained the agency’s decision to remove the appellant. For the reasons set forth
below, we AFFIRM the arbitrator’s decision AS MODIFIED by this order to find
that the appellant did not prove that the agency violated his due process rights or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
committed harmful procedural error in effecting his removal and that he did not
show that he was a qualified individual with a disability.
BACKGROUND
The appellant formerly served as a Civil Engineer with the agency’s
Division of Dam Safety, Office of Energy Projects. Request for Review (RFR)
File, Tab 4 at 504. In August 2011, the appellant underwent surgery to address a
medical condition and returned to work shortly thereafter. Id. at 282-83
(testimony of the appellant). In January 2013, the appellant’s first-level
supervisor counseled him on performance issues, and in May 2013, the supervisor
placed the appellant on a performance improvement plan. Id. at 522-29. In June
2013, the appellant requested information about the reasonable accommodation
process from the agency’s disability program manager, who provided him with
the agency’s reasonable accommodation policy and information about equal
employment opportunity counseling. RFR File, Tab 4 at 153-54 (testimony of the
disability program manager), Tab 5 at 45-46. In July 2013, the appellant
provided his first- and second-level supervisors with medical evaluations that
diagnosed him with a condition related to his prior surgery that affected his
cognitive functioning. RFR File, Tab 4 at 133-34 (testimony of the proposing
official), 284-86 (testimony of the appellant), Tab 5 at 20-35. In early August
2013, the appellant requested a reasonable accommodation and assistance with
the reasonable accommodation process from the disability program manager, and
he also requested leave pursuant to the Family and Medical Leave Act (FMLA)
from his first-level supervisor. RFR File, Tab 4 at 516-21, Tab 5 at 47-48.
On August 23, 2013, the appellant’s first-level supervisor issued him a
notice proposing his removal for his “medical inability to perform the duties of
any [agency] position for an indefinite period.” RFR File, Tab 4 at 480-82. The
notice provided the appellant with an opportunity to respond and placed him in an
administrative leave status “until further notice.” Id. at 481. On September 17,
3
2013, the appellant, through his representative, provided a written response to the
proposed removal in which he contended that the notice of proposed removal did
not accurately describe his performance or ability to perform in his position and
requested reasonable accommodation in the form of leave to engage in cognitive
remediation therapy, reassignment, or other accommodations as recommended in
his medical evaluations that would allow him to continue working. Id. at 483-91.
By email dated November 18, 2013, the agency’s disability program
manager asked the appellant to provide her with additional medical
documentation regarding his request for accommodation. RFR File, Tab 5
at 51-53. By letter dated December 6, 2013, the appellant’s representative
provided the disability program manager with a narrative response and
documentation of the appellant’s treatment. Id. at 54-98. By email dated
January 13, 2014, the agency’s counsel asked that the appellant provide
additional medical documentation. Id. at 99. By letter dated January 27, 2014,
the appellant’s representative provided to the agency’s counsel and disability
program manager medical documentation from the appellant’s cognitive therapist
and stated that she also was awaiting a report from the appellant’s neurologist and
neuropsychologist. Id. at 100-03. Two days later, the agency’s counsel notified
the appellant’s representative that the agency wished to see the additional report.
Id. at 104. By letter dated February 10, 2014, the appellant’s representative
provided the agency’s counsel and program disability manager with medical
documentation from the appellant’s neurologist and an updated request for
accommodation in the form of 6 months of additional leave. Id. at 105-06.
On March 10, 2014, the appellant’s second-level supervisor issued a
decision sustaining the proposed removal. RFR File, Tab 4 at 492-96. In the
decision, the deciding official described the notice of proposed removal and the
appellant’s response, as well as the correspondence between the agency and the
appellant from November 18, 2013, to February 10, 2014. Id. at 492-94. The
deciding official denied the appellant’s request for reasonable accommodation,
4
concluding that it constituted an undue burden on the agency, and he determined
that the appellant could not perform the duties of his or any other agency
position. Id. at 494-95.
Also in March 2014, the union grieved the appellant’s removal on his
behalf. Id. at 508-14. The union requested a response to the grievance from the
agency on several occasions and, receiving no agency response, invoked
arbitration in December 2015. RFR File, Tab 5 at 14-19. The arbitrator took
testimony and entered exhibits into the record during the hearing and accepted
closing briefs from the union and the agency. RFR File, Tab 4 at 16. On
October 2, 2016, the arbitrator issued a decision finding that the union’s
invocation of arbitration was within the time limits set forth in the collective
bargaining agreement (CBA); the removal action was for just cause and in accord
with all applicable laws, regulations, and the CBA; and the agency did not violate
the Rehabilitation Act or the FMLA. Id. at 16-64.
The appellant has timely filed a request for review with the Board of the
arbitrator’s decision, and the agency has responded in opposition to the request.
RFR File, Tabs 4, 14. On review, the appellant argues that the arbitrator’s
decision should be reversed or, in the alternative, that the case be remanded for
further adjudication on the grounds that: (1) the arbitrator failed to properly
consider the appellant’s affirmative defense of disability discrimination; and
(2) the arbitrator erred in finding that the agency’s removal of the appellant was
for just cause because the agency failed to prove its charge by preponderant
evidence, and the arbitrator failed to consider the appellant’s affirmative defenses
regarding violations of due process, agency policy, and the CBA. RFR File,
Tab 4 at 5-14. As set forth below, we hold that the arbitrator did not err in
finding that the appellant’s removal was for just cause, but he failed to make a
determination regarding the alleged due process violation and harmful procedural
errors; however, we have reviewed these claims, and we find that the agency did
not violate the appellant’s due process rights or commit harmful procedural error.
5
We also conclude that the arbitrator did not employ the proper analytical
framework for his evaluation of the appellant’s affirmative defenses of disability
discrimination, but the appellant has not met his burden to show disability
discrimination.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has
been issued.2 Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 4
(2013). Each condition is satisfied in this case. The appellant’s removal is
within the Board’s jurisdiction. 5 U.S.C. §§ 7512(1), 7513(d). The appellant
alleged in his grievance and during arbitration that he was subjected to
discrimination on the basis of disability when the agency failed to accommodate
him prior to his removal. RFR File, Tab 4 at 9-11, 328-37, 508-14. The
arbitrator issued an October 2, 2016 final decision regarding the appellant’s
grievance of his removal. Id. at 16-64. Thus, we find that the Board has
jurisdiction over the request for review. See Sadiq, 119 M.S.P.R. 450, ¶ 4.
The Board’s review of an arbitrator’s award is limited; such awards are
entitled to a greater degree of deference than initial decisions issued by the
Board’s administrative judges. Id., ¶ 5. The Board will modify or set aside such
an award only when the arbitrator has erred as a matter of law in interpreting a
civil service law, rule, or regulation. Id. Even if the Board disagrees with an
arbitrator’s decision, absent legal error, the Board cannot substitute its
2 If the appellant did not raise a discrimination claim in connection with the underlying
action with the arbitrator, he may raise a discrimination claim with the Board for the
first time in a request for review only if such allegations could not have been raised
during the negotiated grievance procedure. Jones v. Department of Energy ,
120 M.S.P.R. 480, ¶ 8 (2013), aff’d sub nom. Jones v. Merit Systems Protection Board ,
589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(c).
6
conclusions for those of the arbitrator. Id. Thus, the arbitrator’s factual
determinations are entitled to deference unless the arbitrator erred in his legal
analysis, for example, by misallocating the burdens of proof or employing the
wrong analytical framework. Id. Nevertheless, the Board defers to the
arbitrator’s findings and conclusions only if the arbitrator makes specific findings
on the issues in question. Id. Further, the Board may make its own findings
when the arbitrator failed to cite any legal standard or employ any analytical
framework for his evaluation of the evidence. Id.
The arbitrator did not err in finding that the appellant’s removal was for just
cause.
On review, the appellant argues that the arbitrator erred in finding that his
removal was for just cause because the agency did not prove by preponderant
evidence the charge of medical inability, as the agency failed to show that the
appellant could not meet the essential functions of his position because of his
medical restrictions. RFR File, Tab 4 at 12-14. The appellant further contends
that the arbitrator’s findings are not entitled to deference because the arbitrator
failed to set forth a legal standard or analytical framework in his decision to
sustain the agency’s charge and improperly shifted the burden to the appellant to
prove that he could perform the essential functions of his position . Id. In his
analysis of whether the agency proved its charge, the arbitrator did not set forth
any legal standard on which he based his conclusions, and he did not distinguish
between his analysis of the agency’s charge and the appellant’s affirmative
defense of disability discrimination. Id. at 58-64. However, our examination of
the arbitrator’s analysis does not support the appellant’s assertion that the
arbitrator erroneously shifted the agency’s burden to prove the charge to the
appellant, nor do we find that the arbitrator otherwise applied an incorrect
standard of law in adjudicating the charge. Thus, the arbitrator’s findings are
entitled to deference.
7
An agency may remove an employee if he is unable, because of a medical
condition, to perform the duties of his position. Bullock v. Department of the Air
Force, 88 M.S.P.R. 531, ¶ 7 (2001). When, as here, the appellant does not
occupy a position with medical standards or physical requirements or that is
subject to medical evaluation programs, to prove that he is unable to perform the
duties of his position, the agency must establish a nexus between his medical
condition and observed deficiencies in his performance or conduct, or a high
probability, given the nature of the work involved, that his condition may result
in injury to himself or others.3 Fox v. Department of the Army , 120 M.S.P.R. 529,
¶ 25 (2014). In other words, the agency must establish that the appellant’s
medical condition prevents him from being able to safely and efficiently perform
the core duties of his position. Id. In determining whether the agency has met its
burden, the Board will consider whether a reasonable accommodation exists that
would enable the appellant to safely and efficiently perform those core duties. Id.
However, for the limited purposes of proving the charge, the agency is not
required to show that it was unable to reasonably accommodate the appellant by
assigning him to a vacant position for which he was qualified; whether it could do
so goes to the affirmative defense of disability discrimination and/or the
reasonableness of the penalty. Id.
The arbitrator made detailed factual findings regarding the appellant’s
ability to perform the core duties of his position and concluded that the
appellant’s medical condition “adversely impacted his ability to perform the
complex duties [that were] required to perform in his position as a civil engineer
for the Agency.” The arbitrator determined that the agency’s decision to remove
3 The March 10, 2014 agency decision removing the appellant stated that his position
“requires the ability to meet certain physical standards”; however, there is no evidence
that he occupied a position with medical standards or physical requirements or was
subject to medical evaluation programs of the kind contemplated in Fox. RFR File,
Tab 4 at 495; see Fox, 120 M.S.P.R. 529, ¶¶ 24-25 (articulating a different standard to
remove an employee for physical inability to perform when the employee is disqualified
from a position with medical standards or physical requirements, or that is subject to
medical evaluation programs).
8
the appellant was supported by documentation from his medical providers that he
“was not able physically to perform the duties of his position and would not be in
a position to do so for at least another four months.” RFR File, Tab 4 at 58-64.
We find no legal error in the arbitrator’s findings. Although the appellant alleged
that the agency did not articulate the essential duties of his position, and his
position description is not a part of the record, he did not dispute the agency’s
description of his primary duties, set forth in the March 2014 decision to remove
him, as completing dam inspections, follow-up reports and letters regarding the
inspections, and follow up to responses from project owners, which required
competent cognitive functioning. Id. at 321-24, 494-95. The appellant argued
before the arbitrator that his performance deficiencies were not solely related to
his medical condition and that he could be accommodated in his position, but the
medical documentation the appellant submitted during the removal proceedings
reflected that his medical condition significantly affected his cognitive
functioning and that his difficulties with timely and accurately completing
inspection reports stemmed from his cognitive condition. RFR File, Tab 5
at 20-35, 106.
Despite the appellant’s contention that he could work with reasonable
accommodation, at the time of his removal, he had been on paid administrative
leave for approximately 6 months while the agency worked with his attorney to
determine whether a reasonable accommodation was possible. RFR File, Tab 4
at 494. Moreover, the appellant’s neurologist opined in his February 19, 2014
letter, which the appellant submitted to the agency, that the appellant could not
work even with accommodation, and he could not ascertain whether the appellant
would ever be able to return to work until the appellant had completed at least
4 additional months of therapy and a follow-up neuropsychological evaluation.
RFR File, Tab 5 at 106. The appellant argued that his neurologist did not review
all of the pertinent information in reaching this conclusion, but he acknowledged
that the conclusion was based on a project position description, job performance
9
evaluation, and reports he submitted to the neurologist. RFR File, Tab 4
at 292-94 (testimony of the appellant). At no time has the appellant provided any
updated documentation that would call into question the agency’s determination
that he could not return to work, with or without accommodation.4 Id. at 494-95.
When an appellant is unavailable for duty due to his incapacitation and his
unavailability has no foreseeable end, then removal of the employee is warranted.
Edwards v. Department of Transportation , 109 M.S.P.R. 579, ¶ 17 (2008).
Therefore, we conclude that the arbitrator properly made findings that the agency
proved its charge.
We also find no legal error in the arbitrator’s finding that the appellant’s
absence constituted a burden on his office’s operations. RFR File, Tab 4
at 62-63. Generally, removal for physical inability to perform the essential
functions of a position promotes the efficiency of the service. D’Leo v.
Department of the Navy , 53 M.S.P.R. 44, 51 (1992). The medical documentation
the appellant provided reflects that, at the time of his removal, his return to work
was not assured; thus, there was no foreseeable end to his incapacity. RFR File,
Tab 5 at 106. He requested an additional 6 months of leave to undergo the
therapy recommended by his medical providers. Id. at 105. The deciding official
explained in his decision to remove the appellant that it would be an undue
hardship for the agency to grant the appellant 6 more months of leave in addition
4 At the hearing, the appellant testified that he was employed and performing some of
same duties as that of his former position as a civil engineer. RFR File, Tab 4 at 290-92
(testimony of the appellant). The Board has found that, if during the pendency of the
Board appeal of a removal for medical inability to perform, an appellant presents new
medical evidence showing that he has recovered such that he now can perform the
essential duties of his position, the removal action will be reversed. See, e.g.,
Sanders v. Department of Homeland Security , 122 M.S.P.R. 144, ¶ 9, 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. However, to invoke this principle,
the appellant must present evidence that clearly and unambiguously demonstrates that
he has recovered. Id. To the extent the appellant attempted to show he has recovered,
we find the appellant’s assertions, without supporting medical documentation, do not
meet this standard.
10
to the 6 months of administrative leave it already had provided to him, as the
agency would be unable to hire an engineer to perform his duties during his
absence, and up to three engineers would be required to take on his workload.
RFR File, Tab 4 at 494. Further, the deciding official observed that insufficient
travel funds and staffing would negatively impact the agency’s ability to ensure
that the dams it regulated operated safely and were in compliance with applicable
regulations. Id. Thus, we find no legal error in the arbitrator’s finding that the
appellant’s absence had an adverse impact on the agency, which supports a
conclusion that the agency’s action was taken for such cause as will promote the
efficiency of the service. See Clemens v. Department of the Army , 120 M.S.P.R.
616, ¶ 18 (2014) (finding that the appellant’s removal was taken for such cause as
will promote the efficiency of the service when the record reflected that there was
no foreseeable end to his incapacity, and his medical documentation did not
support his ability to return to duty).
Finally, we find no legal error in the arbitrator’s conclusion that the
agency’s penalty did not exceed the “tolerable limits of reasonableness.” RFR
File, Tab 4 at 62-63; see Brown v. Department of the Interior , 121 M.S.P.R. 205,
¶ 18 (2014) (holding that the appellant’s removal was within the tolerable limits
of reasonableness when her condition required long-term recovery and
rehabilitation, without a foreseeable end to her incapacity), overruled on other
grounds by Haas v. Department of Homeland Security , 2022 MSPB 36.
Accordingly, we affirm the arbitrator’s decision as to his finding that the
appellant’s removal was appropriate.
The arbitrator failed to make a determination regarding the appellant’s
affirmative defense of a due process violation, but the agency did not violate the
appellant’s due process rights.
On review, the appellant argues that the arbitrator failed to address the
appellant’s arguments that establish that the agency committed due process
violations, warranting reversal. RFR File, Tab 4 at 13 -14. The appellant argues
11
that the agency’s decision relied on aggravating factors, including medical
documents, such as the February 10, 2014 letter from the appellant’s neurologist,
and conclusions drawn from those documents, that were not included in the notice
of proposed removal and to which the appellant was not afforded an opportunity
to respond. Id. at 13, 324-27. He also argues that an incident during one of his
dam inspections was considered in issuing the proposal to remove him, even
though it was not mentioned in the proposal or the decision to remove him. Id.
The appellant contends that the arbitrator’s findings are not entitled to deference
because he failed entirely to address the alleged violations. Id. at 12-14.
Our review of the arbitrator’s decision reflects that the arbitrator failed to
make determinations regarding the appellant’s claims of due process violations
and harmful procedural error. In finding that the appellant could not perform the
duties of his position, the arbitrator did not set out a legal standard or analytical
framework to address the violations raised below by the union on the appellant’s
behalf and did not make specific findings on the alleged violations, merely stating
in his decision that “[t]he Arbitrator has taken into account all other arguments
raised by the Union.” Id. at 57-64. Absent a legal standard, analytical
framework, or specific findings regarding the due process violation claims raised
by the union, the Board has no basis upon which to defer to the arbitrator on these
issues. See, e.g., Hollingsworth v. Department of Commerce , 115 M.S.P.R. 636,
¶ 8 (2011) (finding that an arbitrator’s decision denying the appellant’s requests
for attorneys’ fees and compensatory damages was not entitled to deference when
the arbitrator did not make specific findings, cite any legal standard, or employ
any analytical framework in denying the requests).
Based on the record before us, however, we find that the agency provided
the appellant with the minimum due process required to effect his removal.
When, as here, a public employee has a property interest in his continued
employment, the Government cannot deprive him of that interest without due
process. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 538 (1985);
12
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1374-75 (Fed.
Cir. 1999). The essential requirements of constitutional due process for a tenured
public employee are notice of the charges against him, with an 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.
Loudermill, 470 U.S. at 546-48. An employee’s constitutional due process
guarantee of notice (both of the charges and of the employer’s evidence) and the
opportunity to respond are undermined when a deciding official obtains new and
material information through ex parte communications. Stone, 179 F.3d at 1376.
When an employee has notice only of certain charges or portions of the evidence
and the deciding official considers new and material information as a basis for his
decisions on the merits of a proposed charge or the penalty to be imposed,
procedural due process guarantees are not met because the employee is “no longer
on notice of the reasons for dismissal and/or the evidence relied upon by the
agency.” Id.
“[N]ot every ex parte communication is a procedural defect so substantial
and so likely to cause prejudice that it undermines the due process guarantee and
entitles the claimant to an entirely new administrative proceeding”; rather,
“[o]nly ex parte communications that introduce new and material information to
the deciding official will violate the due process guarantee of notice.” Id.
at 1376-77. The Board will consider the following factors, among others, to
determine whether an ex parte contact is constitutionally impermissible:
(1) “whether the ex parte communication merely introduces ‘cumulative’
information or new information”; (2) “whether the employee knew of the error
and had a chance to respond to it”; and (3) “whether the ex parte communications
were of the type likely to result in undue pressure upon the deciding official to
rule in a particular manner.” Id. at 1377. The ultimate inquiry is whether “the ex
parte communication is so substantial and so likely to cause prejudice that no
employee can fairly be required to be subjected to a deprivation of property under
13
such circumstances.” Id. If such a due process violation has occurred, it is not
subject to the harmful error test; rather, the former employee is entitled to a new
constitutionally correct removal procedure. Id.
Here, the deciding official relied in his decision to remove the appellant
upon correspondence between the agency’s counsel, the disability program
manager, and the appellant’s representative that occurred after the notice of
proposed removal was issued and the appellant submitted his reply. RFR File,
Tab 4 at 480-96. In his decision, the deciding official described: (1) the
November 18, 2013 email correspondence from the agency’s disability program
manager to the appellant; (2) the December 6, 2013 letter from the appellant’s
representative to the disability program manager that enclosed documentation of
the appellant’s treatment; (3) the January 13, 2014 email from the agency’s
counsel to the appellant’s representative; (4) the January 27, 2014 letter from the
appellant’s representative to the agency’s counsel and the disability program
manager that enclosed medical documentation; (5) the January 29, 2014 email
from the agency’s counsel to the appellant’s representative; and (6) the
February 10, 2014 letter from the appellant’s representative to the agency’s
counsel and the disability program manager that enclosed medical documentation.
Id. at 492-94. None of the correspondence between the agency and the appellant
from November 18, 2013, to February 10, 2014, included the deciding official;
accordingly, we conclude that the content of the correspondence was
communicated ex parte to the deciding official. RFR File, Tab 5 at 51-106; see
Mathis v. Department of State , 122 M.S.P.R. 507, ¶ 12 (2015) (finding that the
deciding official initiated ex parte communications with a human resources
representative to determine whether the appellant’s alleged mitigating factors
were supported by the facts).5
5 The record is not clear as to whether the agency’s counsel was acting as an agent of
the deciding official during her correspondence with the appellant’s representative, in
which case the communication of the content of the correspondence to the deciding
official may not have been ex parte.
14
However, the appellant’s argument fails because he cannot show that,
regarding the second Stone factor, he was unaware of the likelihood of such a
communication when he submitted the substance of the ex parte communication
to the agency in furtherance of his assertion that he was eligible for a reasonable
accommodation. In the appellant’s reply to the agency’s notice of proposed
removal, he asserted that removal was not appropriate and that he was eligible for
reasonable accommodation that would enable him to perform the duties of his
position. RFR File, Tab 4 at 484-91. Although the appellant asserts on review
that the agency did not notify him that it intended to consider the post-reply
information he submitted to it in support of his request for reasonable
accommodation in the removal action, the appellant’s extensive discussion of his
request for reasonable accommodation in his reply reflected that he was aware
that such a request could be considered by the deciding official. See Mathis,
122 M.S.P.R. 507, ¶ 9 (finding that a deciding official does not violate an
employee’s due process rights by considering issues raised by the employee in
response to a proposed adverse action and then rejecting those arguments in
reaching his decision); Wilson v. Department of Homeland Security , 120 M.S.P.R.
686, ¶¶ 10-11 (2014) (holding that when the appellant raised and addressed
uncharged misconduct in her written and oral replies, the deciding official’s
consideration of that information did not violate her right to due process), aff’d,
595 F. App’x 995 (Fed. Cir. 2015). Moreover, each time the agency requested
post-reply medical information from the appellant, he had the opportunity to
submit information in furtherance of his assertion that he was eligible for a
reasonable accommodation instead of removal for medical inability to perform his
duties. An appellant is not entitled to know the particular weight that the
deciding official will attach to his arguments raised in response to a proposed
adverse action in advance of the final decision. Id., ¶ 12; see Mathis,
122 M.S.P.R. 507, ¶ 9. By submitting documentation that indicated he was
unable to perform the core duties of his position with or without accommodation,
15
the appellant assumed the risk that the deciding official would reach conclusions
contrary to the appellant’s interests as to whether the charge of medical inability
could be sustained. For these reasons, we find that the appellant received a full
opportunity to respond to the charges against him and was not deprived of due
process.
The appellant also argued that the proposing official considered
information regarding an incident during one of the appellant’s dam inspections,
but this information was not included in the notice of proposed removal or
subsequent decision. RFR File, Tab 4 at 13, 324-27. At the hearing, the
proposing official testified that he received feedback from a facility the appellant
had inspected that expressed concern that the appellant did not seem well during a
past inspection. Id. at 148-49 (testimony of the proposing official). This
information did not constitute an ex parte communication because there is no
evidence that this information was communicated to the deciding official or that
the deciding official considered the information in his decision. See Stone,
179 F.3d at 1376.
The arbitrator did not make a determination regarding the appellant’s affirmative
defense of harmful procedural error, but the agency did not commit harmful
procedural error in effecting the appellant’s removal.
On review, the appellant argues that the agency’s failure to provide him
with an opportunity to respond to the denial of his accommodation request
violated agency policy and the CBA. RFR File, Tab 4 at 13-14. Additionally,
despite finding that the post-reply ex parte communications did not constitute a
due process violation, we must determine whether the communications
constituted harmful error. Ward v. U.S. Postal Service , 634 F.3d 1274, 1281-82
(Fed. Cir. 2011). Because the arbitrator did not address the appellant’s
affirmative defense of harmful procedural error, nor whether the post -reply ex
parte communication constituted harmful error, the Board cannot defer to the
arbitrator on this issue. See Hollingsworth , 115 M.S.P.R. 636, ¶ 8. As set forth
16
below, we find that neither the agency’s failure to provide the appellant with an
opportunity to respond to the denial of his accommodation, nor the ex parte
communication, constituted harmful procedural error.
To prove harmful procedural error, the appellant must show both that the
agency committed procedural error and that the error was harmful. Rogers v.
Department of Defense , 122 M.S.P.R. 671, ¶ 7 (2015). Harmful error cannot be
presumed; an agency error is harmful only where the record shows that the error
was likely to have caused the agency to reach a conclusion different from the one
it would have reached in the absence or cure of the error. Id. The appellant bears
the burden of proving by preponderant evidence that the agency committed
harmful error in reaching its decision. 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1).
The appellant alleged that agency policy and the CBA required an
employee denied an accommodation to be provided a reason for the denial and the
ability to appeal it. RFR File, Tab 4 at 13-14, 327, 338-39. The appellant does
not cite to the CBA in support of this proposition, nor do we find that the CBA
contains such a policy. Id. at 370-477. The agency’s reasonable accommodation
policy provides that, “If the request is denied, the written decision will explain
the basis for the denial and notify the requester of his/her right to appeal.” Id.
at 539. The agency’s disability program manager testified, and the record
reflects, that the agency effectively informed the appellant that his request for
reasonable accommodation was denied in the decision effecting his removal but
that he was not notified of his right to appeal the reasonable accommodation
decision. Id. at 189-90 (testimony of the disability program manager), 494.
Thus, the agency erred in failing to notify the appellant of his right to appeal the
decision denying his request for reasonable accommodation. However, the
appellant has not shown that this error was one that would have caused the
agency to reach a different conclusion regarding his removal in the absence or
cure of the error. See Rogers, 122 M.S.P.R. 671, ¶ 7. The appellant contends that
the February 10, 2014 letter from his neurologist was intended to advocate for a
17
reasonable accommodation, and had he known that the agency would rely upon it
to conclude that he was medically unable to perform, he “may have been able to
discuss” why the information his neurologist considered was not relevant to the
deciding official’s decision and “work with the Agency to find a workable
accommodation.” RFR File, Tab 4 at 326-27, 339. The appellant does not show
how this discussion would have resulted in the deciding official reaching a
different conclusion regarding the appellant’s inability to perform the duties of
his position. In particular, the February 10, 2014 letter was unequivocal in its
assessment that the appellant could not return to work for at least another
4 months, if ever; thus, the appellant has not demonstrated that his explanation of
the letter would have led the agency to conclude that he could be accommodated
or that he could perform the core duties of his position. RFR File, Tab 5 at 106.
Accordingly, we find that the agency’s error was not harmful.
The post-reply ex parte communication similarly contained information
that led to the deciding official’s conclusion that the appellant could not be
accommodated and was unable to perform the core duties of his position. RFR
File, Tab 4 at 492-96. As set forth above, the appellant has not shown that his
explanation of the ex parte information would have led the agency to conclude
that he could be accommodated and thus retain his position; accordingly, we find
that the ex parte communication did not constitute harmful error.
The arbitrator failed to determine whether the appellant was a qualified individual
with a disability, but the appellant did not prove his claim of disability
discrimination.
We affirm, as modified below, the arbitrator’s finding that the appellant did
not prove that the agency discriminated against him on the basis of his disability.
On review, the appellant argues that the arbitrator erred in concluding that the
appellant’s requested reasonable accommodation placed an undue hardship on the
agency and that the appellant was accommodated when the agency placed him on
administrative leave. RFR File, Tab 4 at 9-11. In his analysis of the appellant’s
18
affirmative defense of disability discrimination, the arbitrator did not set forth
any legal standard on which he based his conclusions, nor did he follow any
cognizable analytical framework. Id. at 58-64. In particular, he failed to address
whether the appellant was a qualified individual with a disability, a disputed fact,
before proceeding to find that the requested accommodation would have placed
an undue hardship on the agency. Id. Thus, the Board has no basis on which to
defer to the arbitrator’s findings. See FitzGerald v. Department of Homeland
Security, 107 M.S.P.R. 666, ¶ 18 (2008) (holding that the Board may make its
own findings regarding the appellant’s claim of discrimination because the
arbitrator did not cite a legal standard and his analysis did not follow the proper
legal framework), overruled on other grounds by Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25. We have examined the
record and find that the appellant nevertheless failed to establish his affirmative
defense of discrimination.
The Rehabilitation Act requires an agency to provide a reasonable
accommodation to the known physical or mental limitations of an otherwise
qualified individual with a disability unless the agency can show that the
accommodation would cause an undue hardship on its business operations.
Clemens, 120 M.S.P.R. 616, ¶ 10; 29 C.F.R. § 1630.9(a).6 With exceptions not
applicable here, the term “qualified” means that the individual satisfies the
requisite skill, experience, education, and other job-related requirements of the
employment position the individual holds or desires and, with or without a
reasonable accommodation, can perform the essential functions of the position.
6 As a Federal employee, the appellant’s claim of discrimination on the basis of
disability arises under the Rehabilitation Act of 1973. White v. Department of Veterans
Affairs, 120 M.S.P.R. 405, ¶ 9 n.4 (2013). The Rehabilitation Act incorporates the
regulatory standards for the Americans with Disabilities Act (ADA). White,
120 M.S.P.R. 405, ¶ 9 n.4. Further, the ADA Amendments Act of 2008 (ADAAA), Pub.
L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. § 12101), applies to this appeal
because the incidents in question occurred after the January 1, 2009 effective date of the
ADAAA. White, 120 M.S.P.R. 405, ¶ 9 n.4.
19
Clemens, 120 M.S.P.R. 616, ¶ 10; 29 C.F.R. § 1630.2(m). Reasonable
accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability
to perform the essential job functions, or reassigning the employee to a vacant
position whose duties the employee can perform. Clemens, 120 M.S.P.R. 616,
¶ 10. To establish disability discrimination on the basis of a failure to
accommodate, an employee must show that: (1) he is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual
with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed
to provide a reasonable accommodation. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014).
The record below establishes that although the appellant demonstrated that
he is an individual with a disability, he did not establish that he is a qualified
individual with a disability. At the time of the appellant’s removal, the most
recent medical documentation that he submitted from his neurologist to the
agency opined that his memory loss and attention difficulty had “severely
impacted his ability to work,” that “[i]t is too soon for [the appellant] to be
cleared to return to his usual work, even with reasonable accommodations,” and
that 4 more months of therapy were required before the appellant’s neurologist
could determine whether the appellant could return to work at all. RFR File,
Tab 5 at 106. Although the appellant contended that he could return to work with
accommodation, this documentation concluded that he was not able to return to
work, with or without accommodation, for at least 4 months, if at all. Id. Thus,
at the time of his removal, the appellant was medically incapacitated, could not
perform the essential functions of his position, and was not a qualified individual
with a disability. See, e.g., Petitioner v. Department of the Army , EEOC Appeal
No. 0320150001, 2015 WL 5318989 (Sept. 4, 2015) (concurring with the Board’s
final order in finding that the petitioner was not a qualified individual with a
disability when “the most reliable medical documentation indicated that she was
20
unable to return to work in any capacity because of her disability”). Moreover,
on review, the appellant has not disputed the agency’s claim that it could not
accommodate him by reassigning him to a vacant position for which he was
qualified. RFR File, Tab 4 at 9-11, 495. Because the appellant is not a qualified
individual with a disability, his claim of disability discrimination based on failure
to accommodate fails. See Fox, 120 M.S.P.R. 529, ¶ 34 (holding that the
appellant failed to prove her claim of disability discrimination because she could
not perform the essential functions of her position even with reasonable
accommodation and was not a qualified individual with a disability).
Moreover, we find the appellant’s requested accommodation would not
have been effective and would have caused an undue burden on the agency’s
operations. A determination of undue hardship should be based on several
factors, including, inter alia, the nature and cost of the accommodation needed,
the overall financial resources of the facility, the type of operation, and the
impact of the accommodation on the operation of the facility. Clemens,
104 M.S.P.R. 362, ¶ 25. Following about 6 months of administrative leave, the
agency denied the appellant’s request for an accommodation of 6 additional
months of leave to receive treatment and evaluation for his medical condition.
RFR File, Tab 4 at 494-95. A request for an indefinite period of leave, such that
the employee cannot say whether or when he will be able to return to work at all,
constitutes an undue hardship. See Stevens v. Department of the Army ,
73 M.S.P.R. 619, 628-29 (1997) (finding that open-ended “latitude” granted to an
employee in leave and attendance matters was an unduly burdensome
accommodation); see also Jones v. Department of Transportation , 295 F.3d 1298,
1310 (Fed. Cir. 2002) (quoting Schultz v. United States Navy , 810 F.2d 1133,
1137 n.* (Fed. Cir. 1987), for the proposition that “[a]n agency is not
required . . . to indefinitely retain an employee on its rolls who cannot work due
to poor health”).
21
The appellant’s medical documentation demonstrates that he could not
work at least as of February 2014, and could not provide a date on which he
would return to work. RFR File, Tab 5 at 106. Based on the appellant’s
neurologist’s conclusion that he could not return to work in the foreseeable
future, the appellant’s requests for accommodation would not have been effective
accommodations that would have allowed him to perform the essential functions
of his position. The appellant, who already had been in an administrative leave
status for 6 months and had undergone 2 months of treatment for his medical
condition when he requested 6 additional months of leave, was unable to show
that 6 more months of leave would enable him to return to work. RFR File, Tab 5
at 103, 106. Additionally, the agency articulated that his absence, which already
had continued for 6 months, would have had a negative financial impact on the
agency due to limited travel funds, and would have caused strain on the
remaining engineers to cover the appellant’s inspections and the office as a whole
in meeting its mission to ensure that dams within its purview operated safely.
RFR File, Tab 4 at 494-95. Accordingly, we find that the requested
accommodation of leave would have constituted an undue burden on the agency.
The arbitrator did not err in finding that the agency did not violate the appellant’s
rights under the FMLA.
Intertwined in the appellant’s arguments asserting disability discrimination
is his argument the agency violated his right to 12 weeks of leave under the
FMLA when it did not approve his August 2013 application for leave under the
FMLA and instead initiated the instant removal action, which deprived him of the
opportunity to obtain treatment. RFR File, Tab 4 at 24, 339-40. If an agency
bases an adverse action on its interference with an employee’s rights under the
FMLA, the adverse action is a violation of law and cannot be sustained. Gross v.
Department of Justice , 77 M.S.P.R. 83, 90 (1997). Under the FMLA, an
“eligible” employee of a covered employer is entitled to unpaid leave, or paid
leave, if earned for a period of 12 weeks in any 12-month period because of, inter
22
alia, a serious health condition that renders the employee unable to perform his
job. 5 U.S.C. § 6382(a)(1); Gross, 77 M.S.P.R. at 86. In taking a leave-related
disciplinary action, an agency bears the burden of proving that it properly denied
an “eligible” employee leave under the FMLA. Jefferies v. Department of the
Navy, 78 M.S.P.R. 255, 259 (1998).
However, the charge in this matter was nondisciplinary in nature, medical
inability to perform. RFR File, Tab 4 at 492-96. In any event, shortly after the
appellant requested leave under the FMLA, the agency issued the notice of
proposed removal, which provided that he immediately would be placed in an
administrative leave status and remain in this status until further notice; it is
undisputed that the appellant remained on paid administrative leave until the
issuance of the decision sustaining his removal, or for just over 6 months. Id.
at 480-82. Therefore, the agency effectively provided the appellant with all of
the leave to which he was entitled under the FMLA and much more. See Young v.
Department of Veterans Affairs , 83 M.S.P.R. 187, ¶ 11 (1999) (finding that the
FMLA allows a maximum of 12 workweeks of leave, and so it did not preclude
sustaining a charge of excessive use of unpaid leave that lasted more than
12 weeks). We thus find that the agency did not violate the appellant’s rights
under the FMLA. Accordingly, the arbitrator’s decision is affirmed as modified
by this Final Order.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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.
23
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
24
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
25
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
26
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Smith_Daniel_P_CB-7121-17-0003-V-1_Final_Order.pdf | 2024-02-22 | DANIEL P. SMITH v. DEPARTMENT OF ENERGY, MSPB Docket No. CB-7121-17-0003-V-1, February 22, 2024 | CB-7121-17-0003-V-1 | NP |
2,279 | https://www.mspb.gov/decisions/nonprecedential/McFarland_Robin_R_PH-0752-18-0390-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN R. MCFARLAND,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-18-0390-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robin R. McFarland , Harrisburg, Pennsylvania, pro se.
Joseph Guerra and 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 her appeal for failure to prosecute. On petition for review, the
appellant reiterates her claims that her supervisor illegally changed her timesheet
to deny her pay for days she worked and refused to provide her with a release
date for her position to “block” her promotion. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
as 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 | McFarland_Robin_R_PH-0752-18-0390-I-1 Final Order.pdf | 2024-02-22 | ROBIN R. MCFARLAND v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-18-0390-I-1, February 22, 2024 | PH-0752-18-0390-I-1 | NP |
2,280 | https://www.mspb.gov/decisions/nonprecedential/Dolan_Paul_G_PH-0752-18-0317-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL G. DOLAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-18-0317-I-1
DATE: February 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin I. Lovitz , Esquire, Philadelphia, Pennsylvania, for the appellant.
Joseph Guerra and Victoria 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 his constructive removal appeal for lack of jurisdiction. On petition for
review, the appellant contends that he made nonfrivolous allegations of
jurisdiction to warrant a hearing. Petition for Review (PFR) File, Tab 1 at 2-10.
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).
On review, the appellant continues to assert that the agency officials
responsible for his removal were biased against him during the agency’s
investigation into his alleged misconduct and that certain remarks in the notice of
proposed removal were included solely to “stack the deck” against him to force
him to resign. PFR File, Tab 1 at 7-8; Initial Appeal File (IAF), Tab 3 at 3-5.
These arguments provide no basis to disturb the administrative judge’s finding
that the appellant failed to make a nonfrivolous allegation that his May 1, 2018
resignation was involuntary. IAF, Tab 9, Initial Decision (ID) at 4-6. We agree
with the administrative judge that an employee who must choose between the
unpleasant alternatives of resigning or being subject to removal for cause, without
more, has not rebutted the presumption that a resignation is voluntary. ID at 3-4
(citing Schultz v. Department of the Navy , 810 F.2d 1133, 1136-37 (Fed. Cir.
2 The appellant’s petition for review includes three exhibits, all of which are documents
that were in the record below. PFR File, Tab 1 at 11-67; Initial Appeal File, Tabs 2-3,
9. These documents are not new and do not provide any basis to disturb the initial
decision. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980)
(observing that evidence that is already part of the record is not new); 5 C.F.R.
§ 1201.115(d).2
1987)). To the extent that the appellant generally contends that the proposal
notice included remarks that were not based on facts, PFR File, Tab 1 at 7, he has
not nonfrivolously alleged that the agency knew or should have known that the
basis for its removal could not be sustained on appeal, see Schultz, 810 F.2d
at 1136; Barthel v. Department of the Army , 38 M.S.P.R. 245, 251-52 (1988).
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 | Dolan_Paul_G_PH-0752-18-0317-I-1 Final Order.pdf | 2024-02-22 | PAUL G. DOLAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-18-0317-I-1, February 22, 2024 | PH-0752-18-0317-I-1 | NP |
2,281 | https://www.mspb.gov/decisions/nonprecedential/Floyd_Carl_S_DC-0752-17-0662-C-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL STEVEN FLOYD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-17-0662-C-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Steven Floyd , Forestville, Maryland, pro se.
LaDonna L. Griffith-Lesesne , Esquire, Landover, Maryland, 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 compliance initial
decision, which granted in part the appellant’s petition for enforcement. For the
reasons discussed below, we GRANT the agency’s petition for review. We
AFFIRM the compliance initial decision AS MODIFIED to find that the agency is
in full compliance. We also DISMISS the petition for enforcement.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
In a prior appeal, a Board administrative judge ordered the agency to
restore the appellant to his Customer Service Supervisor position, effective
December 31, 2015, to pay him the appropriate amount of back pay, with interest,
and to adjust benefits with appropriate credits and deductions in accordance with
the Office of Personnel Management (OPM) regulations. Floyd v. U.S. Postal
Service, MSPB Docket No. DC-0752-17-0662-I-1, Initial Decision at 2, 18-19
(June 20, 2018). The initial decision became final on July 25, 2018, when neither
party petitioned for review. Id. at 20.
The appellant filed a petition for enforcement, which the
administrative judge granted in part. Floyd v. U.S. Postal Service , MSPB Docket
No. DC-0752-17-0662-C-1, Compliance File, Tabs 1, 24, Initial Decision (ID)
at 4-10. The administrative judge found, among other things, that the agency was
in compliance with respect to its calculations of overtime back pay and its
decision to reduce the back pay award by the amount the appellant previously
received for terminal leave and health insurance premiums withholdings.2
ID at 4-9. The administrative judge noted that the appellant did not challenge the
deduction for basic life insurance premiums; however, she found that the
appellant’s back pay award should be adjusted to account for “Post Retirement
Reduction” life insurance premiums and ordered the agency to reimburse him in
the amount of $144.84 per month, with interest, for the period of January 1, 2016,
to August 30, 2018. ID at 9-10.
The agency filed a petition for review, to which the appellant did not
respond. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the agency asserts, among other things, that if it took the action
ordered in the compliance initial decision, the appellant would receive a windfall
2 Neither party challenges the administrative judge’s findings in this regard, and we
affirm them herein.2
in the form of a double reimbursement. PFR File, Tab 1 at 5. The agency
explains that it was the responsibility of OPM to issue the appellant a refund of
his “Post Retirement No Reduction” life insurance premiums in the amount of
$4,634.88, and it was awaiting OPM’s action to bring it into compliance with the
Board’s order. Id. In support of its assertion, the agency submits, among other
things, a September 4, 2019 letter from OPM, which stated that the appellant will
receive a refund of his “Post Retirement No Reduction” life insurance premiums3
in the amount of $4,634.88—the equivalent of monthly premiums of $144.84 for
the period of January 1, 2016, to August 30, 2018—and that interest is not
payable on the refund.4 Id. at 9.
Because there existed a question as to whether the appellant had received
the refund of his post-retirement life insurance premiums, the Clerk of the Board
issued a Show Cause Order, which directed the appellant to indicate whether he
received $4,634.88 for the life insurance premiums at issue and whether his claim
for these benefits and/or interest remained outstanding. PFR File, Tab 5.
The appellant filed a response, to which the agency replied. PFR File, Tabs 9-10.
In his response, the appellant states that he received $4,634.88 from OPM on
September 12, 2019. PFR File, Tab 9 at 3. He did not indicate that he was still
pursuing this claim or seeking interest on this claim. The agency provided
documentation from OPM verifying the appellant’s receipt of this amount.
PFR File, Tab 10 at 7.
Based on the evidence submitted by the parties on review, and the absence
of any indication that the appellant is pursuing a claim of interest on the
post-retirement life insurance premiums, we find the agency in compliance and
3 Because the administrative judge and OPM utilized the same $144.84 monthly
premium amount and same total amount of $4,364.88, we need not resolve the
discrepancy between the different characterizations of these premiums.
4 The Board will consider evidence that constitutes a further explanation of the agency’s
efforts to comply with its orders. McDonough v. U.S. Postal Service , 60 M.S.P.R. 122,
125-26 (1993). 3
DISMISS the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS5
The compliance 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.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Floyd_Carl_S_DC-0752-17-0662-C-1 Final Order.pdf | 2024-02-21 | CARL STEVEN FLOYD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-17-0662-C-1, February 21, 2024 | DC-0752-17-0662-C-1 | NP |
2,282 | https://www.mspb.gov/decisions/nonprecedential/Keaton_Amy_C_CH-315H-18-0284-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY C. KEATON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-315H-18-0284-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Kenneth Bullock , 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
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the Board has jurisdiction over her
appeal pursuant to 5 C.F.R. § 315.806(c) because the agency terminated her, at
least in part, for preappointment reasons, without affording her the procedural
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
protections of 5 C.F.R. § 315.805, and she challenges the merits of the agency’s
termination decision. Petition for Review File, Tab 1 at 4-9. Generally, we grant
petitions such as 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 | Keaton_Amy_C_CH-315H-18-0284-I-1__Final_Order.pdf | 2024-02-21 | AMY C. KEATON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-315H-18-0284-I-1, February 21, 2024 | CH-315H-18-0284-I-1 | NP |
2,283 | https://www.mspb.gov/decisions/nonprecedential/Vayda_Ann_M_PH-0831-18-0246-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN M. VAYDA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
ROSEMARY E. HUDAK,
Intervenor.DOCKET NUMBER
PH-0831-18-0246-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ann M. Vayda , Philadelphia, Pennsylvania, pro se.
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(OPM) denying her claim for survivor benefits under the Civil Service Retirement
System (CSRS). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings 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 and to find that the appellant
cannot prove an entitlement to a lump-sum benefit as the decedent’s “widow”
under 5 U.S.C. § 8342(c), we AFFIRM the initial decision.
On petition for review, the appellant challenges the administrative judge’s
finding that she failed to prove her entitlement to survivor benefits as the
decedent’s widow because she did not prove that she and the decedent entered
into a common law marriage. Petition for Review (PFR) File, Tab 1; Initial
Appeal File (IAF), Tab 24, Initial Decision (ID) at 16. After considering the
appellant’s arguments on review and reviewing the record, we discern no reason
to disturb the thorough and well-reasoned initial decision. Specifically, we agree
with the administrative judge’s finding that the appellant did not meet her heavy
burden of proving that she and the decedent expressed a present intention to enter
into the legal relationship of marriage. ID at 12-16; see Staudenmayer v.
Staudenmayer, 714 A.2d 1016, 1021 (Pa. 1998) (holding that, if a putative spouse
who is able to testify and fails to prove by clear and convincing evidence the2
establishment of the marriage contract through the exchange of verba in praesenti
(i.e., words in the present tense), then that party has not met its “heavy” burden to
prove a common law marriage because it does not enjoy any presumption based
on evidence of constant cohabitation and reputation of marriage). We further
agree with the administrative judge’s finding that, even if he were to consider
evidence of a reputation of marriage for purposes of a rebuttable presumption of a
common law marriage, such evidence of a broad and general reputation of
marriage between the appellant and the decedent is lacking. ID at 15-16; see,
e.g., Giant Eagle v. Workers’ Compensation Appeal Board , 602 A.2d 387, 389
(Pa. Commw. Ct.) (finding that the evidence suggesting that the claimant and the
decedent’s reputation of marriage was confined to very few people was not
sufficient to give rise to the presumption of marriage), appeal denied, 618 A.2d
403 (Pa. 1992) (Table).
Although we agree with the administrative judge’s conclusion that the
appellant did not prove that she was entitled to survivor benefits as the decedent’s
widow, we modify the initial decision to supplement his analysis, as follows. ID
at 16. The administrative judge correctly addressed the appellant’s potential
entitlement to a survivor annuity as the decedent’s “widow” under 5 U.S.C.
§ 8341(d), but he did not explicitly decide her potential entitlement to a
lump-sum benefit as the decedent’s “widow” under 5 U.S.C. § 8342(c). ID at 3;
IAF, Tab 12 at 1-2; see Clark v. Office of Personnel Management , 40 M.S.P.R.
517, 519-20 (1989) (considering the possibility that the appellant was eligible for
a survivor annuity as a “current spouse” and also was entitled to a lump-sum
benefit under 5 U.S.C. § 8342(c) as the decedent’s widow). If a survivor annuity
is not payable, lump-sum benefits are to be paid according to the order of
precedence set forth at 5 U.S.C. § 8342(c). See 5 U.S.C. § 8342(d); Canelo v.
Office of Personnel Management , 56 M.S.P.R. 217, 219 (1993) (explaining that a
lump-sum benefit is to be paid, based on the service of a deceased Federal
employee, if that service does not entitle anyone to a survivor annuity at the time3
of the decedent’s death, or if, before a claim for a survivor annuity is filed, the
survivor’s right to the annuity has terminated); Narvasa v. Office of Personnel
Management, 47 M.S.P.R. 152, 154 (1991) (observing that, if no survivor annuity
is payable, and if the deceased employee served in a position covered by the
CSRS, 5 U.S.C. § 8342(d) provides for payment of a lump-sum benefit) .
Section 8342(c) provides that lump-sum benefits shall be paid first to the
designated beneficiary, and second, if there is no designated beneficiary, to the
“widow or widower” of the employee. Here, it is undisputed that the decedent
did not designate a beneficiary for payment of a lump-sum benefit. ID at 3.
Because we agree with the administrative judge’s finding that the appellant failed
to prove that she was the decedent’s “widow” based on a common law marriage
for purposes of a survivor annuity under 5 U.S.C. § 8341(d), ID at 3-4, 16, we
find that she cannot prove an entitlement to a lump-sum benefit as the decedent’s
“widow” under 5 U.S.C. § 8342(c).
The appellant further asserts on review that she was not prepared to present
her case at the hearing because a legal specialist at the Board allegedly told her
that the hearing would proceed in a question-and-answer format. PFR File, Tab 1
at 3. We discern no reason to disturb the initial decision on such a basis when
she has failed to describe how her substantive rights have been harmed. See
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding that an
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights) .
Accordingly, we affirm OPM’s reconsideration decision.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular5
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 6
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for
judicial review either with the U.S. Court of Appeals for the Federal Circuit or7
any court of appeals of competent jurisdiction.3 The court of appeals must
receive your petition for review within 60 days of the date of issuance of this
decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Vayda_Ann_M_PH-0831-18-0246-I-1__Final_Order.pdf | 2024-02-21 | ANN M. VAYDA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-18-0246-I-1, February 21, 2024 | PH-0831-18-0246-I-1 | NP |
2,284 | https://www.mspb.gov/decisions/nonprecedential/Dodrill_James_P_DC-300A-18-0663-I-1_Final_Order_2650922.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES PAUL DODRILL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-300A-18-0663-I-1
DATE: February 21, 2024
James Paul Dodrill , Zion Crossroads, Virginia, pro se.
Katherine Brewer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Member Limon has recused himself
from consideration of this case. Because there is no quorum to alter the
administrative judge’s initial decision, the initial decision now becomes the final
decision of the Merit Systems Protection Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3(d).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this order. 5 U.S.C. § 7703(b)
(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this order. 5 U.S.C. § 7703(b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in
this case, and your representative receives this order before you do, then you must
file with the district court no later than 30 calendar days after your
representative receives this order. If the action involves a claim of discrimination
based on race, color, religion, sex, national origin, or a disabling condition, you
may be entitled to representation by a court-appointed lawyer and to waiver of3
any requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this order. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this order. 5 U.S.C. § 7703(b)(1)
(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Dodrill_James_P_DC-300A-18-0663-I-1_Final_Order_2650922.pdf | 2024-02-21 | JAMES PAUL DODRILL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-300A-18-0663-I-1, February 21, 2024 | DC-300A-18-0663-I-1 | NP |
2,285 | https://www.mspb.gov/decisions/nonprecedential/Hudson_Lorelei_AT-0752-21-0485-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORELEI HUDSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-21-0485-I-2
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel K. Gebhardt , Esquire, Washington, D.C., for the appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, for the agency.
Torrey Smith , Esquire, 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
affirmed her demotion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. We AFFIRM the initial decision IN
PART, AS MODIFIED by this Final Order, REVERSE it IN PART, and
VACATE it IN PART. More specifically, in her analysis of the appellant’s
whistleblower reprisal affirmative defense, we REVERSE the administrative
judge’s finding that the appellant made a protected disclosure, and VACATE the
administrative judge’s clear and convincing evidence analysis as it relates to the
appellant’s third disclosure. We supplement the administrative judge’s analyses
of four of the appellant’s five remaining disclosures, find that the appellant
established that she engaged in protected activity based on the record, and
supplement the administrative judge’s analyses of contributing factor and, as it
relates to the appellant’s protected activity, the clear and convincing test.
BACKGROUND
In June 2021, the agency demoted the appellant based on misconduct from
the position of GS-14 Supervisory Human Resources Officer (HRO), chief of the
human resources (HR) office at the Central Alabama Veterans Healthcare System
(CAVHS), to the position of GS-13 Lead Human Resources Specialist. Hudson v.
Department of Veterans Affairs , AT-0752-21-0485-I-1, Initial Appeal File (IAF),
Tab 7 at 12, 14-16, Tab 8 at 6-11. The charges, which were based on findings of
an agency Administrative Investigation Board (AIB), pertained to two series of2
incidents. IAF, Tab 7 at 922-30, Tab 8 at 6-8. In the first series of incidents, the
appellant was alleged to have instructed several of her subordinates to backdate
an employee’s promotion without supporting documentation or lawful authority,
then disciplined them or used profanity when they refused to comply with her
instruction. IAF, Tab 8 at 6-8. In the second series of incidents, the appellant
was alleged to have retaliated against her Administrative Officer through various
methods—including revocation of telework and an admonishment—for
submitting a sick leave request on behalf of a coworker consistent with office
practice. Id. at 7-8. The appellant appealed her demotion to the Board. IAF,
Tab 1. The appellant raised affirmative defenses during her appeal, including
alleged retaliation for whistleblowing consisting of six protected disclosures and
four protected activities. Hudson v. Department of Veterans Affairs ,
AT-0752-21-0485-I-2, Appeal File (I-2 AF), Tab 34 at 6-9, 14-15, Tab 38 at 2.
After holding a hearing, the administrative judge affirmed the appellant’s
demotion and denied the appellant’s affirmative defenses. I-2 AF, Tab 56, Initial
Decision (ID). Regarding the agency’s adverse action case, the administrative
judge sustained both of the agency’s charges, and found that the agency
established a nexus between the appellant’s conduct and the efficiency of the
service and proved the reasonableness of its penalty. ID at 4-14, 35-37.
In denying the appellant’s whistleblower reprisal claim, the administrative
judge first determined that the appellant established that only one of her
disclosures—disclosure three—was protected under 5 U.S.C. § 2302(b)(8), and
only in part. ID at 17-24. Next, the administrative judge found, without any
analysis, that all four activities the appellant raised were protected under 5 U.S.C.
§ 2302(b)(9), before proceeding to analyze contributing factor. ID at 24-28. She
then found that the appellant established contributing factor through the
knowledge/timing test for disclosure three and one of her alleged protected
activities—activity three. ID at 26-28. The administrative judge determined that
the appellant did not establish contributing factor for her remaining activities3
upon crediting the proposing and deciding officials’ attested ignorance of those
activities. Id.
The administrative judge then commenced to analyze the agency’s burden
under the factors set forth by the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) in Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999). ID at 28-32. For Carr factor one, among other considerations,
she credited the testimony of the appellant’s subordinates to determine that the
agency’s evidence in support of the appellant’s demotion was very strong. ID
at 30-31. For Carr factor two, the administrative judge found that the deciding
official may have had some institutional motive to retaliate stemming from his
knowledge of the appellant’s whistleblowing activity but that absent proof of any
other retaliatory motive, he had minimal motive, if any, to retaliate against the
appellant. ID at 31. Finally, the administrative judge found that the agency did
not present evidence of similarly situated non-whistleblowers and that Carr factor
three was thus neutral. ID at 32. Weighing the strength of the agency’s evidence
against the minimal motive to retaliate, the administrative judge concluded that
the agency proved by clear and convincing evidence that it would have demoted
the appellant absent her whistleblowing disclosure and activity. Id.
The appellant filed a petition for review in which she, among other things,
alleges that the administrative judge erroneously denied her a “key witness” and
her damages witnesses, “reprimanded” her for attempting to consult with her
attorney during the hearing, and credited the testimony of agency witnesses with
“performance and misconduct issues” over her testimony despite her lack of such
issues. Petition for Review (PFR) File, Tab 1. The agency filed a response. PFR
File, Tab 4.
ANALYSIS
Under the Whistleblower Protection Enhancement Act, to prevail on a
prohibited personnel practice affirmative defense in a chapter 75 appeal that4
independently could form the basis of a Board appeal, once the agency proves its
adverse action case by a preponderance of the evidence, the appellant must
demonstrate by preponderant evidence that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and that the disclosure or activity was a contributing
factor in the adverse action. Fisher v. Department of the Interior , 2023 MSPB
11, ¶ 5. A protected disclosure is a disclosure that an appellant reasonably
believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A). A
reasonable belief exists if a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the appellant could reasonably
conclude that the actions of the Government evidence one of the categories of
wrongdoing listed in section 2302(b)(8)(A). Smith v. Department of the Army ,
2022 MSPB 4, ¶ 14. “Gross mismanagement” is more than de minimis
wrongdoing or negligence; it means a management action or inaction that creates
a substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Salazar v. Department of Veterans Affairs , 2022 MSPB
42, ¶ 24. A “gross waste of funds” constitutes a more than debatable expenditure
that is significantly out of proportion to the benefit reasonably expected to accrue
to the government. Lane v. Department of Homeland Security , 115 M.S.P.R. 342,
¶ 31 (2010). “Abuse of authority” is an arbitrary or capricious exercise of power
by a Federal official or employee that adversely affected the rights of any person
or that resulted in personal gain or advantage to him or to preferred other
persons. Downing v. Department of Labor , 98 M.S.P.R. 64, ¶ 12 (2004) , aff’d,
162 F. App’x 993 (Fed. Cir. 2006) .
Whistleblowing activity is a contributing factor in a personnel action if it
affects an agency’s decision to take a personnel action in any way. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One of the ways to5
prove contributing factor is through the knowledge/timing test, in which the
appellant may demonstrate that the official taking the personnel action knew of
the disclosure and that the personnel action occurred within 1 to 2 years of the
disclosure. Salazar, 2022 MSPB 42, ¶ 32. The Board has held that, if an
administrative judge determines that an appellant has failed to satisfy the
knowledge/timing test, she shall consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.
If the appellant meets her burden, then the burden of persuasion shifts to
the agency to prove by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s protected disclosure or activity.
Fisher, 2023 MSPB 11, ¶ 5. In determining whether an agency has met this
burden, the Board will consider the following factors: (1) the strength of the
agency’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr, 185 F.3d at 1323.
The appellant did not establish that she made a protected disclosure.
For disclosure three, the appellant claimed that she emailed the deciding
official on July 16, 2020, that required documents, such as a market pay form,
had not been submitted to remove an agency physician from his position and that
the attempt to lower the physician’s “pay tier” violated agency policy. I-2 AF,
Tab 16 at 26-27, Tab 34 at 7. The appellant claimed that these actions violated a
provision of the agency’s Handbook 5007/54 which prohibits reduction of
physicians’ market pay except in limited circumstances, including a change in
assignment. I-2 AF, Tab 34 at 7. The appellant also alleged that she disclosed6
that the agency’s actions or omissions constituted gross mismanagement and
abuse of authority. Id. The text of the appellant’s July 16, 2020 email stated, in
relevant part, that a vacancy had been announced for a position already
encumbered by a physician, that it was “illegal” to double -encumber the position,
and that required documents were never submitted to HR to remove the position’s
incumbent, including a market pay form required for any reassignment. I-2 AF,
Tab 16 at 26-27.
We agree with the administrative judge that, based on the testimony of
witnesses regarding the permissibility of double-encumbering positions and the
appellant’s testimony that, among other things, she did not literally mean that it
was illegal to double-encumber the position, the appellant’s assertion of illegality
in her July 16, 2020 email did not disclose a violation of law, rule, or regulation,
gross mismanagement, or abuse of authority. ID at 20-22. The administrative
judge found, however, that the appellant had a reasonable belief that the
physician had been relocated without a proper market pay form, and thus that the
disclosure of the failure to complete a market pay form, which “potentially
violates agency policy,” was protected. ID at 21. We disagree with the
administrative judge’s finding that this disclosure was protected.
Ordinarily, to make a protected disclosure of a law, rule, or regulation, an
employee must identify the specific law, rule, or regulation that was violated,
though an individual need not identify a statutory or regulatory provision by a
particular title or number when the statements and the circumstances surrounding
the making of those statements clearly implicate an identifiable violation of law,
rule, or regulation. Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 24
(2015) (internal quotations omitted). The appellant’s email and the circumstances
surrounding it did not clearly implicate an identifiable violation of law, rule, or
regulation. The appellant framed disclosure three as an assertion that the
agency’s failure to submit certain forms and attempt to lower the physician’s pay
tier violated agency policy prohibiting reduction of physicians’ market pay except7
in limited circumstances. I-2 AF, Tab 16 at 7. But nowhere in the July 16, 2020
email did the appellant assert that the physician’s market pay was being reduced.
I-2 AF, Tab 16 at 26-27. Because the email contained no assertion of a violation
of the identified policy, we find that the appellant did not establish that she
reasonably believed her email disclosed a violation of an identified law, rule, or
regulation. We also find that the appellant’s email did not otherwise evidence
gross mismanagement or abuse of authority.
We supplement the remainder of the administrative judge’s analysis of the
appellant’s disclosures as follows. For disclosure one, the appellant claimed that
she informed CAVHS managers of violations of agency policy in an incident in
which the HR office extended a job offer before receiving documentation related
to the selection. I-2 AF, Tab 34 at 7, Tab 53, Hearing Recording (HR) Day 4
(testimony of the appellant). The administrative judge found disclosure one not
protected on the grounds that the appellant did not identify the allegedly violated
policy with any particularity.2 ID at 18-19. The appellant did, however, claim
during the appeal that the disclosure evidenced violations of two sections of
Handbook 5005 she identified. I-2 AF, Tab 34 at 7.
In any event, the administrative judge’s failure to address those sections
did not prejudice the appellant. One of those sections pertains to retention of
records of job announcements and does not require that an HR office receive such
records before making a job offer. I-2 AF, Tab 36 at 100-01. The appellant’s
June 3, 2019 memorandum, which she asserts was part of disclosure one, I-2 AF,
Tab 34 at 7, shows that the HR office eventually received records of the selection
at issue, including the scoring sheets, and we see nothing that amounts to what a
disinterested observer could reasonably conclude evidenced a violation of the
2 In assessing whether the appellant’s disclosures—many of which related to agency or
Government-wide HR policies and procedures—were protected, we are mindful that,
due to her position, the appellant possessed extensive expertise in the area. See Smith,
2022 MSPB 4, ¶ 14 (stating that an appellant must show that a reasonable person in her
position would believe that the matter disclosed evidenced one of the situations
specified in 5 U.S.C. § 2302(b)(8)).8
policy identified by the appellant. I-2 AF, Tab 16 at 13-14. We also fail to
discern from the other section of Handbook 5005 referenced by the appellant—
which pertains to actions taken after a selection is discovered to have been
improper—that she reasonably believed her disclosure evidenced any violation
thereof. I-2 AF, Tab 36 at 96.
Regarding disclosure two, the appellant claimed to have disclosed to her
supervisor that the supervisor previously told her not to hire a certain employee
as her assistant chief because of a reference the employee had given the
supervisor that turned out to be inaccurate. I-2 AF, Tab 34 at 7. The
administrative judge analyzed disclosure two as asserting violations of 5 U.S.C.
§ 2302(b)(1) and (b)(2), when the appellant framed disclosure two as evidencing
violations of 5 U.S.C. § 2302(b)(12) and 5 U.S.C. § 2301(b)(1) and (b)(8). ID
at 19-20; I-2 AF, Tab 34 at 7, Tab 38 at 2. Section 2302(b)(12) of Title 5, U.S.
Code prohibits, in relevant part, the taking of a personnel action that violates any
law, rule, or regulation implementing, or directly concerning, the merit systems
principles set forth in 5 U.S.C. § 2301. Meanwhile, subsection (b)(1) of 5 U.S.C.
§ 2301 states, in relevant part, that “selection and advancement should be
determined solely on the basis of relative ability, knowledge, and skills, after fair
and open competition which assures that all receive equal opportunity,” while
subsection (b)(8) states, in relevant part, that employees should be protected
against arbitrary action.
The administrative judge’s error, however, did not prejudice the appellant.
The appellant testified that the supervisor had also told her that the candidate who
gave the inaccurate reference was not honest about his issues with the employee,
having known that the employee was a poor performer. HR Day 4 (testimony of
the appellant). We find that, to the extent the appellant disclosed to her
supervisor that the supervisor’s comments led to the candidate’s nonselection, the
appellant was aware that the supervisor’s concerns related to the candidate’s
integrity or his ability to assess performance, both of which are appropriate9
considerations under 5 U.S.C. § 2301(b)(1) and unarbitrary bases for a
nonselection. The evidence thus indicates that the appellant did not reasonably
believe disclosure two evidenced a violation of 5 U.S.C. § 2302(b)(12), 5 U.S.C.
§ 2301(b)(1), or 5 U.S.C. § 2301(b)(8).
Regarding disclosure five,3 the appellant alleged that her March 9, 2021
disclosure to her supervisor that she was doing no “meaningful” work while she
was detailed after the AIB into her misconduct evidenced gross mismanagement,
gross waste of funds, abuse of authority, and a violation of law, rule, or
regulation. I-2 AF, Tab 26 at 138, Tab 34 at 8. We agree with the administrative
judge that the appellant’s disclosure did not evidence any such wrongdoing.4 ID
at 23. We add, however, that, contrary to the administrative judge’s
determination that the appellant did not reference a violation of a specific policy,
the appellant claimed that her disclosure evidenced a violation of the section of
Handbook 5005 regarding details. Id.; I-2 AF, Tab 34 at 8. In any event, as we
found in discussing disclosures one and two, the administrative judge’s failure to
address the section the appellant identified did not prejudice the appellant, as the
relevant section on details in Handbook 5005 does not contain any provision
relating to duties of employees on details. I-2 AF, Tab 36 at 1488-90.
Regarding disclosure six, the appellant claimed that she disclosed
retaliatory acts by CAVHS management officials to the deciding official in an
April 29, 2021 email. I-2 AF, Tab 26 at 140, Tab 34 at 8, Tab 38 at 2. The
3 We agree with the administrative judge’s determination that, for the reasons set forth
in the initial decision, disclosure four was not protected. ID at 22-23.
4 When asked during the appeal to clarify disclosure five regarding not being assigned
“meaningful” duties, the appellant explained that the disclosure evidenced gross
mismanagement, a gross waste of funds, and abuse of authority because she was “a
high-level management official being paid her salary and not doing any work within her
PD.” I-2 AF, Tab 16 at 8. Because it should not have been surprising to an experienced
HR professional, such as the appellant, that she would not perform work within her
position description while detailed away from her position, we find that the appellant
did not reasonably believe her disclosure evidenced any of the categories of wrongdoing
set forth in 5 U.S.C. § 2302(b)(8).10
appellant claimed that, in addition to abuse of authority—which the
administrative judge appropriately addressed—her disclosures evidenced
violations of the agency’s whistleblower protection policy. ID at 24; I-2 AF,
Tab 34 at 8. Although the appellant did not identify which provision of the
agency’s whistleblower protection policy she claimed was violated, Directive
0500 defines whistleblower retaliation as “a supervisor taking or failing to take,
threatening to take or not to take, a personnel action because of a whistleblower
disclosure,” relying on the definition of “personnel action” in 5 U.S.C. § 2302(a)
(2)(A).5 VA Directive 0500, Office of Accountability and Whistleblower
Protection: Investigation of Whistleblower Disclosures and Allegations
Involving Senior Leaders or Whistleblower Retaliation, § 2.f, m (2019),
https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=1062&FType=2 .
Because the managers’ allegedly retaliatory acts asserted in the April 29, 2021
email—including providing information to the AIB about her misconduct, yelling
at her, and telling her to destroy certain records—do not constitute personnel
actions under 5 U.S.C. § 2302(a)(2)(A), we find that the email was not a
disclosure which evidenced a violation of an identified law, rule, or regulation.
In sum, we agree with the administrative judge’s determinations, as
supplemented, that disclosures one, two, five, and six were not protected. We
also agree, for the reasons set forth in the initial decision, that disclosure four was
not protected. Finally, regarding disclosure three, we reverse the initial decision
and find it not protected. Thus, the appellant did not make a protected disclosure.
Because we find that disclosure three was not protected, it was unnecessary for
the administrative judge to consider whether the agency established by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of disclosure three. 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
5 Although the document is not in the record, it is publicly available on the internet, and
the Board may take official notice of publicly available documents. Graves v.
Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 19 n.3 (2016).11
clear and convincing stage of the whistleblower protection analytical framework
unless it has first determined that the appellant established her prima facie case of
whistleblower reprisal), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly,
we vacate the administrative judge’s analyses of the clear and convincing test as
it relates to disclosure three.
The appellant established that she engaged in a protected activity which was a
contributing factor in her demotion.
As noted previously, the appellant also raised four whistleblowing
activities as part of her whistleblower reprisal affirmative defense. I-2 AF,
Tab 34 at 8-9. Specifically, she alleged that she cooperated with an AIB
regarding CAVHS leadership by providing testimony about policy violations and
provided documents and statements to the Office of Special Counsel (OSC) in
support of various investigations it conducted into CAVHS incidents. Id.
According to the appellant, these activities were protected under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), and (C). Id. While the administrative judge did not
analyze whether these activities were protected, assuming that the appellant
established that she engaged in those activities and that they were protected under
5 U.S.C. § 2302(b)(9), we find that the administrative judge correctly found
contributing factor satisfied through the knowledge/timing test for only activity
three based on, among other things, the testimony of the proposing and deciding
officials regarding their knowledge or ignorance of the appellant’s activities. ID
at 26-28. Because the administrative judge did not, however, consider other
evidence relevant to contributing factor for the remaining three activities, we do
so here. As discussed, in considering evidence other than the knowledge/timing
test for determining contributing factor, the Board examines evidence such as the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether these individuals had a desire or motive to retaliate against
the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.12
First, the agency’s reasons for demoting the appellant were very strong.
The gravamen of the appellant’s misconduct was a series of incidents in which
she instructed several of her subordinates to improperly backdate an employee’s
promotion and retaliated against them for refusing to do so. IAF, Tab 8 at 6-8.
The deciding official testified that the appellant was supposed to know HR rules
as the subject matter expert at CAVHS, that she had lost the trust of her
subordinate staff, management, and the HR office at the agency’s regional
headquarters, and that she could no longer be effective in her job. I-2 AF,
Tab 47, HR Day 3 (testimony of the deciding official). The appellant offers no
basis to doubt this testimony, nor do we discern any.
Second, none of the appellant’s activities were personally directed at the
proposing or deciding officials. Third, we fail to discern that the appellant’s
activities created a motive to retaliate in the proposing or deciding officials. The
appellant testified that she provided testimony to an AIB regarding bullying and
hostile work environment allegations regarding the CAVHS Deputy Medical
Center Director for activity one, without discussing the details of that testimony;
that she cooperated with an interview by the agency’s Office of Medical
Inspections for activity two, without explaining what that cooperation entailed;
and that she did not describe her alleged cooperation with the OSC for activity
four in a manner that distinguished that activity from her other whistleblowing
activity. HR Day 4 (testimony of the appellant). The appellant’s descriptions of
the content of her activities do not warrant inferring anything more than minimal
retaliatory motive, if any. Further, multiple agency witnesses, including the
proposing and deciding officials, testified that HR officials routinely cooperated
with AIBs or OSC investigations as part of their duties. HR Day 2 (testimony of
the Supervisory HR Specialist, testimony of the proposing official); HR Day 3
(testimony of the regional headquarters Associate HRO, testimony of the deciding
official). An HR professional explained that HR professionals provided requested
documents or testimony to AIBs or OSC as part of such routine cooperation. HR13
Day 3 (testimony of the regional headquarters Associate HRO). With the possible
exception of portions of activity one, there is no indication that the appellant’s
activities fell outside such routine assistance.6 We thus find that the appellant’s
activities would not have created anything more than minimal retaliatory desire or
motive, if any, within the proposing or deciding officials.
In light of this analysis, we find that the appellant did not establish
contributing factor for activities one, two, or four. The administrative judge’s
failure to consider the ways other than the knowledge/timing test to establish
contributing factor thus did not prejudice the appellant, affording no basis to
reverse the initial decision. Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984). Regarding activity three, based on evidence indicating that the
appellant spoke with an OSC investigator and provided information to OSC on
June 2, 2020, the date she claimed to have engaged in the activity, we find the
activity protected under 5 U.S.C. § 2302(b)(9)(C) . HR Day 2 (testimony of the
appellant); I-2 AF, Tab 28 at 684-87, Tab 34 at 9, Tab 49 at 52; see Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 62 (clarifying that under
5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OSC is protected
regardless of content) . Thus, having found that the appellant established a prima
facie case of whistleblower reprisal for activity three, we now consider whether
the agency established by clear and convincing evidence that it would have taken
the demotion action in the absence of that activity.
The agency proved by clear and convincing evidence that it would have demoted
the appellant in the absence of her protected activity.
Again, in determining whether an agency has met its burden of proving that
it would have taken the contested action in the absence of protected activity, the
Board will consider the following factors: (1) the strength of the agency’s
6 Title 5, U.S. Code, section 2302(f)(2), which imposes an extra burden for proving that
disclosures made in the normal course of duties of certain employees are protected, is
not applicable to activities under 5 U.S.C. § 2302(b)(9). Salazar, 2022 MSPB 42,
¶¶ 10-14. Thus, that provision has no relevance to this appeal. 14
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d
at 1323. The analysis of motive to retaliate under Carr factor two requires
accounting for any institutional motive to retaliate relevant agency officials may
have had. The Federal Circuit stated in Whitmore v. Department of Labor ,
680 F.3d 1353, 1370 (Fed. Cir. 2012) that “[t]hose responsible for the agency’s
performance overall may well be motivated to retaliate even if they are not
directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
managers and employees.” In Robinson v. Department of Veterans Affairs ,
923 F.3d 1004, 1019 (Fed. Cir. 2019), the Federal Circuit explained that such a
“professional retaliatory motive” could exist when whistleblowing activity
“implicated the capabilities, performance, and veracity of [agency] managers and
employees . . . .” The Board thus held that the fact that disclosures reflected
poorly on Government officials as representatives of the “general institutional
interests” of their agency was sufficient to establish retaliatory motive. Smith,
2022 MSPB 4, ¶ 29.
Turning to the instant appeal, we find, for reasons discussed earlier, that
the agency’s evidence in support of its action was very strong for Carr factor one.
Regarding Carr factor two, we find that the proposing and deciding officials had
minimal, if any, motive to retaliate against the appellant for activity three. There
is no indication that any assistance the appellant provided to OSC on June 2,
2020, in the physician’s whistleblower reprisal complaint implicated the
proposing or deciding officials personally. Further, regarding professional
retaliatory motive, the proposing official had not yet begun her tenure as the
regional headquarters chief of HR as of June 2, 2020, while the deciding official
began his tenure at the regional headquarters that same month, and there is no15
indication that the appellant’s cooperation with OSC otherwise reflected directly
on their performance as managers. HR Day 2 (testimony of the proposing
official); HR Day 3 (testimony of the deciding official). In addition, the record
shows that the appellant participated in the OSC investigation as part of her
routine, official HR duties. HR Day 2 (testimony of the Supervisory HR
Specialist, testimony of the proposing official); HR Day 3 (testimony of the
regional headquarters Associate HRO, testimony of the deciding official); HR
Day 4 (testimony of the appellant); I-2 AF, Tab 28 at 684-87. Lastly on the issue
of motive, there is no evidence that the appellant’s protected activity reflected so
poorly on the agency or agency employees as to justify an inference of more than
minimal retaliatory motive, if any at all.
Next, we agree with the administrative judge that, because the agency did
not present evidence of similarly situated non-whistleblowers, Carr factor three is
neutral.7 ID at 32; see Whitmore, 680 F.3d at 1374 (stating that “the absence of
any evidence relating to Carr factor three can effectively remove that factor from
the analysis”). Ultimately, we agree with the administrative judge’s conclusion
that, weighing the strength of the agency’s evidence against the minimal motive
to retaliate, the evidence clearly and convincingly showed that the agency would
7 Even if we were to find that the absence of evidence regarding Carr factor three cut
slightly against the agency, based on our analysis of the other Carr factors, we would
find that the agency met its burden on the clear and convincing test. 16
have demoted the appellant even in the absence of her protected activity.8 ID
at 32.
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
8 On review, the appellant claims that the administrative judge “reprimanded” her for
speaking to the administrative judge during the hearing in an attempt to consult with her
attorney. PFR File, Tab 1 at 3. In one instance during the hearing, the appellant
interrupted a discussion between the administrative judge and the parties’
representatives, and the administrative judge told the appellant that her representative
was supposed to speak on her behalf. HR Day 2 (discussion between the parties and the
administrative judge). But when the appellant then requested permission to speak to her
representative, the administrative judge permitted her to do so without hesitation.
Id. We fail to discern any error in the administrative judge’s response. Next, despite
the appellant’s claims on review, PFR File, Tab 1 at 3, we find that the administrative
judge appropriately addressed the appellant’s witness requests below, I-2 AF, Tab 34
at 17-18, Tab 38 at 2-3, and that the appellant provides no sufficiently sound reason for
overturning the administrative judge’s credibility determinations, Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) , to credit the testimony of the
witnesses the appellant challenges over that of the appellant, ID at 9-11, and we identify
no material issue with her analysis. Finally, the appellant submits on review an agency
email with the same date as her petition for review designating her as an interim acting
supervisor. PFR File, Tab 1 at 4. Even if the exhibit could theoretically undermine the
deciding official’s reason for demoting the appellant from her supervisory position, the
email is dated over 16 months after the appellant’s demotion, and the official sending
the email notes that she does not anticipate the detail being a long one. Id. Further, as
a Lead HR Specialist, it is not surprising or inappropriate for the appellant to act as a
supervisor for a brief period. We thus fail to see any special import in the exhibit to the
issues in the appeal.
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.17
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file19
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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. 20
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.22 | Hudson_Lorelei_AT-0752-21-0485-I-2__Final_Order.pdf | 2024-02-21 | LORELEI HUDSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0485-I-2, February 21, 2024 | AT-0752-21-0485-I-2 | NP |
2,286 | https://www.mspb.gov/decisions/nonprecedential/Carter_JurgenAT-0752-17-0517-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JURGEN CARTER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-17-0517-I-2
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Esquire, Mt. Pleasant, South Carolina, for the
appellant.
Cynthia A. Laureano , Charleston, South Carolina, for the agency.
Lucille P. Smith , Columbia, South Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as moot. On petition for review,2 the appellant argues 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).
2 On the same day that the administrative judge issued the initial decision in this appeal,
he issued an initial decision affirming the appellant’s removal taken under
the administrative judge erred in finding that he did not prove retaliation for
filing an equal employment opportunity complaint. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. 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
38 U.S.C. § 714. Carter v. Department of Veterans Affairs , MSPB Docket No.
AT-0714-18-0263-I-1, Initial Appeal File, Tab 16, Initial Decision. In the petition for
review in this case, the appellant alleges that the administrative judge erred in
adjudicating the section 714 removal. Petition for Review File, Tab 1 at 6-15. He
contends that, at the hearing, the agency proceeded with charges that were not contained
in the notice of proposed removal, id. at 8-9, that the agency did not prove the charges,
id. at 9-14, and that the charges were unconstitutionally vague, id. at 14-15. Because it
is clear that the appellant is filing a petition for review of both the initial decision in
this appeal, Carter v. Department of Veterans Affairs , AT-0752-17-0517-I-2, and the
initial decision in the section 714 appeal, Carter v. Department of Veterans Affairs ,
AT-0714-18-0263-I-1, a separate petition for review of the initial decision in the
section 714 removal appeal has been docketed.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Carter_JurgenAT-0752-17-0517-I-2 Final Order.pdf | 2024-02-21 | JURGEN CARTER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-17-0517-I-2, February 21, 2024 | AT-0752-17-0517-I-2 | NP |
2,287 | https://www.mspb.gov/decisions/nonprecedential/Melendez_Dekeshia_L_SF-315H-18-0461-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEKESHIA L. MELENDEZ,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-18-0461-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebecca Schuman , Silverdale, Washington, for the appellant.
Harold G. Murray , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her 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
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).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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. | Melendez_Dekeshia_L_SF-315H-18-0461-I-1__Final_Order.pdf | 2024-02-21 | DEKESHIA L. MELENDEZ v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-18-0461-I-1, February 21, 2024 | SF-315H-18-0461-I-1 | NP |
2,288 | https://www.mspb.gov/decisions/nonprecedential/Tyson_Tanya_L_AT-3443-18-0372-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANYA L. TYSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-3443-18-0372-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick W. McKee , Esquire, Newnan, Georgia, for the appellant.
Jeffrey Poulin , Springfield, 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 nonselection appeal for lack of jurisdiction. On petition for review,
the appellant argues that the Board has jurisdiction in the matter because the
Office of Personnel Management (OPM) delegated its selection authority to the
agency, and, as such, her appeal relates to an employment practice applied by
OPM. Petition for Review (PFR) File, Tab 1 at 4-5, 10-18; see 5 C.F.R.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
§ 300.104(a). Generally, we grant petitions such as 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).
Nonselection for an appointment is generally not appealable to the Board.
Prewitt v. Merit Systems Protection Board , 133 F.3d 885, 886 (Fed. Cir. 1998).
However, the Board has jurisdiction over claims related to employment practices
that violate a basic requirement in 5 C.F.R. § 300.103, provided OPM is involved
in administering the same. 5 C.F.R. § 300.104(a).
On review, the appellant argues that her appeal concerns such an
employment practice because OPM delegated its selection authority to the agency
and failed to revoke its delegation despite the agency’s alleged history of
discrimination. PFR File, Tab 1 at 6-18; see 5 C.F.R. § 300.104(a). We agree
with the administrative judge that OPM’s mere delegation does not constitute an
employment practice. See 5 C.F.R. § 300.101; see also Phillips v. Department of
the Navy, 40 M.S.P.R. 620, 623 (1989) (finding that OPM’s delegation of
“employment authority” did not constitute an employment practice). Because the
appellant has failed to make even a nonfrivolous allegation that the contested
agency action involves an employment practice, as that term is used in 5 C.F.R.2
part 300, subpart A, we agree with the administrative judge that the Board lacks
jurisdiction over her appeal. See Phillips, 40 M.S.P.R. at 623; 5 C.F.R.
§§ 300.101, 300.104.
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 | Tyson_Tanya_L_AT-3443-18-0372-I-1__Final_Order.pdf | 2024-02-21 | TANYA L. TYSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-3443-18-0372-I-1, February 21, 2024 | AT-3443-18-0372-I-1 | NP |
2,289 | https://www.mspb.gov/decisions/nonprecedential/Jones_Tyler_M_AT-0752-17-0799-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYLER M. JONES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-17-0799-I-1
DATE: February 21, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire, and Rosemary Dettling , Esquire, Washington, D.C.,
for the appellant.
Leslie A. Saint , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The agency issued a September 7, 2016 Letter of Requirement (LOR),
concerning the appellant’s use of unscheduled leave. Initial Appeal File (IAF),
Tab 6 at 69-71. In the LOR, the agency notified him of the specific requirements
he must follow to request leave of any type and explained that his continued
failure to maintain regular attendance or comply with established leave policy
may result in charges of absence without leave (AWOL) and his removal. Id. On
July 18, 2017, the agency proposed removing the appellant from his GS-12
Intelligence Analyst position for continued excessive and unexcused absences.
Id. at 6-7. After considering the appellant’s written and oral responses, the
agency removed him effective August 28, 2017. Id. at 12, 57-59.
The appellant filed a Board appeal and, after holding a hearing, the
administrative judge reversed the appellant’s removal. IAF, Tab 32, Initial
Decision (ID). The administrative judge interpreted the agency’s charge of
“continued excessive and unexcused absences” as a charge of “excessive
absences” and found that the agency failed to meet the first prong of that charge,
i.e., that the employee was absent for compelling reasons beyond his control so
that agency approval or disapproval of leave was immaterial because the
employee could not be on the job. ID at 2 (citing Cook v. Department of the
Army, 18 M.S.P.R. 610, 611-12 (1984) (finding an exception to the general rule
that an agency may not remove an employee for use of approved leave)).
In its petition for review, the agency asserts that it provided the required
interim relief, and argues that the administrative judge erred in interpreting the
charge as “excessive absences” because he ignored its contention that the
absences at issue were unexcused.2 Petition for Review (PFR) File, Tab 3 at 6. It
argues that the Cook exception the administrative judge employed in adjudicating
the appeal only applies to a charge of excessive approved absences, not the
2 The appellant has not argued that the agency failed to provide proper interim relief;
thus, we do not address that issue.
3
unapproved instances of AWOL set forth in the notice of proposed removal. Id.
at 6-11. It also argues that the penalty of removal is reasonable under the
circumstances and promotes the efficiency of the service. Id. at 11-14. The
appellant has responded in opposition to the agency’s petition for review, and the
agency has filed a reply to the appellant’s response. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Cook exception does not apply to this charge.
For the following reasons, we agree with the agency that the instant appeal
is not governed by Cook. PFR File, Tab 3 at 6-11. In Cook, as noted above, the
Board found an exception to the general rule that an agency may not take an
adverse action based on an employee’s use of approved leave, determining that an
agency may remove an employee for such excessive absences when the following
criteria are met: (1) the employee was absent for compelling reasons beyond his
control so that agency approval or disapproval of leave was immaterial because
the employee could not be on the job; (2) the absences continued beyond a
reasonable time, and the agency warned the employee that an adverse action
could be taken unless he becomes available for duty on a regular full-time or
part-time basis; and (3) the agency showed that the position needed to be filled by
an employee available for duty on a regular, full-time or part-time basis. Cook,
18 M.S.P.R. at 611-12. Thus, Cook specifically concerned an employee’s
excessive use of approved leave. Cook, 18 M.S.P.R. at 611. To the extent that
periods of AWOL are included in an excessive absences charge, the Board will
not consider those periods under the Cook standard, but instead will consider
them as an AWOL charge. Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 32 (2015), overruled on other grounds by Pridgen v. Office of Management and
Budget, 2022 MSPB 31.
On review, the appellant argues that even if the Cook exception does not
apply in this case, the case cited by the administrative judge, Fox v. Department
4
of the Army, 120 M.S.P.R. 529 (2014), does. PFR File, Tab 5 at 10-11; ID at 2-3.
The appellant argues on review that in Fox, the Board required the agency to meet
the Cook test without distinguishing between approved and unapproved leave.
PFR File, Tab 5 at 11 (citing Fox, 120 M.S.P.R. 529, ¶ 31). We are
not persuaded.
The employee in Fox was not charged with unapproved absences, but rather
with an inability to work a regular schedule. 120 M.S.P.R. 529, ¶ 31. In
addition, contrary to the appellant’s claim, the employee’s leave in Fox
apparently was approved. Id., ¶ 15. In this matter, because every one of the
specifications that comprise the agency’s charge of “continued excessive and
unexcused absences” indicate that the agency considered the appellant AWOL,
the Cook exception does not apply. IAF, Tab 6 at 57-59; Savage, 122 M.S.P.R.
612, ¶ 32. Thus, even though the agency used the word “excessive” in its charge,
it also alleged that the absences were “unexcused,” and the administrative judge
should not have required the agency to establish that the appellant was absent for
compelling reasons beyond his control. ID at 3. Instead, this case is comparable
to Savage, and the administrative judge should have adjudicated the appeal on
that basis. Savage, 122 M.S.P.R. 612, ¶ 32.
Thus, we vacate the initial decision insofar as it ordered cancellation of the
appellant’s removal. Because the proper adjudication of the issue, as set forth
below, may involve further factual determinations and will require credibility
determinations that the administrative judge, who has held a hearing and
personally observed the relevant testimony, is in the best position to make, we
remand the appeal to the regional office for further adjudication. See, e.g., Taylor
v. Department of Homeland Security , 107 M.S.P.R. 306, ¶ 13 (2007) (remanding
an appeal for the administrative judge to make additional findings based on
credibility).
In order for an agency to prove AWOL, the agency must show that the
employee was absent, and that his absence was not authorized or that his request
5
for leave was properly denied. Wesley v. U.S. Postal Service , 94 M.S.P.R. 277,
¶ 14 (2003). A charge of AWOL will not be sustained if the appellant presents
administratively acceptable evidence that he was incapacitated for duty during the
relevant period and had sufficient sick leave to cover the period of absence.
Thom v. Department of the Army , 114 M.S.P.R. 169, ¶ 5 (2010). The parties
stipulated to the fact that the appellant was absent on all the dates specified in the
notice of proposed removal, except for four dates on which the agency recorded
him as AWOL as a result of tardiness. ID at 3 n.1. However, the parties did not
agree on whether those absences were unexcused, and the appellant also argues
on review that the agency failed to show that it properly denied him leave. PFR
File, Tab 3 at 7-10, 15-16. By virtue of the September 7, 2016 LOR, the
appellant was on notice of the proper procedures to request leave and that he may
be disciplined for any failure to comply. IAF, Tab 6 at 69-71.
Although the administrative judge found it undisputed that the absences
specified in the notice of proposed removal were unexcused, he cited no evidence
in support of his finding. ID at 3. The appellant challenges this finding on
review. PFR File, Tab 5 at 7-9, 14-16. On remand, the administrative judge shall
determine whether the appellant properly requested leave on each of the instances
that he stipulated he was absent, and, if so, whether the agency properly denied
that request. Wesley, 94 M.S.P.R. 277, ¶ 14. The appellant also argues on review
that the agency should have to prove that his absences were “excessive.” Id.
at 4-5, 14. However, we do not interpret Savage to impose this additional
element. Savage, 122 M.S.P.R. 612, ¶ 32. Moreover, the notice of proposed
removal alleges that the appellant was AWOL for over 700 hours between
January 19 and June 9, 2017, which, if proven, would be excessive. IAF, Tab 6
at 57-58. Because he reversed the appellant’s removal, the administrative judge
did not consider the appellant’s allegation that the agency violated his right to
due process. ID at 9. He should consider the appellant’s due process claim
on remand.
6
The appellant did not prove his affirmative defenses of disability discrimination
or retaliation for equal employment opportunity activity.
The administrative judge found that the appellant failed to establish his
affirmative defenses of disability discrimination (under either a reasonable
accommodation or disparate treatment theory) or retaliation for equal employment
opportunity (EEO) activity. ID at 4-9. The appellant does not challenge these
findings on review. Upon remand, the administrative judge may readopt his
findings as appropriate, subject to reanalysis of the charge.
Concerning the appellant’s allegations of reasonable accommodation
disability discrimination, the administrative judge found that the agency had no
duty to accommodate the appellant. ID at 6-7. Specifically, he found no
evidence that the appellant had expressly or impliedly requested a reasonable
accommodation during the relevant time period. Id. The petition for review
provides no basis to disturb this finding. Nevertheless, because the appellant
argues that some of his absences should have been medically excused, and under
certain circumstances leave may be a reasonable accommodation, the
administrative judge should revisit his findings on this issue on remand in light of
his analysis of the AWOL charge. PFR File, Tab 5 at 15-16; see 29 C.F.R. app.
§ 1630.2(o) (explaining that leave may be a form of reasonable accommodation).
Likewise, the administrative judge found no evidence to support the
appellant’s claim of disparate treatment disability discrimination, and concluded
that the appellant failed to prove that his disability was a motivating factor in his
removal. ID at 7-8. We agree with the administrative judge’s analysis, which is
consistent with Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 35-42.
Regarding the appellant’s affirmative defense of retaliation for EEO
activity, the administrative judge found that the appellant failed to prove that his
EEO activity was a motivating factor in his removal. ID at 8-9. However, the
record reflects that the EEO activity at issue concerned alleged disability
7
discrimination, and thus was protected under the Rehabilitation Act. IAF, Tab 24
at 5, Tab 26 at 28. After the initial decision was issued, the Board overruled
previous case law and held that retaliation claims arising under the
Rehabilitation Act must be adjudicated under a but-for causation standard rather
than the less stringent motivating factor standard. Pridgen, 2022 MSPB 31,
¶¶ 44-47. Nevertheless, the appellant does not challenge the administrative
judge’s finding in his petition for review, and we find that analyzing the
appellant’s claim of retaliation for filing a disability discrimination complaint
under Pridgen does not require a different result. Thus, we affirm the
administrative judge’s finding, as modified, to find that the appellant did not
prove that his protected activity was a but-for cause of his removal. ID at 8-9.
The parties dispute on review whether the penalty of removal would be
reasonable for the charged misconduct. PFR File, Tab 3 at 11-14, Tab 5 at 16-18,
Tab 6 at 8-11. If the administrative judge finds that the agency proved its charge
on remand, he should determine whether the penalty of removal was appropriate.
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. | Jones_Tyler_M_AT-0752-17-0799-I-1__Remand_Order.pdf | 2024-02-21 | TYLER M. JONES v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-17-0799-I-1, February 21, 2024 | AT-0752-17-0799-I-1 | NP |
2,290 | https://www.mspb.gov/decisions/nonprecedential/Roth_MarcieDC-3443-17-0231-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCIE ROTH,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-3443-17-0231-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward Correia , Esquire, Washington, D.C., for the appellant.
Daniel Piccaluga and David Myers , 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 appeal for lack of jurisdiction. On petition for review, the
appellant argues that the agency committed prohibited personnel practices and
that she is entitled to a jurisdictional hearing. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
as 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.
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 you
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Roth_MarcieDC-3443-17-0231-I-1 Final Order.pdf | 2024-02-21 | MARCIE ROTH v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-3443-17-0231-I-1, February 21, 2024 | DC-3443-17-0231-I-1 | NP |
2,291 | https://www.mspb.gov/decisions/nonprecedential/Brown_Zimiman_R_AT-1221-19-0188-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZIMIMAN BROWN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-1221-19-0188-W-1
DATE: February 21, 2024
THIS ORDER IS NONPRECEDENTIAL1
Zimiman Brown , Huntsville, Alabama, pro se.
James J. Delduco , Esquire, Redstone Arsenal, Alabama, for the agency.
Rachel Heafner , Huntsville, Alabama, 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,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REVERSE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant holds an Information Technology Specialist position with the
Missile Defense Agency. Initial Appeal File (IAF), Tab 1 at 7. He filed the
instant appeal of an alleged prohibited personnel practice with the Board, and he
requested a hearing. Id. at 1-5. Specifically, he alleged that, during an
August 25, 2015 meeting, he expressed his belief that directions he was given
violated the Federal Acquisition Regulation (FAR) regarding “Inherently
Governmental Functions.” Id. at 5. He further alleged that, because he refused to
obey such directions, his second-level supervisor directed his first-level
supervisor to modify his performance appraisal for Fiscal Year (FY) 2015. Id.
The appellant also referenced the agency having committed prohibited personnel
practices against “at least” 15 other employees. Id.
In an Order on Jurisdiction and Proof Requirements, the administrative
judge informed the appellant that there was a question as to whether the Board
has jurisdiction over this appeal, apprised him of the elements and burden of
proving jurisdiction in an IRA appeal, and ordered him to file a statement with
accompanying evidence on the jurisdictional issue. IAF, Tab 3. The appellant
did not respond.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 4, Initial Decision (ID) at 1, 3. Specifically, the administrative judge found
that the appellant did not submit a copy of the whistleblowing complaint that he
claimed he filed with the Office of Special Counsel (OSC) or the closure letter
from OSC. ID at 3. In so finding, the administrative judge acknowledged that
the appellant had submitted a copy of an email message from OSC, which stated
as follows: “Attached are the closure letter and individual right of appeal letter2
for the above cited matter.” Id.; IAF, Tab 1 at 59. However, the administrative
judge indicated that the appellant “did not submit the referenced attachments,”
and, therefore, he was “unable to determine whether the ‘matter’ alluded to in
OSC’s email message [was] the same one described in the instant Board appeal,
or anything else about its substance.” ID at 3.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 7-8. In his petition, the appellant explains how he embedded
14 attachments within his Portable Document Format (PDF) initial appeal
document. PFR File, Tab 1 at 15-24. He argues that the administrative judge
failed to consider these attachments, and he provides copies of the same, to
include OSC’s closure letter and individual right of appeal letter. Id. at 3-14,
25-37; PFR File, Tab 4.
The Board’s e-Appeal Online system was not configured to process files
embedded within a PDF submission; accordingly, the administrative judge did not
review the embedded attachments/files.2 PFR File, Tab 3 at 1. The Board was
able to access some, but not all, of the files purportedly embedded within the
appellant’s initial submission. IAF, Tab 1. Among the accessible files were
copies of OSC’s closure letter and individual right of appeal letter. As stated, in
his initial decision, the administrative judge acknowledged that the appellant’s
initial filing had referenced these specific documents; however, the administrative
judge, unaware that the appellant had embedded files within his submission, did
not review the same. ID at 3; IAF, Tab 1 at 59. Given the unusual
circumstances, we find it appropriate to consider the subject letters, PFR File,
2 The Board’s prior e-filing system, “e-Appeal Online,” was decommissioned on
October 1, 2023. However, after the issuance of the initial decision in this appeal,
MSPB added language to e-Appeal Online warning users that embedded files were not
permitted. The Board’s new e-filing system—“e-Appeal”—similarly warns users that
embedded files are not permitted and also prevents users from including embedded files
in a pleading.3
Tab 1 at 34-37, which, as discussed herein, satisfy the appellant’s jurisdictional
burden.
ANALYSIS
To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA), an appellant must show by
preponderant evidence3 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations of the following: (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14. The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
For the following reasons, we find jurisdiction, and we remand this matter
for adjudication of the merits.
The appellant has proven by preponderant evidence that he exhausted his
administrative remedies before OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. The substantive requirements of exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion
through his initial OSC complaint, correspondence with OSC, or other evidence,
such as an affidavit or declaration attesting that the appellant raised with OSC the
substance of the facts in the Board appeal. Id., ¶ 11. The appellant must prove
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
exhaustion with OSC by preponderant evidence. 5 U.S.C. § 1214(a)(3); 5 C.F.R.
§ 1201.57(c)(1).
Here, the appellant made the following allegations in his response to OSC’s
preliminary determination to close the inquiry into his complaint: his supervisor
told him to provide contractual changes for the “CS4 project” to “DPF”; during
an August 25, 2015 meeting, a DPF representative told him that they would not
accept his changes unless he reported them to a particular contractor, and he
responded that the Government does not report to a contractor; 2 hours after the
meeting, his supervisor provided the contractual changes to the contractor; during
a September 8, 2015 phone call, he told his second-level supervisor what had
happened at the meeting and of the FAR regarding Inherently Governmental
Functions; his second-level supervisor directed his first-level supervisor to
change his FY 2015 performance appraisal; the Executive Director denied his
grievance of the performance appraisal as the Performance Review Authority; and
the Executive Director should have recused himself as the Performance Review
Authority because he had an “intimate” relationship with the contractor.4 PFR
File, Tab 4 at 35-51.5 Based on the above, we find that the appellant provided
OSC with a sufficient basis to pursue an investigation into his claim that his FY
2015 performance appraisal was taken in retaliation for disclosing FAR violations
and for refusing to obey an order that would require him to violate the FAR.
Therefore, we find that the appellant has met his burden of proving by
preponderant evidence that he exhausted his administrative remedies before OSC.
4 The appellant also alleged before OSC that he was taken off the CS4 project in
August 2015. PFR File, Tab 4 at 46, 48. Because the appellant has not discernably
raised this purported change in duties as a potential personnel action before the Board
in this appeal, we decline to address it further.
5 As stated, the addition of the OSC closure letters alone enables the appellant to satisfy
all of the jurisdictional requirements of an IRA appeal. PFR File, Tab 1 at 34-37.
We reference other documents submitted by the appellant on review only insofar as they
provide additional detail and clarity regarding the nature of his claims. 5
The appellant has nonfrivolously alleged that he made a protected disclosure
under 5 U.S.C. § 2302(b)(8).
A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016) . The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.
Here, we find that the appellant has nonfrivolously alleged that a
reasonable person in his position would believe that the appellant disclosed a
matter that evidenced a violation of the FAR .6 See Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (observing that 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).
Specifically, under 48 C.F.R. § 7.503, contracts shall not be used to perform
inherently governmental functions, which include the “direction and control of
6 The appellant’s allegation that the agency committed prohibited personnel practices
against 15 other employees, without more, is outside the scope of an IRA appeal. IAF,
Tab 1 at 5. In particular, the appellant does not discernably claim reprisal for reporting
such alleged prohibited personnel practices or for assisting any of the employees in the
exercise of any appeal, complaint, or grievance right. See Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 n.3 (2014) (explaining that, although 5 U.S.C.
§ 1221(a) limits Board appeal rights under 5 U.S.C. § 2302(b)(9)(A) to individuals who
exercised appeal, complaint, or grievance rights under (i), with regard to remedying a
violation of section 2302(b)(8), there is no such jurisdictional restriction for individuals
filing a Board appeal pursuant to 5 U.S.C. § 2302(b)(9)(B)).6
Federal employees.” Thus, we find that the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8).7
The appellant failed to nonfrivolously allege that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(D).
Next, we must consider the appellant’s allegation that he engaged in
protected activity by refusing to obey an order that would require him to violate
the FAR. When the events at issue in this appeal took place, 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 found that the
protection in section 2302(b)(9)(D) extended only to orders that would require the
individual to take an action barred by statute. Rainey v. Merit Systems Protection
Board, 824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016).8 Thus, under the law
in effect at the time the relevant events took place, the appellant’s claim that he
disobeyed an order that would require him to violate the FAR fell outside the
scope of 5 U.S.C. § 2302(b)(9)(D). Id. On June 14, 2017, the Follow the Rules
Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861, was signed into law. The FTRA
amended section 2302(b)(9)(D) by inserting “, rule, or regulation” after “law.”
Because the relevant events at issue in this appeal occurred prior to the June 14,
2017 enactment of the FTRA, we apply the pre -FTRA version of section 2302(b)
(9)(D). See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 19
(concluding that the FTRA does not apply to events that occurred before its
7 On remand, the administrative judge shall address whether the appellant’s disclosure
was made during the normal course of his duties. Indeed, if a disclosure is made in the
normal course of an employee’s duties, that disclosure may, depending on the
employee’s principal job functions, be subject to a higher burden in order to qualify as a
protected disclosure. 5 U.S.C. § 2302(b)(8), (f)(2); see Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 22.
8 In so finding, the Federal Circuit relied on the U.S. Supreme Court’s decision in
Department of Homeland Security v. MacLean , 574 U.S. 383, 391-95 (2015), which
held that the word “law” in 5 U.S.C. § 2302(b)(8)(A), referred only to a statute, and not
to a rule or regulation.7
enactment). Thus, the appellant’s claim that the agency retaliated against him for
refusing to obey an order that would require him to violate the FAR is outside the
scope of section 2302(b)(9)(D).
The appellant has nonfrivolously alleged that his protected disclosure was a
contributing factor in his FY 2015 performance appraisal.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. Under the knowledge/timing test,
an appellant 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 reasonable person
could conclude that the disclosure was a contributing factor in the personnel
action. Id.
Here, we find that the appellant has nonfrivolously alleged that his
second-level supervisor had knowledge of his protected disclosure on
September 8, 2015, when he purportedly told his second-level supervisor what
happened at the August 25, 2015 meeting and informed him of the FAR regarding
inherently governmental functions. PFR File, Tab 4 at 42. We further find that
the appellant has nonfrivolously alleged that his second-level supervisor directed
his first-level supervisor to modify his FY 2015 performance appraisal sometime
before his appraisal counseling on January 7, 2016. Id. at 4, 36; IAF, Tab 1 at 5.
Therefore, under the knowledge/timing test, we find that the appellant has
nonfrivolously alleged that his whistleblowing disclosure was a contributing
factor in his FY 2015 performance appraisal.9 See Salerno, 123 M.S.P.R. 230,
¶ 14 (observing that the Board has held that a personnel action taken within
9 At this jurisdictional stage, we need not resolve the appellant’s additional allegations
of contributing factor concerning the Executive Director’s purportedly biased denial of
his grievance of the performance appraisal. PFR File, Tab 4 at 35-36, 49-50.8
approximately 1 to 2 years of the appellant’s disclosures satisfies the timing
component of the knowledge/timing test); see also Aquino v. Department of
Homeland Security , 121 M.S.P.R. 35, ¶ 23 (2014) (observing that an appellant
can establish contributing factor by showing that an individual with knowledge of
the appellant’s protected disclosure influenced the deciding official accused of
taking the personnel action). A performance appraisal is a cognizable personnel
action under the statute. Rumsey v. Department of Justice , 120 M.S.P.R. 259,
¶ 16 (2013); see 5 U.S.C. § 2302(a)(2)(A)(viii).
Because we find that the appellant has exhausted his administrative
remedies with OSC and has made nonfrivolous allegations that the agency
modified his FY 2015 performance appraisal due to his protected disclosure, we
remand this IRA appeal for the appellant’s requested hearing and a decision on
the merits of his claim.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall order the appellant to resubmit the materials embedded
in his initial appeal filing to ensure a complete record.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Brown_Zimiman_R_AT-1221-19-0188-W-1 Remand Order.pdf | 2024-02-21 | ZIMIMAN BROWN v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-1221-19-0188-W-1, February 21, 2024 | AT-1221-19-0188-W-1 | NP |
2,292 | https://www.mspb.gov/decisions/nonprecedential/Millsap_Jeffery_W_CH-3443-18-0297-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY WADE MILLSAP,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
CH-3443-18-0297-I-1
DATE: February 21, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffery Wade Millsap , Wichita Falls, Texas, pro se.
Martin A. Gold , 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 his nonselection for lack of jurisdiction. On petition for
review, the appellant questions why the agency informed him about certain
aspects of the position, whether his veterans’ preference points were properly
applied, and whether his nonselection was based on his age. Petition for Review
(PFR) File, Tab 1 at 3-4.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. We AFFIRM the administrative
judge’s dismissal of the appeal for lack of jurisdiction and VACATE the part of
the initial decision addressing the merits of the appellant’s nonselection. See
Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(finding that the Board is without authority to decide the merits of an appeal over
which it lacks jurisdiction).
We specifically address the appellant’s new age discrimination and denial
of veterans’ preference claims that he raises on review. PFR File, Tab 1 at 4. As
to the former, we find that it does not provide a basis for review. The Board
lacks jurisdiction over age discrimination claims in the absence of an otherwise
appealable action. See Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980)
(finding 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).
As to the appellant’s denial of veterans’ preference allegation, he has raised
an inchoate Veterans Employment Opportunity Act of 1998 (VEOA) claim. PFR
File, Tab 1 at 4; see Weed v. Social Security Administration , 112 M.S.P.R. 323,2
¶ 12 (2009) (explaining that allegations of a VEOA violation should be liberally
construed); Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349, ¶ 7
(2008) (finding that the appellant’s general allegation that his veterans’
preference rights were violated was sufficient to meet the nonfrivolous allegation
standard required for establishing jurisdiction over a VEOA claim). We decline
to adjudicate his VEOA claim on review because the appellant raises it for the
first time in his petition for review and he has not received explicit notice as to
his burden of proving that claim.2 See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must
receive explicit information on what is required to establish an appealable
jurisdictional issue). Accordingly, we forward the appellant’s VEOA claim for
docketing as a separate VEOA appeal. Upon docketing, the administrative judge
should notify the appellant of his burden of proving his VEOA claim and
adjudicate the appeal as appropriate.
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
2 To establish Board jurisdiction over an appeal brought under VEOA, an appellant
must: (1) show that he exhausted his remedy with the Department of Labor and
(2) make nonfrivolous allegations that (a) he is a preference eligible within the meaning
of VEOA, (b) the action at issue took place on or after the October 30, 1998 enactment
date of VEOA, and (c) the agency violated his rights under a statute or regulation
relating to veterans’ preference. 5 U.S.C. § 3330a; Haasz, 108 M.S.P.R. 349, ¶ 6.
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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
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 | Millsap_Jeffery_W_CH-3443-18-0297-I-1 Final Order.pdf | 2024-02-21 | JEFFERY WADE MILLSAP v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. CH-3443-18-0297-I-1, February 21, 2024 | CH-3443-18-0297-I-1 | NP |
2,293 | https://www.mspb.gov/decisions/nonprecedential/Riley_Gary_DC-0752-16-0465-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY RILEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-16-0465-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby R. Devadoss , Esquire, and Megan Zeller , Esquire, Dallas, Texas, for
the appellant.
Lori L. Markle , 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
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify and supplement the administrative judge’s analysis of the
appellant’s claims of age discrimination and disparate penalties, we AFFIRM the
initial decision.
BACKGROUND
Effective March 19, 2016, the agency removed the appellant from his
Postmaster position based on a charge of improper conduct. Initial Appeal File
(IAF), Tab 4 at 15. The agency explained the basis for its charge in a narrative
statement that alleged, among other things, that the appellant engaged in an
extramarital affair with a female subordinate employee, Employee A. Id.
at 35-38. The agency further alleged that the appellant sent inappropriate text
messages to, inappropriately touched, and/or pursued a sexual relationship with
four other female subordinate employees, Employees B through E. Id. The
appellant appealed his removal to the Board and requested a hearing, which he
later waived. IAF, Tab 1 at 1-6, Tabs 22-23. He disputed the agency’s charge,
the existence of nexus, and the reasonableness of the imposed penalty, and he
raised claims of age discrimination and disparate penalties. IAF, Tab 24 at 4-28.
Based on the written record, the administrative judge issued an initial
decision affirming the removal action. IAF, Tab 30, Initial Decision (ID) at 1,
19. Specifically, he sustained the agency’s charge because he found that the
3
agency proved by preponderant evidence that the appellant engaged in improper
conduct by participating in an extramarital affair with Employee A, sending
inappropriate text messages to Employee B, and inappropriately touching
Employee D.2 ID at 2-14. In addition, the administrative judge found that the
appellant failed to prove the affirmative defense of age discrimination. ID
at 14-17. He further found that the penalty of removal is within the tolerable
bounds of reasonableness and promotes the efficiency of the service. ID at 17-19.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response, PFR File, Tab 7, to which the
appellant has replied, PFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved by preponderant evidence that the appellant engaged in
improper conduct involving Employee A.
A charge of improper conduct has no specific elements of proof; it is
established by proving that the appellant committed the acts alleged in support of
the “improper conduct” label. Alvarado v. Department of the Air Force ,
103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d (D.N.M. 2009), aff’d, 490 F.
App’x 932 (10th Cir. 2012). Here, it is undisputed that the appellant engaged in
an extramarital affair with Employee A. IAF, Tab 24 at 30-31 . In his petition for
review, the appellant argues that the agency failed to prove that having a
consensual, personal relationship with Employee A constituted improper conduct
that resulted in favoritism or an unsafe work environment. PFR File, Tab 3
at 20-22. For the following reasons, we agree with the administrative judge’s
finding that the agency proved by preponderant evidence that the appellant
engaged in improper conduct based on his relationship with Employee A. ID at 6.
2 The appellant does not dispute, and we find no reason to disturb, the administrative
judge’s finding that the agency did not prove that the appellant engaged in improper
conduct by sending “flirty” text messages to Employee C or by requesting to enter the
house of Employee E. ID at 9-10, 13-14.
4
The agency’s proposal notice characterized the appellant’s relationship
with Employee A as improper based on the following:
A sexual affair with a subordinate has an obvious potential to create
the appearance of impropriety and favoritism. Even if impropriety
and/or favoritism do not occur, they will be perceived when the
relationship becomes known. Such relationships create the
appearance of a conflict of interest, expose the Agency to multiple
forms of potential liability, damage the Agency’s ability to discipline
its workforce, make it impossible to effectively supervise or manage
the subordinate, interfere with the Agency’s mission to provide a
harassment-free atmosphere, and have a negative effect on employee
morale.
IAF, Tab 4 at 38. The narrative description of the agency’s charge makes clear
that favoritism is not an essential part of the charge and that, if the relationship
becomes known, there is an appearance of impropriety or favoritism sufficient to
prove improper conduct. Cf. Lachance v. Merit Systems Protection Board ,
147 F.3d 1367, 1371-73 (Fed. Cir. 1998) (finding that the agency set out its
charge of “unacceptable and inappropriate behavior by a supervisor” in
alternative terms such that the agency was required to prove either part). Thus,
the relevant inquiry is whether the agency proved that other employees knew
about the appellant’s relationship with Employee A, thereby creating an
appearance of impropriety or favoritism.
Here, Employees B and D and a witness declared under penalty of perjury
that they knew about the appellant’s personal relationship with Employee A.
IAF, Tab 5 at 53-54, 72, Tab 25 at 35. A declaration, subscribed as true under
penalty of perjury, if uncontested, proves the facts it asserts. Tram v. U.S. Postal
Service, 120 M.S.P.R. 208, ¶ 8 (2013). Although the appellant argues that the
employees’ declarations are not credible, he does not contest the substance of
their declarations regarding their knowledge of the affair. PFR File, Tab 3
at 14-20, 22, Tab 8 at 4-5. Further, we find that the appellant has not presented
any evidence below or on review to contradict the employees’ declarations that
they knew about the affair. See Tram, 120 M.S.P.R. 208, ¶ 8 (finding that the
5
appellant did not present credible evidence contradicting the declarations in
question).
Moreover, although the agency’s proposal notice alleged that several
employees did not feel safe at work based on speculation that Employee A’s
husband might react violently upon learning of the affair, we find that an unsafe
work environment is not an essential part of the agency’s charge. IAF, Tab 4
at 37; see Hicks v. Department of the Treasury , 62 M.S.P.R. 71, 74 (1994)
(finding that an agency is required to prove only the essence of its charge and
need not prove each factual specification in support of the charge), aff’d, 48 F.3d
1235 (Fed. Cir. 1995) (Table).
The agency proved by preponderant evidence that the appellant engaged in
improper conduct regarding Employees B and D.
Because the appellant waived his right to a hearing, the administrative
judge decided this case based on the written record. IAF, Tabs 22-23. In
sustaining the appellant’s alleged misconduct involving Employees B and D, the
administrative judge considered the documentary evidence and made credibility
determinations by applying the appropriate factors set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987).3 ID at 6-13. The
appellant challenges these credibility findings on review. PFR File, Tab 3
at 14-20, Tab 8 at 4-5.
Regarding the credibility of Employee B’s unsworn interview statement
and declaration made under penalty of perjury, the appellant claims the following:
the agency did not “validate or verify” her statements by providing an affidavit
from her in its closing submission or any witness testimony; Employee B stated in
her declaration that the appellant “never told me anything that was
3 The agency questions the propriety of relying on Hillen in this case because no
hearing was held and the appeal was decided based on the written record. PFR File,
Tab 7 at 9. However, the Board has approved utilizing the Hillen principles for
resolving credibility issues in such cases. Goode v. Defense Logistics Agency ,
45 M.S.P.R. 671, 674 n.2 (1990).
6
inappropriate”; and the administrative judge did not explain why he found a
difference in credibility regarding Employees B, C, and E. PFR File, Tab 3
at 15-16; ID at 7-9; IAF, Tab 5 at 52-55, 114-18. We find that the appellant has
failed to articulate a factor relevant to Employee B’s credibility. See Hillen,
35 M.S.P.R. at 458. Thus, we discern no reason to disturb the administrative
judge’s credibility findings regarding Employee B’s factual assertions that the
appellant sent her specific text messages. ID at 9; see Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s credibility findings when she considered the evidence as a
whole, drew appropriate references, and made reasoned conclusions). Moreover,
we find that Employee B’s declaration constitutes preponderant evidence that the
appellant sent her the text messages described in the proposal notice. Compare
IAF, Tab 4 at 36, with IAF, Tab 5 at 53; see Kewley v. Department of Health and
Human Services , 153 F.3d 1357, 1364 (Fed. Cir. 1998) (observing that hearsay
evidence may be accepted as preponderant evidence in Board proceedings, even
without corroboration, if the circumstances lend it credence).
Nonetheless, we find that the appellant’s admission in his declaration made
under penalty of perjury that he sent Employee B a text message stating that she
was his favorite and that he told her he would be “like a cheetah on a gazelle”
with her is sufficient to prove by preponderant evidence that he engaged in
improper conduct towards her. Compare IAF, Tab 4 at 36, with IAF, Tab 5 at 44;
see Tram, 120 M.S.P.R. 208, ¶ 8; see also Crawford v. Department of the
Treasury, 56 M.S.P.R. 224, 232 (1993) (finding that a partly sustained
specification was sufficient to sustain the agency’s charge). We further find that
Employee’s B’s subjective belief that the appellant did not tell her anything
inappropriate does not preclude finding that his remarks to her were inappropriate
because they clearly demonstrated favoritism and were unprofessional.
Regarding the credibility of Employee D’s initial declaration made during
the agency’s investigation into the appellant’s conduct, the appellant argues that
7
the administrative judge failed to consider that her declaration is inconsistent
with her subsequent declaration provided in the agency’s closing submission.
PFR File, Tab 3 at 17-20, Tab 8 at 4-5; ID at 11-13; IAF, Tab 5 at 57-60, Tab 25
at 34-39. Specifically, the appellant asserts that Employee D’s statement in her
initial declaration that the appellant “has not said or done anything to me of a
sexual nature,” conflicts with her statement in her subsequent declaration that he
“put his hand under my shirt and unhooked my bra.” PFR File, Tab 3 at 18, Tab 8
at 4-5; IAF, Tab 5 at 58, Tab 25 at 36. We find that this inconsistency is not
sufficient to overturn the administrative judge’s credibility determinations
because it does not raise doubt as to the truthfulness of Employee D’s assertions
of material fact. See Mithen v. Department of Veterans Affairs , 122 M.S.P.R.
489, ¶¶ 18, 22 (2015) (declining to disturb the administrative judge’s credibility
determinations when the witness provided consistent testimony concerning the
material facts as found by the administrative judge), aff’d, 652 F. App’x 971
(Fed. Cir. 2016); see also Hillen, 35 M.S.P.R. at 459 (explaining that
inconsistencies between a witness’s statements do not necessarily render his or
her testimony incredible). Regardless of whether Employee D considered this
touching to be sexual in nature, it is nevertheless inappropriate as alleged in the
proposal notice. IAF, Tab 4 at 37. Importantly, we find that Employee D’s
declarations are consistent concerning the material facts as found by the
administrative judge, i.e., that the appellant touched her waist, shoulder, hair, and
arm. ID at 12-13. Compare IAF, Tab 5 at 58, with IAF, Tab 25 at 37-38.
Further, we find that the appellant’s argument that Employee D did not complain
about his conduct until after the agency began its investigation is not a sufficient
basis to discount her credibility on material facts, considering all the factors.
PFR File, Tab 3 at 19; see Hillen, 35 M.S.P.R. at 458.
Moreover, for the reasons described in the initial decision, we find that the
agency presented preponderant evidence that the appellant engaged in improper
conduct by inappropriately touching Employee D. ID at 10-13. In addition, we
8
agree with the administrative judge’s finding that the appellant’s proven
misconduct regarding Employees A, B, and D is sufficient to sustain the agency’s
charge. ID at 14; see Burroughs v. Department of the Army , 918 F.2d 170, 172
(Fed. Cir. 1990) (finding that, when more than one event or factual specification
is set out to support a single charge of misconduct, proof of one or more, but not
all, of the supporting specifications is sufficient to sustain the charge).
The appellant has failed to prove his affirmative defense of age discrimination.
The appellant reasserts on review his affirmative defense of age
discrimination. PFR File, Tab 3 at 22-24; IAF, Tab 24 at 24-25, 35-37. An
appellant bears the burden of proving his affirmative defense by preponderant
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). A Federal employee may prove age
discrimination by establishing that age was a factor in the challenged personnel
action. Wingate v. U.S. Postal Service , 118 M.S.P.R. 566, ¶ 7 (2012). In
determining whether an appellant has met his initial burden to show a motivating
factor, the Board must consider all of the evidence together as a whole without
sorting evidence into different piles, labeled “direct” or “indirect,” that are
evaluated differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R.
161, ¶ 36 (2017).
Here, in analyzing the appellant’s age discrimination claim, the
administrative judge properly evaluated the appellant’s comparator evidence, and
concluded that he did not prove his claim. ID at 14-17 . Although the
administrative judge discussed the distinction between direct and circumstantial
evidence, there is no allegation that he disregarded any evidence because it was
not direct or circumstantial. IAF, Tab 21 at 2-3; see Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶24. We find that the administrative
judge properly considered the record evidence as a whole regardless of its
characterization. Specifically, the administrative judge considered the appellant’s
affidavit in which he identified potential comparator employees for purposes of
9
proving discrimination based on disparate treatment. ID at 16; IAF, Tab 24
at 35-36.
However, in analyzing the appellant’s age discrimination claim, the
administrative judge erroneously considered his disparate penalties claim and
identified the legal standards for a disparate penalties claim set forth in Lewis v.
Department of Veterans Affairs , 113 M.S.P.R. 657, ¶ 6 (2010), and Voss v.
U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013). ID at 15-16; IAF, Tab 24
at 20-21. The appellant’s allegation that the agency treated him disparately to
other employees, without a claim of prohibited discrimination, is an allegation of
disparate penalties to be proven by the appellant and considered by the Board in
determining the reasonableness of the penalty, but it is not an affirmative defense.
Vargas v. U.S. Postal Service , 83 M.S.P.R. 695, ¶ 9 (1999). The “consistency of
the penalty with those imposed upon other employees for the same or similar
offenses” is only one of the factors for consideration in determining the
reasonableness of the penalty. Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305 (1981). We modify the initial decision to clarify that the appellant’s
disparate penalties claim is not an affirmative defense and should be considered
instead in assessing the reasonableness of the penalty. We address his disparate
penalties claim in the next section.
We further modify the initial decision to analyze the appellant’s
comparator evidence for purposes of his age discrimination claim under the
correct legal standard set forth in Ly v. Department of the Treasury , 118 M.S.P.R.
481, ¶ 10 (2012). For another employee to be similarly situated, a comparator
must have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Id. Based on our review of the
appellant’s affidavit, we find that he failed to describe the potential comparator
employees in sufficient detail to support a finding that they were similarly
situated. IAF, Tab 24 at 35-36. For example, the appellant did not state whether
10
the employees reported to the same supervisor as he did. Further, none of the
employees were a supervisor who, like the appellant, engaged in improper
conduct regarding three subordinate employees. Moreover, we find that the
appellant’s conclusory assertions on review that there was no reason for his
removal and that the agency treated him differently from other employees accused
of similar misconduct fail to meet his burden of proving that age was a factor in
his removal.4 PFR File, Tab 3 at 22-24.
The agency proved nexus and the reasonableness of the penalty.
In an adverse action appeal, the agency generally must prove that there is a
nexus, i.e., a clear and direct relationship between the articulated grounds for the
adverse action and either the appellant’s ability to accomplish his duties
satisfactorily or some other legitimate Government interest. Ellis v. Department
of Defense, 114 M.S.P.R. 407, ¶ 8 (2010). Here, we agree with the administrative
judge’s finding of nexus because the appellant’s misconduct occurred with
subordinates and, in part, at work. ID at 17; see Parker v. U.S. Postal Service ,
819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there was a sufficient nexus
between an employee’s conduct and the efficiency of the service when the
conduct occurred, in part, at work). The appellant’s general disagreement with
this finding provides no basis for review. PFR File, Tab 3 at 8.
When, as in the instant appeal, all of the agency’s charges have been
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all the relevant Douglas factors5 and exercised
management discretion within the tolerable limits of reasonableness. Ellis,
114 M.S.P.R. 407, ¶ 11. The Board will modify or mitigate an agency-imposed
4 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding this claim, we do not reach the question of whether retaliation
was a “but-for” cause of the removal action. See Pridgen, 2022 MSPB 31, ¶¶ 20-22.
5 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of
12 factors that are relevant in assessing the appropriateness of an agency-imposed
penalty for an employee’s misconduct.
11
penalty only if it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Id. For the following
reasons, we agree with the administrative judge’s findings that the agency
properly considered the relevant Douglas factors and that the penalty of removal
is within the tolerable bounds of reasonableness. ID at 17-19.
In the decision letter, the deciding official found that the appellant’s past
work record, performance on the job, and length of service did not outweigh the
seriousness of his misconduct. IAF, Tab 4 at 16. In particular, she explained that
the appellant’s misconduct was egregious and directly related to his job duties
and responsibilities to supervise subordinate employees in an appropriate and
effective manner, and that, as a Postmaster, he is held to a higher standard of
behavior. Id. She further stated that both she and the appellant’s immediate
supervisor have lost trust in the appellant’s judgment, professionalism, and
continued ability to perform his assigned duties, and that she was not aware of
other employees charged with similar misconduct. Id. In addition, she found no
potential for the appellant’s rehabilitation due to the severity of his misconduct,
and she expressed her belief that an alternative sanction would not be adequate,
despite his lack of a disciplinary record. Id. at 16-17.
The appellant identified three potential comparators for purposes of a
disparate penalties claim, which he reasserts on review. PFR File, Tab 3
at 11-14; IAF, Tab 24 at 20-21. The administrative judge relied on Lewis,
113 M.S.P.R. 657, ¶ 6, in analyzing the alleged comparators. ID at 15-16.
However, since the issuance of the initial decision, the Board has issued Singh v.
U.S. Postal Service , 2022 MSPB 15. We modify the initial decision to analyze
the appellant’s disparate penalties claim consistent with Singh. The fact that two
employees come from different work units or supervisory chains remains an
important factor in determining whether it is appropriate to compare the penalties
they are given. Id., ¶ 13. In most cases, employees from another work unit or
supervisory chain will not be proper comparators. Id. There must be a close
12
connection between the misconduct or some other factor for an employee from
another work unit or supervisory chain to be a proper comparator for disparate
penalty purposes. Id. Here, the appellant has failed to allege a valid comparator
because none of the proffered employees allegedly engaged in “the same or
similar offenses.” Douglas, 5 M.S.P.R. at 305; see Singh, 2022 MSPB 15, ¶ 17
(observing that the Board should not conduct a disparate penalty analysis beyond
the same or similar offenses). Therefore, we find that the appellant has failed to
establish that the agency imposed disparate penalties. We further find that the
deciding official’s statement that she was not aware of other employees charged
with similar misconduct shows that the agency considered the corresponding
Douglas factor. IAF, Tab 4 at 16; see Douglas, 5 M.S.P.R. at 305.
In addition, the appellant argues on review that the agency failed to
consider his length of service, prior military service, lack of a disciplinary record,
excellent performance, and potential for rehabilitation. PFR File, Tab 3 at 8-11.
He references his submission of affidavits as evidence of his excellent
performance, character, and leadership skills. Id. at 9-11; IAF, Tab 24 at 30-48.
The appellant also challenges the validity of the deciding official’s belief that his
actions were “deliberate, repeated and improper” because the administrative judge
found that the agency failed to prove the alleged misconduct regarding
Employees C and E. PFR File, Tab 3 at 8; IAF, Tab 4 at 16.
An appellant’s disagreement with the weight given to particular factors
does not provide a basis to disturb the initial decision. Ellis, 114 M.S.P.R. 407,
¶ 11. Here, the deciding official considered the appellant’s length of service, lack
of a disciplinary record, and performance, but justifiably found that they were
outweighed by the seriousness of his misconduct that directly related to his
supervisory duties. IAF, Tab 4 at 16; see Singh, 2022 MSPB 15, ¶ 18 (observing
that the Board has frequently stated that the nature and seriousness of the offense,
and its relation to the employee’s duties, position, and responsibility, is the most
important factor in assessing the reasonableness of a penalty); see also Bowman
13
v. Small Business Administration , 122 M.S.P.R. 217, ¶ 12 (2015) (explaining that
supervisors are held to a higher standard of conduct). Moreover, we find that the
appellant has failed to establish that the deciding official misjudged his
rehabilitative potential when the agency had lost trust in his judgment,
professionalism, and ability to perform his supervisory duties. IAF, Tab 4
at 16-17; cf. Von Muller v. Department of Energy , 101 M.S.P.R. 91, ¶ 21 (finding
that the Board may abandon deference to an agency’s penalty determination when
the deciding official misjudges the appellant’s rehabilitative potential), aff’d,
204 F. App’x 17 (Fed. Cir. 2006). Finally, although we consider the agency’s
failure to prove the appellant’s alleged misconduct regarding Employees C and E,
we find that a penalty of removal is within the bounds of reasonableness given the
seriousness of the sustained misconduct. See Payne v. U.S. Postal Service,
72 M.S.P.R. 646, 650-51 (1996) (finding that the Board must consider the
agency’s failure to sustain all of its supporting specifications when determining
the reasonableness of the penalty).
Accordingly, we affirm the initial decision that sustained the agency’s
removal action.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Riley_Gary_DC-0752-16-0465-I-1__Final_Order.pdf | 2024-02-20 | GARY RILEY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-16-0465-I-1, February 20, 2024 | DC-0752-16-0465-I-1 | NP |
2,294 | https://www.mspb.gov/decisions/nonprecedential/You_JunYuSF-0353-17-0571-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUNYU YOU,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-17-0571-I-1
DATE: February 20, 2024
THIS ORDER IS NONPRECEDENTIAL1
Eddie Reyna , Millbrae, California, for the appellant.
Deborah C. Winslow , Esquire, San Francisco, California, 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 restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant is a Supervisor of Customer Services at the agency’s Mendell
Carrier Annex in San Francisco, California. Initial Appeal File (IAF), Tab 5
at 32. On June 9, 2017, he injured his back while lifting a parcel, and on June 14,
2017, he submitted a Form CA-1 (Federal Employee’s Notice of Traumatic Injury
and Claim for Continuation of Pay/Compensation) notifying the agency of his
injury. Id. at 44-46. He also submitted a letter from his treating physician, who
indicated that the appellant was unable to work as of June 10, 2017, but could
return to work on an unspecified date. Id. at 31. The agency controverted the
appellant’s claimed injury, but the Office of Workers’ Compensation Programs
(OWCP) ultimately accepted his claim for “sprain of ligaments of lumbar spine,
initial encounter.” Id. at 15-16, 35.
Meanwhile, on June 15, 2017, the appellant submitted a Form CA-17 (Duty
Status Report) advising the agency of his limitations. Id. at 38. The report
indicated that the appellant could return to work as of June 15 with the following
limitations: no climbing, kneeling, bending/stooping, or twisting; intermittent
lifting of 10 pounds for 2 hours daily; and 2 hours daily of sitting, standing,
walking, pushing/pulling, simple grasping, and fine manipulation (including
keyboarding). The report also called for icing 5 times per day, modified work
and medication, and back support. Id.
That same day, the appellant’s manager prepared an Offer of Modified
Assignment (Limited Duty). Id. at 30. The duties of the modified assignment
were listed as supervising carriers (8 hours intermittent) and lifting/twisting/fine
manipulation (8 hours intermittent, weight limit unspecified). Id. The physical
requirements were listed as sitting, standing, walking, and pushing/pulling, each
for 2 hours intermittent. Id. The appellant did not return to duty at that time and
was charged with absence without leave (AWOL) beginning June 15, 2017. Id.
at 106. On June 19, 2017, he contacted Human Resources employees, requesting
assistance in having the job offer mailed to him. Id. at 29. 2
On June 27, 2017, the appellant submitted a new CA-17 with the following
limitations: no climbing, kneeling, bending/stooping, or twisting; intermittent
and alternate lifting of 10 pounds or less; sitting, standing, and walking for 1 hour
per day; and 2 hours of pushing/pulling, simple grasping, and fine manipulation.
Id. at 39. The report also called for icing 3 times daily, physical therapy twice a
day for 3 weeks, and use of a back support. Id. That same day, the appellant was
presented with another modified duty job offer, with duties listed as “do
ECC/correct clock ring errors/answer phones” for 4 hours intermittent.2 Id. at 24.
The physical requirements were listed as sitting, walking, standing, and lifting
(no more than 10 pounds), each for 1 hour intermittent. Id.
By letter dated July 5, 2017, the appellant’s manager informed him that he
had been instructed to report to work since June 15, 2017, per his doctor’s
instructions, and that he was still on AWOL. IAF, Tab 1 at 7. She sent the
appellant copies of the job offers from June 15 and June 27, with instructions to
sign and return them immediately. Id. On July 6, 2017, the appellant
acknowledged receipt of the June 27 offer and declined it, stating: “[T]he job
offer is not within my medical restrictions. Does not specify in detail the duties
to be performed and fails to show what restrictions the job offer is based on.” Id.
The appellant did not return to duty and remained in AWOL status. Id. at 106.
On July 7, 2017, the agency issued another modified duty offer for 3 hours
of work, performing tasks such as ECC, correcting clock ring errors, answering
telephones, and overtime administration. Id. at 22. The physical requirements
were listed as 1 hour each of intermittent lifting/carrying up to 10 pounds, sitting,
and standing/walking. Id. On July 14, 2017, the appellant accepted the offer
“under protest,” stating that “the job duties are not within my sitting, bending,
2 The record does not indicate what “do[ing] ECC” entails, but it may refer to
“Enterprise Customer Care.” Postal Customers may report concerns via computer
through the ECC application process on USPS.com or by calling the Customer Care
Center and speaking with an agent. See
http://about.usps.com/who-we-are/financials/annual-reports/fy2017.pdf at 14, 16-18
(last visited on Feb. 20, 2024). 3
stooping, and twisting medical restrictions.” Id. The appellant again did not
report to duty. Id. at 106.
On July 13, 2017, the appellant filed an appeal with the Board alleging that
he was denied restoration. IAF, Tab 1 at 2. He also indicated on the appeal form
that he was contesting his placement in AWOL status and a “reduction in grade,
pay, or band.” Id. In the acknowledgment order, the administrative judge
advised the appellant of the jurisdictional standard for partial restoration appeals
but did not address the appellant’s other claims. IAF, Tab 2. Nonetheless, the
appellant asserted in his response that the agency had imposed a constructive
suspension and reduction in pay. IAF, Tab 6 at 2. On August 25, 2017, the
administrative judge issued a summary of the status conference held the previous
day. IAF, Tab 9. The summary did not mention any issues other than the alleged
denial of restoration but did not specifically state that other issues were excluded.
IAF, Tab 9.
On November 8, 2017, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction based on the written record. IAF,
Tab 12, Initial Decision (ID). In dismissing the appeal, the administrative judge
found that the Board lacked jurisdiction over the appeal under 5 C.F.R.
§ 353.304(c) because the appellant did not make a nonfrivolous allegation that he
was denied restoration. ID at 8-9. The administrative judge also addressed for
the first time the appellant’s claims that he had been improperly charged with
AWOL, constructively suspended, and reduced in grade or pay but found he had
not established jurisdiction over those matters. ID at 9-11.
On petition for review, the appellant objects that the administrative judge
incorrectly attributed certain actions to the physician who wrote the June 14, 2017
letter and that it was another treating physician who prepared the June 15, 2017
CA-17 and met with him again on June 27, 2017. Petition for Review (PFR) File,
Tab 1 at 1. He again asserts that neither the June 15 nor the June 27 offer was
within his medical restrictions and claims that the agency improperly denied him4
continuation of pay (COP) during the period from June 10 to July 13, 2017. Id.
at 1, 3. He contends the agency’s actions were contrary to a November 13, 2017
letter from the Department of Labor and part of a calculated effort to
constructively suspend him during the COP period. Id.
The agency filed a response to the appellant’s petition. PFR File, Tab 3.
In his timely filed reply to the agency’s response, the appellant provides a copy of
a November 13, 2017 letter from OWCP, which states that the June 15, 2017
limited-duty offer “cannot be enforced as written” because it “does not specify a
weight limit in specific pounds as to lifting and twisting,” as required by the
CA-17 issued on that date. PFR File, Tab 4 at 4.
ANALYSIS
The appellant has made a nonfrivolous allegation that he was denied restoration
for a period beginning June 15, 2017 .
The Federal Employees’ Compensation Act provides, inter alia, that
Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. Kingsley v. U.S. Postal
Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has
granted the Office of Personnel Management (OPM) the authority to issue
regulations governing employing agencies’ obligations in this regard. 5 U.S.C.
§ 8151(b). Pursuant to that authority, OPM has issued regulations requiring
agencies to make certain efforts toward restoring employees with compensable
injuries to duty, depending on the timing and extent of their recovery. 5 C.F.R.
§ 353.301; see Smith v. U.S. Postal Service , 81 M.S.P.R. 92, ¶ 6 (1999).
The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights
granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range” of their
regular duties, have “recovered sufficiently to return to part-time or light duty or
to another position with less demanding physical requirements.” Section
353.301(d) further requires agencies to “make every effort to restore in the local5
commuting area, according to the circumstances in each case, an individual who
has partially recovered from a compensable injury and who is able to return to
limited duty.” This means, “[a]t a minimum,” treating individuals who have
partially recovered from a compensable injury substantially the same as other
disabled individuals under the Rehabilitation Act of 1973, as amended. Id.; see
29 U.S.C. § 791. The Board has interpreted the regulation to require that an
agency must at least search within the local commuting area for vacant positions
to which it can restore a partially recovered employee and to consider him for any
such vacancies. Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345, ¶ 12 (2010).
Although 5 U.S.C. § 8151 does not itself provide for a right to appeal to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301. The
regulation provides that a partially recovered employee “may appeal to [the
Board] for a determination of whether the agency is acting arbitrarily and
capriciously in denying restoration.” 5 C.F.R. § 353.304(c). The Board’ s own
regulations in turn provide that, to establish jurisdiction over an appeal arising
under 5 C.F.R. § 353.304, an appellant must make nonfrivolous allegations
regarding to the substantive jurisdictional elements. 5 C.F.R. § 1201.57(a)(4),
(b). Accordingly, to establish Board jurisdiction over an appeal arising under
5 C.F.R. § 353.304, an appellant must make nonfrivolous allegations that (1) he
was absent from his position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part-time basis, or to return to work in a
position with less demanding physical requirements than those previously
required of him; (3) the agency denied his request for restoration; and (4) the
denial was arbitrary and capricious. Hamilton v. U.S. Postal Service ,
123 M.S.P.R. 404, ¶ 12 (2016).
The administrative judge found that the appellant met his burden regarding
the first two jurisdictional elements but failed to make a nonfrivolous allegation
that he was denied restoration. ID at 8-10. As noted above, however, the6
appellant has submitted a November 13, 2017 letter from OWCP, which
determined that the agency’s June 15, 2017 limited-duty offer did not conform to
the physical restrictions set forth in the CA -17 submitted on that date. PFR File,
Tab 4 at 4. In light of that new evidence, we find the appellant has made a
nonfrivolous allegation that the agency denied his restoration for a period
beginning June 15 and continuing until at least June 27, 2015, when the agency
issued its second modified duty offer. Thus, the third jurisdictional element has
been satisfied.
We therefore proceed to the question of whether the appellant has
established the fourth jurisdictional element by making a nonfrivolous allegation
that the denial of restoration was arbitrary and capricious. Since the issuance of
the initial decision, the Board has clarified that, for purposes of establishing
jurisdiction under 5 C.F.R. § 353.304(c), a denial of restoration is arbitrary and
capricious if and only if the agency failed to meet the minimum requirement of
5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
him for any such vacancies. Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20
(overruling Latham v. U.S. Postal Service , 117 M.S.P.R. 400 (2012)). The parties
have not as yet had the opportunity to present evidence and argument as to
whether the agency complied with its obligations under 5 C.F.R. § 353.301(d).
Accordingly, we vacate the initial decision and remand the case for further
development of the record on this issue.
The Board lacks jurisdiction over the appellant’s remaining claims .
As noted above, the appellant has argued that the agency subjected him to a
constructive suspension. However, the Board has held that when an agency fails
to assign work to a partially recovered employee, thus requiring his absence from
work, the employee may not contest the agency’s actions as a suspension because
his rights and remedies are subsumed in the restoration appeal process.
Bohannon v. U.S. Postal Service , 115 M.S.P.R. 629, ¶ 11 (2011); Kinglee v. U.S.7
Postal Service, 114 M.S.P.R. 473, ¶¶ 19-22 (2010). Hence, we lack jurisdiction
over the appellant’s constructive suspension claim.
We also lack jurisdiction to consider the appellant’s challenge to his
placement on AWOL. It is well settled that placement on AWOL is not itself an
action appealable to the Board. Rose v. Department of Defense , 118 M.S.P.R.
302, ¶ 14 (2012). Moreover, there is no evidence to support the appellant’s
suggestion that his placement in an AWOL status resulted in an appealable
reduction in grade or pay. Accordingly, the proceedings on remand will be
limited to the appellant’s claim that the agency denied him restoration in
violation of 5 C.F.R. § 353.301(d).3
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.
3 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.8 | You_JunYuSF-0353-17-0571-I-1 Remand Order.pdf | 2024-02-20 | JUNYU YOU v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-17-0571-I-1, February 20, 2024 | SF-0353-17-0571-I-1 | NP |
2,295 | https://www.mspb.gov/decisions/nonprecedential/Jackson_ArnellaAT-0353-18-0415-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARNELLA JACKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-18-0415-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey G. Orr , Riverdale, Georgia, for the appellant.
W. Randle Smith , 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 restoration appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Jackson_ArnellaAT-0353-18-0415-I-1 Final Order.pdf | 2024-02-20 | ARNELLA JACKSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-18-0415-I-1, February 20, 2024 | AT-0353-18-0415-I-1 | NP |
2,296 | https://www.mspb.gov/decisions/nonprecedential/Johnson_LarryPH-0752-19-0109-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY JOHNSON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-19-0109-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brien P. Connolly , Esquire, Danielle Gifford , Esquire, and Peter H. Noone ,
Esquire, Belmont, Massachusetts, for the appellant.
Amanda R. Stogsdill , Kristen Fredricks , and Michelle M. Murray,
Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which mitigated the appellant’s
removal to a 30-day suspension. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the administrative judge’s 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).
concerning the penalty and FIND that removal is the maximum reasonable
penalty. We further DENY the appellant’s cross petition for review and AFFIRM
the initial decision as MODIFIED concerning charges 1-3.
BACKGROUND
The appellant was formerly employed as a GS-15 Supervisory Special
Agent in Charge in the agency’s Office of the Inspector General (OIG), Policy
and Analysis Division in Baltimore, Maryland. Initial Appeal File (IAF), Tab 31
at 11. On October 15, 2018, the agency proposed his removal based on seven
charges: (1) unauthorized queries of social security records; (2) improper access
to social security records due to failure to obtain proper documentation;
(3) unauthorized disclosure of social security records; (4) lack of candor;
(5) failure to submit honest and complete financial disclosure forms; (6) misuse
of official position; and (7) inappropriate conduct. IAF, Tab 21 at 39-49. By
letter dated December 7, 2018, the agency sustained all of the charges and
specifications and removed the appellant, effective December 8, 2018. Id.
at 50-56.
The appellant filed a Board appeal challenging his removal and raised
affirmative defenses of reprisal for engaging in protected activity and
discrimination based on his race and color. IAF, Tab 1 at 9-10. After holding the
appellant’s requested hearing, the administrative judge issued an initial decision,
sustaining five of the seven charges and mitigating the penalty to a 30-day
suspension. IAF, Tab 40, Initial Decision (ID). In particular, the administrative
judge sustained charges 1-3 and 6-7. Although he sustained charges 1-3, the
administrative judge did not sustain the majority of the specifications because he
found that they took place 4 to 7 years ago when the appellant was in a different
non-management position and that it was therefore inequitable to punish the
appellant for such misconduct. ID at 11-13. Regarding charge six, the
administrative judge sustained one of the two specifications in which he found2
that the appellant solicited donations from his subordinate employees for his
nonprofit organization. ID at 18. Regarding charge seven, he sustained two of
the three specifications in which he found that the appellant sent OIG documents
to his wife to obtain her assistance with performing his official duties and, during
fiscal years 2012 through 2017, he spent a considerable amount of official duty
time per week working on business for his nonprofit organization. ID at 17-19.
Finally, the administrative judge found that the agency failed to prove its charges
of lack of candor or failure to submit honest and complete confidential financial
disclosure forms. ID at 14-17. Regarding the appellant’s affirmative defenses,
the administrative judge found that the appellant’s alleged protected activity in
challenging the agency’s purported racist hiring practices never occurred because
he never sent the email or gave the speech. ID at 20-21. He further found that
the appellant failed to prove his claim of discrimination based on his race or
color. ID at 21-22.
The agency has filed a petition for review, disputing the administrative
judge’s finding that a 30-day suspension is the maximum reasonable penalty for
the sustained charges and asserting that the administrative judge improperly
dismissed the earlier specifications in support of charges 1-3. Petition for Review
(PFR) File, Tab 1. The appellant has opposed the agency’s petition and filed a
cross petition for review and the agency has filed a reply to the appellant’s
opposition and a response to the appellant’s cross petition for review. PFR File,
Tabs 4, 7, 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has complied with the interim relief order.
The appellant has filed a pleading challenging the agency’s certification of
compliance with the interim relief order and requesting that the Board order the
agency to comply. PFR File, Tab 5. The Board’s regulations do not provide for
petitions for enforcement of interim relief orders; such petitions apply only to3
final Board decisions. 5 C.F.R. § 1201.182(a). The Board’s regulations,
however, do allow an appellant to challenge an agency’s certification that it has
provided interim relief, and the Board may dismiss a petition for review if it finds
the agency to be in noncompliance with its interim relief obligations. 5 C.F.R.
§ 1201.116(b), (e).
Here, as part of the interim relief order in the initial decision, the
administrative judge ordered the agency to effect the appellant’s appointment to
his position as a GS-15 Special Agent in Charge and to provide him with pay and
benefits of the position as of the date of the initial decision. ID at 25-26. The
appellant contends that the agency has not complied with this order because,
although it restored him to his former title and grade, he does not have the same
duties, responsibilities, or supervisory authority. PFR File, Tab 5 at 5. In
particular, he asserts that he is not permitted to telework, has no supervisory
authority, has been assigned special projects, and the agency has not restored his
law enforcement authority, weapon, credentials, or systems access. Id. However,
the Board’s authority to review compliance with an interim relief order does not
extend to reviewing whether an appellant has been given appropriate duties or
work assignments. See Cook v. Department of the Army , 105 M.S.P.R. 178, ¶ 7
(2007). In any event, we find that the agency has provided a compelling reason
for returning the appellant to work under restricted job duties. See, e.g., Purzycki
v. General Services Administration , 81 M.S.P.R. 188, ¶ 9 (1999) (noting that,
although an employee should generally be reinstated to the position from which
he was separated, an agency should be found in compliance with an interim relief
order if it can show that it had a compelling reason for assigning duties other than
those assigned prior to an appellant’s separation). According to the agency, the
appellant’s position requires a top secret security clearance and the appellant was
required to undergo a periodic re-investigation as of April 2019. PFR File, Tab 8
at 5-6. See Faucher v. Department of the Air Force , 96 M.S.P.R. 203, ¶ 4 n.2
(2004) (finding that the agency established a compelling reason for not assigning4
the appellant flight-line duties where it had withdrawn the appellant’s flight-line
badge when it removed him from Federal service).
The administrative judge erred in applying the doctrine of laches regarding
charges 1 - 3.
In charge 1, the agency alleged that the appellant made unauthorized
queries of Social Security Administration (SSA) records on 27 occasions between
January 11, 2012, and November 29, 2017. IAF, Tab 21 at 39-41. In charge 2,
the agency alleged that the appellant improperly accessed SSA records without
obtaining proper documentation to support the query on three occasions on
December 21, 2011, and once on May 3, 2018. Id. at 41. In charge 3, the agency
alleged that for each of the specifications underlying charges 1 and 2, excluding
charge 2, specification 1, the appellant made unauthorized disclosures of SSA
records to law enforcement and non -law enforcement entities. Id. at 41-42. The
administrative judge found that the agency proved that the appellant made
unauthorized queries and disclosures of social security records in 2017 and 2018.
ID at 12. However, the administrative judge found that the alleged queries and
disclosures made between 2011 to 2014 were barred by the equitable defense of
laches. ID at 12-13. On review, the agency asserts that such a finding was
erroneous because the appellant failed to establish an unreasonable delay or
prejudice. PFR File, Tab 1 at 17-18. As set forth below, we agree.
The equitable defense of laches bars an action when an unreasonable delay
in bringing the action has prejudiced the party against whom the action is taken.
See, e.g., Social Security Administration v. Carr , 78 M.S.P.R. 313, 330 (1998),
aff’d, 185 F.3d 1318 (Fed. Cir. 1999). The party asserting laches must prove both
unreasonable delay and prejudice. Id.; see Nuss v. Office of Personnel
Management, 974 F.2d 1316, 1318 (Fed. Cir. 1992); Hoover v. Department of the
Navy, 957 F.2d 861, 863 (Fed. Cir. 1992); Pepper v. United States , 794 F.2d
1571, 1573 (Fed. Cir. 1986). Here, the administrative judge merely found that it
would be inequitable to punish the appellant based upon misconduct that took5
place significantly earlier in his career. ID at 13. However, he made no finding
that the appellant was prejudiced by any delay on behalf of the agency in bringing
the charges or that any such delay was unreasonable. To the contrary, we find
that the appellant has not shown that he was prejudiced by any delay given his
testimony that he was able to discern who he ran queries for regarding each of the
specifications. Hearing Transcript (HT) at 228-29. Further, the record reflects
that the agency obtained statements from many of the individuals for whom the
appellant ran the queries. See, e.g., Cornetta v. United States , 851 F.2d 1372,
1378 (Fed. Cir. 1988) (noting that prejudice may arise due to the loss of records,
destruction of evidence, fading memories, or unavailability of witnesses).
Moreover, delay alone does not constitute laches, rather, the delay must be
unreasonable and unexcused. Id. at 1377-78. In light of our finding that the
appellant failed to establish prejudice, we need not decide whether any delay by
the agency was unreasonable and unexcused. Finally, to the extent the appellant
argues that he was prejudiced because agency management condoned and
encouraged his behavior, PFR File, Tab 4 at 9, such an argument is properly
considered as a possible mitigating factor in the penalty analysis, Canada v.
Department of Homeland Security , 113 M.S.P.R. 509, ¶¶ 18-19 (2010).
The agency proved charge 1: Unauthorized Queries of Social Security Records. 2
In charge 1, the agency alleged that the appellant made numerous
unauthorized queries of social security records between 2012 and 2017. IAF,
Tab 21 at 39-41. The appellant does not dispute that he queried the SSA records
system at the request of bank investigators. HT at 227-29, 262, IAF, Tab 18
at 50-54. Under the agency’s policy, OIG agents are permitted to access and
disclose SSA records only in very limited circumstances. IAF, Tab 26 at 63-68.
This includes verifying for Federal, State, or local law enforcement officials
whether a name and social security number match pursuant to a proper request.
2 Neither party disputes the administrative judge’s findings that the agency proved
charges 6 and 7, but failed to prove charges 4 and 5 and, thus, we do not address them.6
Id. at 65. There is, however, no provision under the agency’s policy that
permitted the appellant to query or disclose SSA information to bank
investigators.
The appellant testified at the hearing that he believed his actions were
permitted because he was encouraged to form relationships with bank
investigators and that was something agents did. HT at 241. Such an argument,
however, goes to the weight of the penalty. Regardless, during his interview with
the agency’s Office of Quality Assurance and Professional Responsibility, the
appellant acknowledged that he was aware of the agency policy prohibiting the
query and dissemination of social security information to non-law enforcement
individuals. IAF, Tab 21 at 80, Tab 23 at 7, 12. Similarly, during his oral
response, he confirmed that he “knew that he was violating SSA OIG policy by
providing information to bank investigators.” IAF, Tab 26 at 5. Further, the
record reflects that the appellant annually acknowledged the agency’s policy for
systems access and table of penalties for violations. IAF, Tab 26 at 26-27, 55-60,
63-68, HT at 89 (testimony of the proposing official),3 Tab 21 at 82-83, Tab 31
at 5-8. Accordingly, specifications 1-27 are sustained.
The agency proved charge 2: Improper Access of Social Security Records.
In charge 2, the agency alleged that the appellant improperly accessed SSA
records because he failed to obtain proper documentation for four different
queries he made of the SSA database on two separate dates. IAF, Tab 21 at 41.
The administrative judge found that the agency proved specification 1, which
alleged that on May 3, 2018, the appellant queried the SSA database and obtained
information pertaining to a person with a social security number ending in the
3 Although the agency’s policy concerning systems access violations is dated
February 2019, IAF, Tab 26 at 26, the proposing official testified that the same
information concerning system access penalties was contained in the prior versions of
the agency’s policy from 2010 to 2019, HT at 89. Such testimony does not appear to be
disputed.7
specified four digits without obtaining proper documentation to support the
query. ID at 12; IAF, Tab 21 at 41.
On cross petition for review, the appellant argues that the administrative
judge erred in finding that the agency proved specification 1 because, although
the appellant accessed the record, the agency failed to provide any evidence that
his access was unauthorized. PFR File, Tab 4 at 29. Such an argument is
unavailing. The appellant admits that, after receiving a telephone call from a
special agent, he queried the system and provided match/no match4 information to
the agent. IAF, Tab 1 at 36. However, under agency policy, the appellant could
disclose to Federal, state, and local law enforcement officials whether a given
name and social security number matched only if specific procedures were
followed, including, among other things, a request was made in writing on
official letterhead, signed by a supervisory law enforcement official, sent via mail
or facsimile, and included the name and social security number to be reviewed.
IAF, Tab 26 at 65; HT at 97. Additionally, each special agent in charge is
required to keep a master file of all requests and responses for social security
number verification for annual reporting purposes. Id. at 68; HT at 142. Thus,
contrary to the appellant’s argument, the absence of documentation supports the
agency’s contention that the appellant’s access was unauthorized due to failure to
obtain proper documentation. Therefore, the administrative judge properly
sustained specification 1.
The administrative judge did not address the merits of specifications 2 -4 of
charge 2 because, as discussed above, he improperly found that they were barred
by laches. Addressing the merits now, we find that the agency proved these
specifications by preponderant evidence. The appellant admits that he accessed
the SSA database and searched for the relevant social security information that
was requested by A.W., an intelligence analyst at the Florida Department of
4 Providing match/no match information means stating whether a given name and social
security number matched. ID at 11 n.7.8
Lottery, on behalf of a law enforcement agent. HT at 369 (testimony of the
appellant); IAF, Tab 18 at 49, 56, Tab 31 at 91. Although the appellant contends
that the email contained an attachment with a case report that he believed would
be sufficient to document the request, HT at 261; IAF, Tab 18 at 56, there is no
evidence that such a request was made in writing on official letterhead, signed by
a supervisory law enforcement official, and sent via mail or facsimile, as required
by agency policy, IAF, Tab 26 at 65. Accordingly, specifications 2-4 are
sustained.
The agency proved charge 3: Unauthorized Disclosure of Social Security
Records.
In charge 3, the agency alleged that for each of the unauthorized queries
made in charges 1 and 2 (excluding charge 2, specification 1) the appellant also
made unauthorized disclosures of SSA information to both law enforcement and
non-law enforcement individuals. IAF, Tab 21 at 41-42. The administrative
judge found that the agency proved specifications 1 and 2, which pertain to
unauthorized disclosures of social security information the appellant made to
bank investigators in 2017. ID at 11-12. The administrative judge found that the
appellant generally conceded the access and disclosures, citing to the hearing
compact discs, the appellant’s written response to the proposal notice, and a
written summary of the appellant’s oral reply to the deciding official. ID at 11.
On cross petition for review, the appellant argues that the administrative
judge erred in sustaining specification 1 because the appellant testified that he did
not make any disclosure to T.B., an investigator for Regions Bank, as alleged and
the agency offered no evidence to establish that such a disclosure occurred. PFR
File, Tab 4 at 29. We need not decide whether the administrative judge erred in
sustaining specification 1 because, as discussed below, the remaining sustained
charges and specifications are sufficient to warrant removal. See Alaniz v. U.S.
Postal Service, 100 M.S.P.R. 105, ¶ 10 (2005); see also Luciano v. Department of
the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001) (finding that the Board need not9
address allegations of error concerning certain specifications of a charge because
the sustained charges and specifications warranted the appellant’s removal), aff’d,
30 F. App’x 973 (Fed. Cir. 2002).5
In specifications 2-27, the agency alleged that on various dates the
appellant disclosed SSA record information to a non-law enforcement entity
without authorization. IAF, Tab 21 at 39-42. The appellant does not dispute that
he accessed and provided the information alleged in such specifications. IAF,
Tab 18 at 50-54. He further concedes that the individuals to whom he provided
the information were not law enforcement officials. Id. at 54; HT at 343.
Accordingly, such disclosures were prohibited under agency policy, and we
sustain specifications 2-27. HT at 96-98; IAF, Tab 26 at 65-68.
In specification 28, the agency alleged that on December 21, 2011, the
appellant disclosed information relating to three social security records to a law
enforcement entity without proper documentation or authorization. IAF, Tab 21
at 41-42. The appellant does not dispute that he provided the information to
A.W., who similarly confirmed that the appellant verified the social security
numbers for her. IAF, Tab 30 at 54, Tab 18 at 55-56. As discussed above under
charge 2, specifications 2-4, such a request was not accompanied by proper
documentation as required by agency policy. IAF, Tab 26 at 65-68. Accordingly,
the agency proved that the appellant’s disclosures were unauthorized, and we
sustain specification 28.
The administrative judge erred in mitigating the penalty to a 30-day suspension.
When an agency proves fewer than all of its charges, the Board may
mitigate the agency’s selected penalty to the maximum reasonable penalty, so
long as the agency has not indicated that it desires a lesser penalty to be imposed
on fewer charges. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999).
5 In light of our finding, we deny the appellant’s motion for leave to file a reply to
address the agency’s arguments in its response to the appellant’s cross petition for
review concerning specification 1 of charge 3. PFR File, Tab 10.10
Alternatively, the Board may impose the penalty selected by the agency if, after
balancing the mitigating and aggravating factors, it determines that the agency
has justified its penalty selection as the maximum reasonable penalty. Gray v.
U.S. Postal Service , 97 M.S.P.R. 617, ¶ 11 (2004), aff’d, No. 2005-3074,
2005 WL 1368093 (Fed. Cir. June 9, 2005). However, the Board may not
disconnect its penalty determination from the agency’s managerial will and
primary discretion in disciplining employees. Lachance, 178 F.3d at 1258.
The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the supervisor’s confidence in the
employee’s ability to perform his assigned duties, the consistency of the penalty
with the agency’s table of penalties, and the consistency of the penalty with those
imposed on other employees for the same or similar offenses. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). The Board places
primary importance upon the nature and seriousness of the offense and its relation
to the appellant’s duties, position, and responsibilities. See, e.g., Downey v.
Department of Veterans Affairs , 119 M.S.P.R. 302, ¶ 9 (2013).
Considering the factors set forth in Douglas, particularly the nature and
seriousness of the offense and the appellant’s status as a supervisory law
enforcement officer, and keeping in mind the employing agency’s primary
discretion in assessing penalties, we find that removal does not exceed the
tolerable limits of reasonableness for the sustained misconduct. See, e.g.,
Voorhis v. Department of Homeland Security , 116 M.S.P.R. 538, ¶¶ 4, 9-12,
31-32 (2011) (finding that removal of a Senior Special Agent was a reasonable
penalty for his misconduct in making unauthorized queries and disclosures related
to immigration records, misusing his position, and engaging in a lack of candor),
aff’d, 474 F. App’x 778 (Fed. Cir. 2012). In so finding, we have also considered
the appellant’s 14 years of Federal service, as well as his positive performance
and accolades, and lack of any prior disciplinary actions.11
Regarding the nature and seriousness of the offense, the appellant accessed
and disclosed SSA information to non-law enforcement bank investigators, which
was unauthorized and not related to his job duties. He did so, despite annually
acknowledging that he had read and understood the agency’s systems access
policies, which set forth the narrow circumstances under which an agent could
disclose SSA information. Such policies specifically stated “ [d]o not access SSA
records and/or release any SSA information unless you are absolutely certain
that you are legally authorized to do so,” and they set forth the minimum required
administrative penalties for systems access offenses and that such offenses could
lead to criminal penalties. IAF, Tab 26 at 54-60, 63-68 (emphasis in original).
Moreover, the appellant’s actions were intentional to the extent that he admitted
that he knew that he was violating agency policy by providing information to
bank investigators. Id. at 5; IAF, Tab 23 at 24-25. Additionally, regarding the
inappropriate conduct charge, the administrative judge found that the appellant
spent “considerable” work time on matters related to his nonprofit each week
during fiscal years 2012-2017. ID at 19. The Board has held that an employee
who conducts personal business while he is presumed to be performing the
official duties of his position violates the trust the agency has placed in him and
destroys the confidence established in the employer -employee relationship. See
Cohen v. Internal Revenue Service , 7 M.S.P.R. 57, 61 (1981) (affirming a
removal action for conducting personal business on Government time,
notwithstanding the appellant’s 13 years of service, unblemished record, and
absence of progressive discipline).
As the administrative judge correctly found, the deciding official
considered charges 1-3 to be the most serious and testified that each on their own
would support removal. HT at 209. She further testified that regardless of the
date the misconduct occurred, under the agency’s policy, one category C violation
is an automatic 14-day suspension and a second violation would warrant removal.
HT at 213. On review, the agency asserts that, in mitigating the penalty, the12
administrative judge erred in finding that the appellant had only one offense
because “offense” refers to a violation of the systems access rules, not an effected
disciplinary action based on such a violation. PFR File, Tab 1 at 12. We agree.6
To the extent the appellant accessed and disclosed SSA information that was
unauthorized on more than two occasions, removal was appropriate under the
agency’s guidelines. IAF, Tab 26 at 57 (stating that removal is the minimum
penalty for a second offense for a category C violation, improper access and
disclosure of information to someone not entitled to the information).
The appellant contends that his access and disclosure of SSA information
to bank investigators was condoned by agency management who encouraged
agents to foster relationships with such bank investigators. HT at 231. In support
of his argument, he presented the testimony of two retired special agents, G.F.
and M.M-J. Although the Board considers condonation as a potential mitigating
factor in the penalty analysis, see Canada, 113 M.S.P.R. 509, ¶¶ 18-19, the record
does not reflect that either individual was aware of and condoned the appellant’s
specific misconduct. In particular, G.F. testified that there was a distinction
between agents providing indirect7 versus direct information to bank investigators
and that he did not see a problem with agents providing indirect information to
get around strict disclosure rules. HT at 387-89, 391-93. In contrast, he testified
that disclosing match/no match information “is really very different” because it is
a direct disclosure that agents could make to law enforcement agents. HT at 391.
6 We also agree with the agency that the administrative judge erred in characterizing the
deciding official’s testimony as stating that she “strongly considered a suspension.”
PFR File, Tab 1 at 6-7; ID at 23; HT at 207-08.
7 As an example of an indirect disclosure, G.F. testified that a bank investigator might
contact an OIG agent about a bank record that looks suspicious and inform the agent
that the individual might be a deceased beneficiary. HT at 387-89. The agent may go
into the system to see if that person is deceased, but when he talks to the bank
investigator, he does not directly tell him whether the person is dead or alive. Id.
Instead, the agent might say, “that is not something we would be interested in opening a
case on, that person is probably having a latte at Starbucks.” Id. Through that indirect
information, the bank investigator could infer that the person is alive. Id. 13
He also testified that the agents under him were familiar with not being able to
provide direct information from the SSA database to bank investigators because it
was not worth getting in trouble. HT at 393. In contrast, M.M-J. testified that it
was common practice in the Atlanta Field Division for field agents to run
match/no match queries for bank investigators and that it was considered to be
within agency practice. HT at 412. Such testimony, however, was conclusory,
and M.M-J. was not asked to explain when it was common practice, how she
knew that it was common practice, or to describe whether the manner in which
agents provided such information comported with the appellant’s actions at issue.
HT at 410. Thus, we find that M.M’s conclusory testimony alone does not
warrant mitigation of the penalty. See, e.g., 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).
Finally, although the administrative judge found that the deciding official
failed to properly consider the fact that the appellant was not a supervisor when
he committed some of the conduct underlying charges 1-3, ID at 23 n.12, the
appellant was at all times a law enforcement officer whom the agency was
entitled to hold to a higher standard of conduct, see, e.g., Cantu v. Department of
the Treasury, 88 M.S.P.R. 253, 257 (2001) (stating that a higher standard of
conduct and degree of trust are required of an incumbent of a position with law
enforcement duties); Fischer v. Department of the Treasury , 69 M.S.P.R. 614,
619 (1996) (noting that supervisors and law enforcement officials are held to a
higher standard of conduct than other employees).
Accordingly, we find that removal is the maximum reasonable penalty for
the sustained misconduct.14
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is the most appropriate in any matter.15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any16
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebcites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s17
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Johnson_LarryPH-0752-19-0109-I-1 Final Order.pdf | 2024-02-20 | LARRY JOHNSON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-19-0109-I-1, February 20, 2024 | PH-0752-19-0109-I-1 | NP |
2,297 | https://www.mspb.gov/decisions/nonprecedential/Frazier-Barnes_Clara_D_AT-1221-19-0456-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARA DENOIS FRAZIER-BARNES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-19-0456-W-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clara Denois Frazier-Barnes , Vicksburg, Mississippi, pro se.
Raqueal Jones , New Orleans, Louisiana, for the agency.
John Michael Coleman , Esquire, Jackson, Mississippi, for the agency.
Tijuana D. Griffin , Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her request for corrective action in an individual right
of action (IRA) appeal. 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 petition for review, the appellant makes numerous arguments as to why
the administrative judge erred in dismissing her appeal as untimely filed. She
clarifies her argument below that mixed case procedures should apply to her
appeal and also argues that the administrative judge failed to determine whether
she established good cause to waive the filing time limit. Petition for Review
(PFR) File, Tab 3 at 23-31.2 Mixed case procedures do not apply to the instant
case because the appellant, formerly a Nurse appointed pursuant to 38 U.S.C.
§ 7401(1), cannot appeal her termination directly to the Board, and she has not
otherwise raised an agency action that is independently appealable to the Board.
2 The agency filed an opposition to the appellant’s petition for review 18 months after
the time limit to file a response to the petition had passed. PFR File, Tab 9. The
Acting Clerk of the Board informed the agency that its response to the petition appeared
to be untimely filed and afforded the agency an opportunity to file a motion for the
Board to accept the response as timely or waive the time limit for good cause. PFR
File, Tab 10. The agency failed to file such a motion within the time limit provided by
the Acting Clerk or otherwise provide an explanation for its untimely filing. We find
the agency’s opposition is untimely filed without good cause shown for the delay and
decline to consider it. See 5 C.F.R. §§ 1201.12, 1201.114(e), (g) (providing that the
Board may waive a filing time limit provided under its regulations if it determines that
there is good cause for an untimely filing). 2
Initial Appeal File (IAF), Tab 10 at 78, Tab 15, Initial Decision (ID) at 3 n.2; see
McCoy v. U.S. Postal Service , 108 M.S.P.R. 160, ¶¶ 10, 12 (2008) (providing
that, under 5 C.F.R. § 1201.154(b), if an appellant has filed a timely formal
complaint of discrimination with her agency relating to or stemming from an
action that can be appealed to the Board, also known as a mixed case complaint,
an appeal to the Board must be filed within 30 days after the appellant receives
the agency resolution or final decision on the discrimination issue); see also
Hawker v. Department of Veterans Affairs , 123 M.S.P.R. 62, ¶ 2 n.1 (2015)
(observing that, as a physician appointed under 38 U.S.C. § 7401(1), the appellant
could not directly appeal his termination to the Board). Additionally, as noted by
the administrative judge, the Board’s regulations permitting an administrative
judge to waive the time limit to file an initial appeal upon a showing of good
cause for a delay in filing are inapplicable here, as the statutory time limit to file
an IRA appeal cannot be waived. ID at 3; see 5 U.S.C. § 1214(a)(3)(A);
Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 9 (2014) (providing
that the Board cannot waive the statutory time limit for filing an IRA appeal for
good cause shown because there is no statutory mechanism for doing so).
The appellant also argues that the Board should apply the doctrine of
equitable tolling to extend the time limit to file her appeal for the following
reasons: (1) she did not receive notice of the time limit to file an appeal; (2) she
thought that she filed her appeal on January 31, 2019, but she did not learn until
April 2019 that it was not filed; (3) she called the Board daily from March 25 to
March 29, 2019, but the telephone line was busy; (4) she called the Board on
April 8, April 9, or April 10, 2019, but the individual she spoke with informed
her that they could not offer technical assistance; (5) the government shutdown
affected the filing of her appeal; (6) she should be afforded leniency because she
is a layperson; and (7) the administrative judge failed to consider her April 30,
2019 request for an extension of time. PFR File, Tab 3 at 13, 21-25, 27 -28, 33. 3
As set forth by the administrative judge, the appellant received notice from
the Office of Special Counsel of the time limit to file her IRA appeal. IAF, Tab 2
at 4-6; ID at 2. On review, the appellant newly details her efforts to contact the
Board in March and April 2019. The Board generally will not consider evidence
or argument submitted for the first time with the petition for review absent a
showing that it was unavailable before the record was closed, despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). Even if we were to consider the appellant’s new
allegations specifying the dates on which she contacted the Board, she has not
shown that equitable tolling of the time limit to file her appeal is warranted.
Although the Board’s e-Appeal logs reflect that the appellant created an e-Appeal
account in January 2019, there is no record that she submitted an appeal or
contacted the Board for assistance until April 2019, nor do we find that the
appellant’s purported efforts to contact the Board 2 months after she attempted to
file an appeal were sufficiently diligent to warrant equitable tolling. The cases
that the appellant cites in favor of leniency for pro se litigants do not persuade us
that equitable tolling is required under the circumstances. In addition, the initial
decision reflects that the administrative judge considered the appellant’s April 30,
2019 request for an extension. ID at 2. Accordingly, we agree with the
administrative judge that the appellant has not demonstrated that equitable tolling
is warranted in this case. See Heimberger, 121 M.S.P.R. 10, ¶ 10 (providing that
the Board only applies equitable tolling in unusual circumstances and generally
requires a showing that the litigant has been pursuing her rights diligently and
some extraordinary circumstances stood in her way).
The appellant also alleges on review that the administrative judge erred in
(1) dismissing her appeal without a hearing; (2) limiting the issues and evidence
to timeliness without deciding the merits of her appeal; and (3) failing to sanction
the agency for the falsification of Federal records and discovery misconduct; she
further argues the merits of her appeal. PFR File, Tab 3 at 14-21, 25, 30, 32-36.4
The administrative judge properly dismissed this appeal without a hearing,
as there are no material facts in dispute regarding the timeliness issue. See
Sims v. Smithsonian Institution , 101 M.S.P.R. 311, ¶ 10 (2006) (providing that, if
there is a dispute of material facts relating to timeliness and the appellant has
requested a hearing, the appellant is entitled to a hearing on timeliness).
Additionally, there is no evidence that the appellant raised below the issue of
alleged agency misconduct in discovery. Finally, the appellant’s arguments
regarding the merits of her appeal are not relevant to the issue of timeliness.
Accordingly, we affirm the initial decision for the reasons stated by the
administrative judge.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Frazier-Barnes_Clara_D_AT-1221-19-0456-W-1__Final_Order.pdf | 2024-02-20 | null | AT-1221-19-0456-W-1 | NP |
2,298 | https://www.mspb.gov/decisions/nonprecedential/Rector_EdwinDC-3330-19-0364-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN RECTOR,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-3330-19-0364-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam P. Grogan , Esquire, Albany, New York, for the appellant.
Matthew John Mackey , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). On petition for review, the appellant
disagrees with the administrative judge’s finding that the agency honored his
right to compete for the position at issue and argues that the administrative judge
erred in finding that the agency properly used the merit promotion process to fill
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 position.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 by
this Final Order to clarify that the instructions for uploading a resume to the
USAJOBS website specifically advised the appellant that he should not include
his Social Security Number (SSN) and other personal or sensitive information, we
AFFIRM the initial decision.3
2 The appellant also argues, for the first time on review, that the agency and the
administrative judge violated the Administrative Procedure Act (APA). Petition for
Review File, Tab 4 at 3-4. The Board will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant makes no such
showing. Thus, we have not considered it. Nevertheless, the APA, 5 U.S.C. §§ 551
et seq., is not generally applicable to Board procedures. Lee v. U.S. Postal Service ,
48 M.S.P.R. 274, 281 (1991); see McDougall v. Social Security Administration ,
114 M.S.P.R. 534, ¶ 7 (2010) (stating that administrative law judges are entitled to have
their appeals adjudicated under the APA, whereas other Federal employees are not).
The appellant does not explain how the APA applies in this case.
3 On May 18, 2020, the appellant filed a motion for leave to file a supplement to his
petition for review. Petition for Review (PFR) File, Tab 9. He contends that the
supplement will “clarify and narrow” the issues raised in the agency’s response to his
petition for review. Id. at 1. The appellant filed his petition for review on
September 23, 2019. PFR File, Tab 4. In the acknowledgment letter, the Office of the
Clerk of the Board informed the appellant that he may file a reply to the agency’s2
The administrative judge found that the appellant established Board
jurisdiction over his VEOA appeal because he exhausted his remedy before the
Department of Labor (DOL) and nonfrivolously alleged that he was denied the
right to compete for an agency position because his application was disqualified
based on his inclusion of personally identifiable information (PII) in his resume.
IAF, Tab 12 at 3; ID at 3. We agree with the administrative judge that the
appellant established jurisdiction over his VEOA appeal. ID at 1; IAF, Tab 12
at 2-3; Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409, ¶ 5 (2010)
(finding that, to establish Board jurisdiction over a “right to compete” appeal
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 action at issue took
place on or after the December 10, 2004 enactment date of the Veterans’ Benefits
Improvement Act of 2004, and (iii) the agency, in violation of 5 U.S.C.
§ 3304(f)(1), 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). Nevertheless, for the following reasons,
we find that the administrative judge properly denied the appellant’s request for
corrective action.
The appellant argues on review that the policy that the agency claimed he
violated is merely an internal agency management procedure that does not
override veterans’ preference rights. PFR File, Tab 4 at 2-3. However, the
agency established that the proscription concerning the inclusion of PII in a
resume is applied to all candidates, as all applicants were screened in the same
response to his petition for review within 10 days of the agency’s service of its
response. PFR File, Tab 5 at 1. The agency served its response on October 18, 2019.
PFR File, Tab 6. Therefore, the time for the appellant to file a reply to the agency’s
response closed on October 28, 2019, as did the record on review. PFR File, Tab 5 at 1;
see 5 C.F.R. § 1201.114(e). The appellant did not file a reply to the agency’s response
before the deadline. Nor has the appellant explained why good cause exists for his
failure to do so. His motion to file a supplement addressing the issues in the agency’s
response to his petition for review over 6 months late is denied. 3
manner. IAF, Tab 7 at 14, 77, 81, Tab 13 at 19-22, 29. In the vacancy
announcement, applicants were cautioned that they will not be considered if their
resume includes any inappropriate material or content. IAF, Tab 7 at 77, Tab 13
at 19. The USAJOBS website page where applicants submit their resumes clearly
instructs applicants not to include, among other things, their SSN or other
personal or sensitive information. IAF, Tab 13 at 20, 29. Because the appellant
included his unredacted Certificate of Release or Discharge from Active Duty,
Department of Defense Form DD-214 (DD-214) as part of his resume,4 which
included his birth date and SSN, he was deemed ineligible. IAF, Tab 7 at 61,
Tab 13 at 19, 21. Because the right to compete required by 5 U.S.C. § 3304(f)(1)
is satisfied by participation in the selection process on the same grounds as other
candidates, and the record reflects that to be the case here, we agree with the
administrative judge that the agency honored the appellant’s right to compete. ID
at 4-5; Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1357, 1360
(Fed. Cir. 2016); see also Harellson v. U.S. Postal Service , 113 M.S.P.R. 534,
¶ 11 (2010) (observing that the right to compete under section 3304(f)(1) does not
require that a veteran be considered at every stage of the selection process, up to
that process’s final stage).
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
4 Although a copy of an applicant’s DD-214 is appropriate to submit in applying for the
position, an agency Human Resources Specialist provided a sworn statement explaining
that an applicant who provides his DD-214 with his resume improperly provides the
hiring manager with PII, i.e., the applicant’s SSN and date of birth, which the hiring
manager is not allowed to see. IAF, Tab 13 at 19-21. Consequently, the DD-214 is
uploaded in a separate area that is not viewable by the hiring manager, and should not
be included with the resume. Id. at 20-21.
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular5
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 6
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court7
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. 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 | Rector_EdwinDC-3330-19-0364-I-1_Final_Order.pdf | 2024-02-20 | EDWIN RECTOR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-3330-19-0364-I-1, February 20, 2024 | DC-3330-19-0364-I-1 | NP |
2,299 | https://www.mspb.gov/decisions/nonprecedential/Fitzpatrick_James_F_NY-315H-19-0019-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES FRANCIS FITZPATRICK,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-315H-19-0019-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neal Rosenberg , Esquire, New York, New York, for the appellant.
Daniel Piccaluga , 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 that
dismissed as withdrawn the Board appeal of his probationary 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
An appellant’s withdrawal of a Board appeal is an act of finality which
removes the appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal Service ,
113 M.S.P.R. 486, ¶ 7 (2010). A voluntary withdrawal must be clear, decisive,
and unequivocal. Id. As the administrative judge properly found in the initial
decision in this case, the appellant withdrew his Board appeal of his probationary
termination.2 Initial Appeal File (IAF), Tab 11, Initial Decision at 1-3. The
appellant voluntarily did so after the administrative judge issued two orders
outlining the ramifications of such a withdrawal. IAF, Tabs 7, 9. The appellant’s
statement of “I withdraw my case with prejudice” is clear, decisive, and
unequivocal. IAF, Tab 10 at 3. On review, the appellant does not contest the
validity of his withdrawal nor does he claim that his withdrawal was the result of
misinformation or misunderstanding. Petition for Review (PFR) File, Tab 1.
Thus, we discern no reason to disturb the initial decision. See Lincoln,
113 M.S.P.R. 486, ¶ 8 (finding that the administrative judge did not err in
dismissing the appeal as withdrawn).3
2 The administrative judge had yet to rule on whether the Board had jurisdiction over
the appellant’s appeal of his probationary termination at the time of his withdrawal.
3 On review, the appellant claims that he is a whistleblower and asserts that he is
“claiming [his] rights as an Individual Right of Action.” PFR File, Tab 1 at 4. The2
After the record closed on review, the appellant filed a motion for leave to
file additional documentation, to include, a letter from the Office of Special
Counsel (OSC), a 165-page document from OSC, and a letter from the Federal
Emergency Management Agency regarding a purported “breach of computer file
information.” PFR File, Tab 6 at 3. Generally, the Board’s regulations do not
provide for such a pleading to be filed after the close of the record. 5 C.F.R.
§ 1201.114(a)(5), (k). In order for such a filing to be accepted by the Board, the
appellant must describe the nature of and need for the pleading, and it must
contain new and material evidence or argument that was not readily available
before the record closed. 5 C.F.R. § 1201.114(a)(5), (k); see PFR File, Tab 7
at 1. We DENY the appellant’s motion, as he failed to show that these documents
were unavailable prior to the close of the record on review, nor has he outlined
their relevance to the singular issue in this appeal–the voluntariness of his
withdrawal.
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
appellant made a similar claim before the administrative judge prior to his withdrawal
set forth previously. IAF, Tab 8 at 3. Despite the administrative judge’s statement that
the appellant’s withdrawal of his appeal would preclude a future Board appeal asserting
that his probationary termination was in reprisal for whistleblowing, his reprisal for
whistleblowing claim may fall under the purview of the Office of Special Counsel
(OSC) to investigate and the appellant may have the right to file an individual right of
action (IRA) appeal with the Board after exhausting his administrative remedies before
OSC. IAF, Tab 9 at 1. Through this Final Order, the Board makes no determination
regarding the jurisdiction or the merits concerning any IRA appeal filed by the
appellant over his probationary termination at issue in this current appeal.
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.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.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. 1510.6
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Fitzpatrick_James_F_NY-315H-19-0019-I-1__Final_Order.pdf | 2024-02-20 | JAMES FRANCIS FITZPATRICK v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-315H-19-0019-I-1, February 20, 2024 | NY-315H-19-0019-I-1 | NP |
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