id int64 0 4.54k | url stringlengths 86 186 | text stringlengths 92 116k | filename stringlengths 39 139 | date stringclasses 661 values | case_caption stringlengths 74 130 ⌀ | docket_number stringlengths 1 19 ⌀ | rank stringclasses 1 value |
|---|---|---|---|---|---|---|---|
2,300 | https://www.mspb.gov/decisions/nonprecedential/Zakielarz_Matthew_A_DC-0752-18-0779-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW A. ZAKIELARZ,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-18-0779-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leslie McAdoo Gordon , Esquire, Washington, D.C., for the appellant.
Suzanne Nicole Nardone , 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 without prejudice to refiling. For the reasons set
forth below, we DISMISS the petition for review as moot.
In his August 16, 2019 initial decision, the administrative judge dismissed
the appeal without prejudice to refiling for a period of up to 180 days. Zakielarz
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
v. Department of Health and Human Services , MSPB Docket No. DC-0752-18-
0779-I-1, Initial Appeal File, Tab 15, Initial Decision. The appellant filed a
timely petition for review of the initial decision on September 3, 2019. Petition
for Review (PFR) File, Tab 1. While the petition for review was pending, the
appeal was refiled and dismissed without prejudice three more times between
February 2020 and September 2021. Zakielarz v. Department of Health and
Human Services , MSPB Docket No. DC-0752-18-0779-I-4, Appeal File, Tab 8,
Initial Decision; Zakielarz v. Department of Health and Human Services , MSPB
Docket No. DC-0752-18-0779-I-3, Appeal File, Tab 13, Initial Decision. The
regional office automatically refiled the appeal a fourth time on November 8,
2021. Zakielarz v. Department of Health and Human Services , MSPB Docket
No. DC-0752-18-0779-I-5, Appeal File (I-5 AF), Tab 1. On April 8, 2022, the
administrative judge issued an initial decision dismissing the appeal as settled and
entered the settlement agreement into the record for enforcement purposes.
I-5 AF, Tab 21, Initial Decision (I-5 ID). That decision became the final decision
of the Board when neither party filed a petition for review before the May 13,
2022 filing deadline. I -5 ID at 2.
The only matter before the Board in this petition for review is whether the
first dismissal without prejudice was proper. The remedy for an improperly
granted dismissal without prejudice is remand to the regional office for further
adjudication of the appeal. See, e.g., Dey v. Nuclear Regulatory Commission ,
106 M.S.P.R. 167, ¶¶ 9-11 (2007). However, the underlying appeal has been
refiled multiple times and ultimately dismissed as settled during the pendency of
this petition for review. Therefore, there is no meaningful relief the Board could
grant even if we determined that the first dismissal without prejudice should not
have been granted. See White v. International Boundary and Water Commission ,
59 M.S.P.R. 62, 64 -65 (1993) (dismissing a petition for review as moot when the
Board could not grant effective relief). We therefore dismiss the petition for
review. See Villareal v. Department of the Treasury , 13 M.S.P.R. 82, 84 (1982)
3
(dismissing a petition for review as moot in light of the appellant’s decision not
to refile his appeal because a Board opinion on the initial decision would have no
effect on the parties in question).
This is the final order of the Merit Systems Protection Board in this appeal.
5 C.F.R. § 1201.113(c).
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. | Zakielarz_Matthew_A_DC-0752-18-0779-I-1__Final_Order.pdf | 2024-02-20 | MATTHEW A. ZAKIELARZ v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-18-0779-I-1, February 20, 2024 | DC-0752-18-0779-I-1 | NP |
2,301 | https://www.mspb.gov/decisions/nonprecedential/Hoover_Suzanne_R_CH-0752-18-0394-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUZANNE RENE HOOVER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-18-0394-I-1
DATE: February 20, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Suzanne Rene Hoover , Blacklick, Ohio, pro se.
C. Michael Meehan and Jeffrey Csokmay , Columbus, Ohio, for the agency.
Shy Y. Wang , Whitehall, 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 her appeal of her April 3, 2016 demotion as untimely filed without
good cause shown. On petition for review, the appellant argues, for the first time,
that she delayed in filing her appeal due to fear of retaliation and challenges the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
merits of 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
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 | Hoover_Suzanne_R_CH-0752-18-0394-I-1 Final Order.pdf | 2024-02-20 | SUZANNE RENE HOOVER v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-18-0394-I-1, February 20, 2024 | CH-0752-18-0394-I-1 | NP |
2,302 | https://www.mspb.gov/decisions/nonprecedential/Moss_Donell_T_CH-0831-19-0411-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONELL T. MOSS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
LECHON LAIRD,
Intervenor.DOCKET NUMBER
CH-0831-19-0411-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donell T. Moss , Bellwood, Illinois, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
LeChon Laird , Fort Wayne, Indiana, pro se.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying his request for a lump-sum death benefit 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 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 his late wife (the decedent)
had contacted OPM to request forms to designate him as her sole beneficiary, but
OPM failed to send her the proper form for CSRS purposes. Petition for Review
(PFR) File, Tab 1 at 6, Tab 5 at 2-3. He further argues that the failure of the
decedent’s granddaughter to request to participate in the appeal as an intervenor
indicates apathy regarding a lump-sum death benefit. PFR File, Tab 5 at 8. For
the first time on review, the appellant has submitted a copy of the CSRS
designation-of-beneficiary form that he claims OPM should have sent to the
decedent, id. at 2-3, 6, and sworn and notarized statements that he claims prove
that the decedent intended to designate him as her beneficiary under CSRS, id.2
at 8-12.2 The appellant has failed to explain why, despite his due diligence, he
was unable to obtain and submit such evidence prior to the close of the record
before the administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (finding that 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).
In any event, we find that the appellant’s arguments and submission of
evidence on review provide no reason to disturb the initial decision because,
although they raise equitable concerns, they fail to establish that he is entitled to
a lump-sum death benefit pursuant to the order of precedence set forth at 5 U.S.C.
§ 8342(c). Initial Appeal File, Tab 9, Initial Decision (ID) at 5-6; see Murphy v.
Office of Personnel Management , 103 M.S.P.R. 431, ¶ 17 (2006) (observing that
the Board cannot order OPM to pay lump -sum death benefits based on equitable
principles when the statutory conditions for payment have not been met). In
particular, the appellant does not dispute, and we discern no reason to disturb, the
administrative judge’s finding that the decedent’s granddaughter has a superior
claim to a lump -sum death benefit as the designated beneficiary under CSRS. ID
at 9; see Landsberger v. Office of Personnel Management , 50 M.S.P.R. 13, 16-17
(1991) (finding that 5 U.S.C. § 8342(c) does not afford OPM or the Board any
discretion to award benefits to someone other than the properly designated
beneficiary), aff’d, 956 F.2d 1174 (Fed. Cir. 1992) (Table).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS
You may obtain review of 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 In addition, the appellant has provided a copy of the initial decision and has
resubmitted documentation that already is a part of the record before the administrative
judge. PFR File, Tab 1 at 10-11, 13-31, Tab 5 at 4-5, 7; Initial Appeal File, Tab 1
at 6-8, Tab 5 at 30, Tab 8 at 3-4.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Moss_Donell_T_CH-0831-19-0411-I-1_Final_Order.pdf | 2024-02-16 | DONELL T. MOSS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-19-0411-I-1, February 16, 2024 | CH-0831-19-0411-I-1 | NP |
2,303 | https://www.mspb.gov/decisions/nonprecedential/Miller_Christie_D_AT-0831-18-0483-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIE D. MILLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-18-0483-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
hristie D. Miller , Mobile, Alabama, 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
(OPM) denying the appellant a survivor annuity. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant challenges the administrative judge’s
finding that she was not married to an annuitant who passed away on
December 28, 2016, and thus, she was not eligible for a survivor annuity under
the Civil Service Retirement System. Petition for Review (PFR) File, Tab 1
at 3-4; Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 3-5.2 The
appellant asserts that some of the documents she submitted in support of the
existence of a common law marriage were not received or reviewed by the
administrative judge and requests that they be considered; she has submitted five
documents, dating from February and March 2017, with her petition. PFR File,
Tab 1 at 3-4, Tab 3 at 3-10. She also states that, at the hearing held in this
matter, she learned that the decedent’s death certificate states that she is a friend,
and she has submitted an email from the funeral home stating that she stated at
2 The appellant’s initial appeal to the Board was untimely filed by 2 months, without
explanation. IAF, Tab 1. Neither the agency nor the administrative judge raised this
issue during the proceedings below. In the initial decision, the administrative judge
noted that the appeal appeared to be untimely, but she did not address it, stating that
OPM had not raised the issue. ID at 2 n.1. We need not address the timeliness of the
initial appeal because we find that the administrative judge properly denied the appeal
on the merits.
3
the time of the decedent’s death that she was his spouse. PFR File, Tab 1 at 3-4,
Tab 3 at 2.
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). Based on our
review of the record, we cannot conclude that the appellant failed to exercise due
diligence in submitting the documents dating from February and March 2017
before the record closed and have considered these documents in our review of
this appeal. Hearing Compact Disc (testimony of the appellant); PFR File, Tab 1
at 3-4, Tab 3 at 3-10. We decline to consider the October 25, 2018 email from
the funeral home, as the agency submitted the death certificate prior to the
hearing, and the appellant failed to exercise due diligence in challenging the
death certificate below. IAF, Tab 6 at 31; PFR File, Tab 1 at 3-4, Tab 3 at 2.
After careful consideration of the record, we have concluded that the
appellant has not established that she and the decedent had a common law
marriage. As discussed by the administrative judge, the appellant did not show
by clear and convincing evidence that she and the decedent had a present, mutual
agreement to enter into marriage, and the evidence on review does not establish
that the appellant has met her burden. ID at 3-5; PFR File, Tab 3 at 3-10; see
Lofton v. Estate of Weaver , 611 So. 2d 335, 336 (Ala. 1992) (providing that,
under Alabama law, a party seeking to prove a common law marriage must
establish her claim by clear and convincing evidence); Boswell v. Boswell ,
497 So. 2d 479, 480 (Ala. 1986) ( holding that, in Alabama, recognition of a
common law marriage requires proof of “(1) capacity; (2) present, mutual
agreement to permanently enter the marriage relationship to the exclusion of all
other relationships; and (3) public recognition of the relationship as a marriage
and public assumption of marital duties and cohabitation”).
4
Furthermore, the administrative judge found that the appellant cannot show
that the decedent elected a survivor annuity for her, and the appellant does not
challenge this finding on review. ID at 5-6. Our review of the record reflects
that there is no evidence that the decedent ever submitted the requisite signed
writing to OPM that elected a survivor annuity for the appellant prior to his death,
and there is no basis on which to waive the filing deadline. See 5 U.S.C.
§ 8339(j)(5)(C)(i) (providing that, upon remarriage, an annuitant may elect to
provide a survivor annuity for his spouse in a signed writing that OPM receives
within 2 years after the marriage); Perez Peraza v. Office of Personnel
Management, 114 M.S.P.R. 457, ¶ 7 (2010) (recognizing three bases for waiving
a filing deadline prescribed by statute or regulation: (1) the statute or regulation
may provide for a waiver under specified circumstances; (2) an agency’s
affirmative misconduct may preclude enforcement of the deadline under the
doctrine of equitable estoppel; and (3) an agency’s failure to provide a notice of
rights and the applicable filing deadline, where such notice is required by statute
or regulation, may warrant waiver of the deadline). Accordingly, we affirm the
administrative judge’s initial decision affirming OPM’s denial of the appellant’s
request for a survivor annuity.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Miller_Christie_D_AT-0831-18-0483-I-1_Final_Order.pdf | 2024-02-16 | CHRISTIE D. MILLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-18-0483-I-1, February 16, 2024 | AT-0831-18-0483-I-1 | NP |
2,304 | https://www.mspb.gov/decisions/nonprecedential/Boyd_Vernita_D_CH-0841-19-0192-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNITA D. BOYD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-19-0192-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
V
ernita D. Boyd , Wheeling, Illinois, pro se.
Michael Shipley , 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 initial appeal as untimely filed without good cause shown. On
petition for review, the appellant reiterates identical arguments raised, and
addressed below, and fails to identify any errors made by the administrative
judge. 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. Except as expressly MODIFIED to
find that the administrative judge’s erroneous calculation of the length of the
appellant’s untimeliness was harmless, we AFFIRM the initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
With exceptions not applicable here, the deadline for filing an appeal is
30 days after the effective date, if any, of the action being appealed, or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is
later. 5 C.F.R. § 1201.22(b)(1). The appellant has the burden of proving the
timeliness of her Board appeal by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(B).
The record contains two final decisions by the Office of Personnel
Management (OPM) denying the appellant’s application for an annuity under the
Federal Employee’s Retirement System, dated August 31, 2018, and
October 11, 2018, respectively. Initial Appeal File (IAF), Tab 1 at 9-10, Tab 7 at
7-8. The appellant claimed that she received OPM’s final decision on October
11, 2018. IAF, Tab 1 at 4. Even assuming this was the first time the appellant
received OPM’s final decision, her appeal would nonetheless be due on
November 13, 2018, thirty days from its receipt after accounting for the weekend2
and Veteran’s Day holiday, which fell on November 12, 2018.
5 C.F.R. § 1201.22(b)(1); see 5 C.F.R. § 1201.23 (explaining that if a filing
deadline falls on a weekend or holiday, the deadline is extended to the following
workday). The appellant filed her appeal by mail on December 31, 2018.
IAF, Tab 1 at 11. It appears that she separately faxed a copy of OPM’s final
decision to the regional office in early February 2019. Id. at 8-11. In the initial
decision, the administrative judge found that the appellant filed her appeal by
facsimile on February 7, 2019, and thus, factoring in the partial Government
shutdown of 2018-19, her appeal was untimely by 55 days. IAF, Tab 8,
Initial Decision at 2. This calculation was erroneous because it failed to
recognize that the appellant mailed her appeal on December 31, 2018. IAF, Tab 1
at 11; see Williams v. U.S. Postal Service , 61 M.S.P.R. 213, 215 (1994)
(finding that the Board considers the postmark date to be the date of filing of a
mailed submission); 5 C.F.R. § 1201( l) (stating the same rule). Correcting this
error to reflect that the appellant filed her appeal on December 31, 2018,
she nonetheless untimely filed her initial appeal by 41 days, after accounting for
the partial Government shutdown and the Christmas holiday. Accordingly, the
administrative judge’s error was harmless. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (finding an adjudicatory error which is
not prejudicial to a party’s substantive rights is no basis for reversal of the initial
decision).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
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
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 | Boyd_Vernita_D_CH-0841-19-0192-I-1_Final_Order.pdf | 2024-02-16 | VERNITA D. BOYD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-19-0192-I-1, February 16, 2024 | CH-0841-19-0192-I-1 | NP |
2,305 | https://www.mspb.gov/decisions/nonprecedential/Butera_Kathleen_P_PH-0841-18-0414-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHLEEN P. BUTERA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-18-0414-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
alph N. Butera , Pottsville, Pennsylvania, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision in this matter. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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).
This appeal concerns the appellant’s challenge to OPM’s determination that
it should have recalculated the appellant’s annuity benefit under the Federal
Employees’ Retirement System (FERS) when she reached 62 years of age,
resulting in an overpayment. Initial Appeal File (IAF), Tab 1, Tab 3,
Subtabs 5a-5b. On review, the appellant contests the administrative judge’s
dismissal of her appeal for lack of jurisdiction because OPM had not issued a
final decision in this matter. Petition for Review (PFR) File, Tab 1 at 1; IAF,
Tab 11, Initial Decision (ID) at 3-4. She argues that OPM is delaying the
proceedings in order to induce her to miss a deadline. PFR File, Tab 1 at 1.
OPM has filed an opposition to the petition in which it maintains that the Board
lacks jurisdiction over the appeal because OPM has not issued a final decision.
PFR File, Tab 4 at 4.
The Board generally has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under FERS only after OPM has issued a final
decision. McNeese v. Office of Personnel Management , 61 M.S.P.R. 70, 73-74,
aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). As an exception to this general rule,
the Board will take jurisdiction over an appeal concerning a retirement matter in
3
which OPM has refused or improperly failed to issue a final decision. Okello v.
Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014). As discussed
by the administrative judge, OPM rescinded a March 6, 2018 final decision and
issued a May 31, 2018 amended initial decision providing the appellant with the
right to request reconsideration of the decision. ID at 3; IAF, Tab 3,
Subtabs 5a-5c, Tab 10 at 11. An OPM initial decision subject to reconsideration
is not a final decision appealable to the Board. Okello, 120 M.S.P.R. 498, ¶ 14
n.2; 5 C.F.R. § 841.305.2 At the time the administrative judge issued his initial
decision dismissing the appeal for lack of jurisdiction, there was no evidence that
the appellant had requested reconsideration or that OPM had issued a final
decision. ID at 3.
The record on review reflects that, shortly after the administrative judge
issued the initial decision in this appeal, the appellant requested reconsideration
of OPM’s amended initial decision; however, there is still no evidence that OPM
has issued a final decision. PFR File, Tab 1 at 2. Additionally, the record does
not support the appellant’s argument that OPM is unnecessarily delaying the
process, nor do we find that OPM has otherwise refused or improperly failed to
issue a final decision. Accordingly, we affirm the administrative judge’s finding
that the Board lacks jurisdiction over this appeal; thus, the appeal must be
dismissed. Once OPM issues a final decision in this matter, the appellant may
appeal the decision to the Board.
2 In the initial decision, the administrative judge cited to the regulations applicable to
the Civil Service Retirement System, rather than to FERS, the system under which the
appellant retired. ID at 3. We discern no reason to disturb the initial decision,
however, as OPM’s amended initial decision does not constitute a final decision under
either system’s regulations; thus, the administrative judge’s reliance on the incorrect
regulations does not affect the outcome of the appeal. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
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. | Butera_Kathleen_P_PH-0841-18-0414-I-1_Final_Order.pdf | 2024-02-16 | KATHLEEN P. BUTERA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-18-0414-I-1, February 16, 2024 | PH-0841-18-0414-I-1 | NP |
2,306 | https://www.mspb.gov/decisions/nonprecedential/Sultana_RaziaNY-1221-19-0194-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAZIA SULTANA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-1221-19-0194-W-1
DATE: February 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Heather White , Esquire, Washington, D.C., for the appellant.
Stephen Butera , Esquire, Clarksburg, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the field office for further adjudication in accordance with
this Remand Order.
BACKGROUND
¶2On August 9, 2015, the agency appointed the appellant to a Physician
position in the Nuclear Medicine Section of the Imaging Service at its
Martinsburg, West Virginia Veterans Administration Medical Center (VAMC),
under the authority of 38 U.S.C. § 7401(1), subject to a 2-year probationary
period. Initial Appeal File (IAF), Tab 11 at 19, 22, 26. On or about May 22,
2017, the appellant’s supervisor, the Imaging Service Chief, recommended to the
hospital’s credentialing committee that the appellant’s clinical privileges not be
renewed. IAF, Tab 8 at 7. The appellant then filed a whistleblower complaint
with the Office of Special Counsel (OSC), alleging that the agency was retaliating
against her for disclosures that she made between January 15, 2015, and May 17,
2017, concerning various violations of agency rules and standards of care
committed by Nuclear Medicine Technicians. IAF, Tab 8 at 11-14, Tab 11 at 10.
¶3On May 31, 2017, the Acting Chief of Staff notified the appellant that the
agency was conducting a review of her practice based on errors detected during
its ongoing professional practice evaluation. IAF, Tab 10 at 33-34. On June 30,
2017, the VAMC Director notified the appellant that the agency had completed its
administrative review, and the results “indicated a significant discrepancy rate.”
Id. at 30-31. He further notified the appellant that her Nuclear Medicine clinical
privileges were suspended and she would be placed on administrative duty
pending a comprehensive review. Id. at 30-31. After the process was complete,
the Director would decide whether to restore, reduce, or revoke her privileges.
Id. at 30.
¶4Subsequently, on July 7, 2017, the Service Chief requested that the Acting
Chief of Staff convene a review board to determine whether the appellant should
be retained or separated from service. IAF, Tab 11 at 34. The appellant was then2
notified that a professional standards board had been convened to conduct a
summary review of her probationary employment and make recommendations
concerning her retention.2 Id. at 36-37. Upon completion of the review, the
board determined that the appellant had a significant record of clinical errors, and
the members voted unanimously to recommend her separation. Id. at 66. On
July 27, 2017, the VAMC Director issued a decision terminating the appellant the
following day. Id. at 68. The appellant amended her pending OSC complaint to
include her termination. IAF, Tab 8 at 19. On May 31, 2019, OSC closed the
appellant’s file without taking corrective action. Id. at 9, 19.
¶5The appellant filed the instant IRA appeal and requested a hearing. IAF,
Tab 1 at 2-4. The administrative judge issued a standard jurisdictional order for
an IRA appeal, notifying the appellant of the jurisdictional standard and directing
the parties to file evidence and argument on the issue. IAF, Tab 3. After the
close of the record, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). She found
that the appellant’s descriptions of her alleged disclosures were vague and
conclusory and that she therefore failed to make a nonfrivolous allegation that
any of her disclosures were protected. ID at 4-6.
¶6The appellant has filed a petition for review disputing the administrative
judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶7As relevant here, the Board has jurisdiction over an IRA appeal if the
appellant exhausts her administrative remedies before OSC and makes
2 The appellant appears to dispute her alleged status as a probationary employee. IAF,
Tab 1 at 3, Tab 8 at 8. Although this matter could possibly be relevant to the merits of
the appeal, it is not germane to the issue of jurisdiction. As an individual appointed
under 38 U.S.C. § 7401(1), the appellant would lack Board appeal rights under 5 U.S.C.
chapter 75 regardless of her tenure. See Hawker v. Department of Veterans Affairs ,
123 M.S.P.R. 62, ¶ 2 n.1 (2015).3
nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C.
§ 2302(b)(8) and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014).
In this case, it is undisputed that the appellant exhausted her administrative
remedies before OSC. ID at 3; IAF, Tab 1 at 4, Tab 8 at 8-14, 19; see 5 U.S.C.
§ 1214(a)(3)(A). Therefore, the only remaining jurisdictional issue is whether the
appellant nonfrivolously alleged that she made a protected disclosure that was a
contributing factor in a personnel action.
¶8Before addressing this issue, however, we must note that our analysis is
constrained by the appellant’s jurisdictional pleadings. IAF, Tabs 8, 13. The
administrative judge gave explicit instructions that were intended to guide the
appellant in submitting pertinent information in a useful format. IAF, Tab 3 at 7.
The appellant’s jurisdictional pleadings are not a model of clarity.3 Nevertheless,
we have given the appellant’s pleadings a fair reading.
The appellant has nonfrivolously alleged that she made protected disclosures.
¶9A protected disclosure is a disclosure which an 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. Briley v. National Archives and
Records Administration , 236 F.3d 1373, 1378 (Fed. Cir. 2001); see 5 U.S.C.
§ 2302(b)(8). Having reviewed the appellant’s pleadings, we find that she has
identified several matters, the disclosure of which could be protected under
5 U.S.C. § 2302(b)(8) as violations of law, rule, or regulation, substantial danger
to public health and safety, or both. Specifically, the appellant listed fifteen
separate incidents in which agency employees, chiefly Nuclear Medicine
Technicians, allegedly violated applicable procedures, laws, or standards of
3 In this regard, we note that the appellant’s counsel listed on her petition for review did
not represent her below.4
medical care. IAF, Tab 8 at 11-13. She alleged that on one occasion, a patient
was allowed to view an open patient list. Id. at 11. We find that the appellant
could reasonably have believed that this violated the Health Insurance Portability
and Accountability Act Privacy Rule. See 45 C.F.R. § 164.502.
¶10The appellant also alleged that a patient was subjected to a cardiac stress
test despite contraindications for such a test and went into cardiac arrest as a
result and that hospital staff later repeated the error with two additional patients.
IAF, Tab 8 at 11-13. The Board has previously found that medical errors can
represent substantial and specific dangers to public health and safety. See, e.g.,
Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 15 (2011)
(misdiagnoses and placement of patients in inappropriately low levels of care);
Tatsch v. Department of the Army , 100 M.S.P.R. 460, ¶ 10 (2005) (errors in
patient triage). Taking the appellant’s allegations as true, especially the
life-threatening consequences of the first stress test and the fact that the alleged
error was twice repeated thereafter, we find that the appellant could reasonably
have perceived a substantial and specific danger to public health and safety.
¶11The appellant also identified three alleged incidents in which medical
testing or the interpretation of test results was unduly delayed. IAF, Tab 8
at 12-13. The Board has found that undue delays in administering medical
treatment can constitute a substantial and specific danger to public health and
safety. Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 20 (2013);
Parikh, 116 M.S.P.R. 197, ¶ 15. We find that the appellant in this case could
have reasonably believed that the alleged delays at issue constituted such a
danger.
¶12The appellant further identified four instances in which Nuclear Medicine
Technicians made clinical decisions on their own without consulting a physician,
allegedly in violation of unspecified “standards meant to ensure quality care and
patient safety.” Id. at 11-13. She asserted that clinical determinations are
reserved to physicians with clinical privileges and that Nuclear Medicine5
Technicians at the Martinsburg VAMC routinely exceeded their authority by
making such determinations on their own. IAF, Tab 13 at 5-6. According to the
appellant, “the requirement for [agency] employees to have clinical privileges
authorizing independent practice is common knowledge to every healthcare
practitioner, and the [agency’s] standards for privileges are specifically defined in
writing.” Id. at 6. The Board, however, is not privy to the “common knowledge”
of agency healthcare practitioners that the appellant cites in lieu of an actual law,
rule, or regulation. Nor does there appear to be any information in the record that
would help us to decide whether the technicians in these incidents were, in fact,
making “clinical determinations” that must be reserved for a physician.
Nevertheless, construing the appellant’s jurisdictional pleadings in the most
favorable light and considering her expertise as a physician for more than
30 years, we find that she made a nonfrivolous allegation that the Nuclear
Medicine Technicians violated some rule or regulation by asserting independent
clinical judgment.4 See Ingram v. Department of the Army , 114 M.S.P.R. 43, ¶ 10
(2010) (finding that any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction); Embree v. Department of the Treasury , 70 M.S.P.R. 79, 85 (1996)
(considering the appellant’s expertise in finding that she made a nonfrivolous
allegation of gross mismanagement); Van Ee v. Environmental Protection Agency ,
64 M.S.P.R. 693, 698 (1994) (considering the appellant’s expertise in finding that
she made a nonfrivolous allegation of a gross waste of funds).
¶13Finally, the appellant identified four incidents in which hospital staff
allegedly provided substandard medical care by failing to administer certain tests
or scans properly. IAF, Tab 8 at 12. Similar to the allegations discussed above
concerning clinical determinations, the appellant asserts that standards of care
were violated without identifying the source of the standards. Id. Nevertheless,
4 Alternatively, we find that the appellant could reasonably have perceived a substantial
and specific danger to public health and safety to the extent that the agency was
implementing medical decisions made by unqualified individuals. 6
the appellant did specify what she believed the shortcomings in these incidents
were, and considering her expertise as a physician, we find that she could
reasonably have believed that hospital staff were creating a substantial and
specific danger to public health and safety by providing substandard medical care.
Id.
¶14We disagree with the administrative judge that the appellant’s allegations of
rule violations and dangers to public health and safety lacked the requisite
specificity to constitute nonfrivolous allegations. ID at 4-6. The appellant
supported her allegations with concrete facts and explained, albeit in general
terms, how the hospital staff’s actions fell short of standards. IAF, Tab 8
at 11-14. This contrasts with other appeals in which the Board has found that
allegations of wrongdoing were not sufficiently specific. For instance, in
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 7 (2016), the appellant
submitted his correspondence with another agency official and asserted that the
other official “demonstrated a disregard for compliance issues,” but he did not
explain how compliance protocol were being violated, nor was any such
noncompliance apparent on its face. Likewise, in Boechler v. Department of the
Interior, 109 M.S.P.R. 542, ¶ 12 (2008), aff’d, 328 F. App’x. 660 (Fed. Cir.
2009), the appellant alleged that he raised “serious concerns about matters of
public safety” regarding the agency’s termination of a contract, but it was unclear
how public safety was implicated by these events, and the appellant did not
explain. We also disagree with the administrative judge’s finding that the
appellant described actions by hospital staff upon which reasonable people could
disagree. ID at 6. Disclosures concerning reasonably debatable differences about
agency policy are not protected under the Whistleblower Protection Act. White v.
Department of the Air Force , 95 M.S.P.R. 1, ¶ 37 (2003), aff’d, 391 F.3d 1377
(Fed. Cir. 2004). However, we find that violations of hospital safety protocol and
the provision of substandard medical care do not fall into that category.7
¶15Nevertheless, to establish jurisdiction over an IRA appeal, it is not enough
for an appellant to allege instances of danger or wrongdoing. Rather, the focus of
the analysis is on the appellant’s disclosure of such danger or wrongdoing. See
Linder, 122 M.S.P.R. 14, ¶ 6. In this case, it appears that the appellant is alleging
five protected disclosures. Regarding the first disclosure, the appellant alleged
that she “brought her concerns” to the Service Chief on an unspecified date (but
apparently prior to January 2017). IAF, Tab 8 at 13. Regarding the second
disclosure, the appellant alleged that, in January 2017, she “escalated her
concerns” to the Martinsburg VAMC Chief of Staff. Id. Regarding the third,
fourth, and fifth disclosures, the appellant alleged that she elevated her
“concerns” to the “VAMC’s Director” on April 11, 2017, and sent additional and
clarifying information to him on April 25 and May 17, 2017. IAF, Tab 3 at 13,
Tab 13 at 4-5. We infer that these “concerns” consisted of some or all of the
fifteen incidents that the appellant described.5 As explained above, the appellant
made nonfrivolous allegations that she reasonably believed that these incidents
entailed violations of law, rule, or regulation, or substantial and specific dangers
to public health and safety. Supra ¶¶ 9-13. We therefore find that the appellant
has nonfrivolously alleged that these disclosures were protected.
The appellant made a nonfrivolous allegation that her disclosures were a
contributing factor in two personnel actions.
¶16The term “personnel action” is defined at 5 U.S.C. § 2302(a)(2)(A). It
covers various agency actions, including terminations and significant changes in
duties, responsibilities, and working conditions. 5 U.S.C. § 2302(a)(2)(A)(iii),
(xii). The appellant in this case has not clearly described the personnel actions
that she is alleging in this appeal. In her prehearing submission, she states, “The
actions the VAMC took against appellant are as follows,” and proceeds with a
5 The appellant’s first disclosure may have been oral, but it appears that the other four
disclosures were in writing and that the appellant submitted copies of these disclosures
to OSC. IAF, Tab 8 at 13 & n.6. Inexplicably, the appellant has neglected to file this
same crucial evidence with the Board.8
confusing narrative account of events between April and June 2017. IAF, Tab 13
at 6-9. The appellant then asserts that the issue in the appeal is whether her
termination was in retaliation for protected whistleblowing. Id. at 9. Our best
interpretation of the appellant’s pleading is that she is alleging two personnel
actions: (1) a significant change in duties, responsibilities, and working
conditions associated with the suspension of her clinical privileges and the
proceedings attendant thereto, and (2) her July 28, 2017 termination.
¶17Regarding the appellant’s first disclosure, it would appear that she made
this disclosure to the Service Chief in late 2016. IAF, Tab 8 at 13. According to
the appellant, on May 22, 2017, the Service Chief recommended to the hospital’s
credentialing committee that the appellant’s clinical privileges not be renewed.
IAF, Tab 8 at 7. In addition, the record shows that, on July 7, 2017, the Service
Chief requested that the agency convene the review board that ultimately
recommended the appellant’s termination. IAF, Tab 11 at 34. It therefore
appears that the Service Chief influenced both of the personnel actions at issue.
See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11 (2012) (finding
that an appellant can establish contributing factor by showing that an individual
with actual knowledge of her disclosure influenced the official accused of taking
the retaliatory action). The time between late 2016 and July 2017 is such that
contributing factor can be inferred via the knowledge/timing test of 5 U.S.C.
§ 1221(e)(1). See Smith v. Department of Agriculture , 64 M.S.P.R. 46, 65 (1994)
(finding that personnel actions taken within 1 year of the protected disclosures
satisfied the knowledge/timing test). We therefore find that the appellant has
made a nonfrivolous allegation that this disclosure was a contributing factor in
both of the claimed personnel actions.
¶18The appellant’s second disclosure was allegedly made to the “VAMC’s
Chief of Staff” in January 2017.6 IAF, Tab 8 at 13. The record below shows that
6 In her prehearing submission, the appellant stated that her whistleblower disclosures
were made to the Service Chief and the Director, without mentioning her disclosure to
the Chief of Staff. IAF, Tab 13 at 5. However, it is not clear to us that the appellant’s9
there were multiple Acting Chiefs of Staff during 2017, but the appellant did not
give the name of the individual to whom she made her disclosure. IAF, Tab 10
at 33, Tab 11 at 34. For the first time on petition for review, the appellant
identifies this individual by name as someone other than the two Acting Chiefs of
Staff who the record shows may have had something to do with the personnel
actions. PFR File, Tab 1 at 9; IAF, Tab 10 at 33, Tab 11 at 34, 39, 44. It would
appear that the Chief of Staff to whom the appellant made her disclosure left
shortly after receiving the disclosure and was replaced by a succession of Acting
Chiefs of Staff who encumbered the position at the time of the personnel actions.
We see nothing in the record to suggest that the Chief of Staff to whom the
appellant made her disclosure had anything to do with the personnel actions.
Nevertheless, the appellant alleges that the Service Chief was aware of her
disclosure to the Chief of Staff and consequently recommended her employment
be reviewed for “failing to recognize the chain of command.” PFR File, Tab 1
at 10; IAF, Tab 11 at 34. Because it appears that the Service Chief influenced
both personnel actions, we find that the appellant made a nonfrivolous allegation
that her second disclosure was a contributing factor as well.
¶19The appellant alleged below that she made her third, fourth, and fifth
disclosures to the “VAMC’s Director,” Mr. W., in April and May 2017. IAF,
Tab 8 at 4-5, 13, Tab 13 at 4-5. In reviewing documentary evidence, however, we
observed that a different individual, Dr. C., was Director of the Martinsburg
VAMC during this time period, and there was no documentary evidence bearing
Mr. W’s name anywhere else in the record. IAF, Tab 10 at 30-31, Tab 11
at 68-69. The appellant has clarified this matter on petition for review, where she
identifies Mr. W. as Director of the Capitol Veterans Integrated Service Network
(VISN 5). PFR File, Tab 1 at 9. It therefore appears that the appellant made her
third, fourth, and fifth disclosures to the VISN 5 Director, Mr. W., and not to the
Martinsburg VAMC Director, Dr. C. The appellant does not allege, and there is
omission was intentional, so we have considered this alleged disclosure as well.10
nothing in the record to suggest, that the VISN 5 Director had anything to do with
the personnel actions at issue. Nevertheless, as with the disclosure to the Chief of
Staff, the appellant alleges that the Service Chief was aware of her disclosures to
the VISN 5 Director, as evidenced by her remarks regarding the appellant’s
failure to recognize the chain of command. PFR File, Tab 1 at 10; IAF, Tab 11
at 30. We therefore find that the appellant has made a nonfrivolous allegation
that her third, fourth, and fifth disclosures were contributing factors in the
personnel actions.
¶20Because the appellant exhausted her administrative remedies with OSC and
has nonfrivolously alleged that her disclosures were protected and were
contributing factors in two personnel actions, we find that she has established
jurisdiction over her appeal. See Lane v. Department of Homeland Security ,
115 M.S.P.R. 342, ¶ 35 (2010). We therefore remand the appeal for adjudication
of the merits, including the appellant’s requested hearing. IAF, Tab 1 at 2.
ORDER
¶21For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Sultana_RaziaNY-1221-19-0194-W-1_Remand_Order.pdf | 2024-02-16 | RAZIA SULTANA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-19-0194-W-1, February 16, 2024 | NY-1221-19-0194-W-1 | NP |
2,307 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Leotis_M_DA-315H-19-0326-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEOTIS M. JOHNSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-315H-19-0326-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
eotis M. Johnson , New Orleans, Louisiana, pro se.
Raquelle M. Badeaux-Phillips , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his termination during his probationary period for lack of
jurisdiction. On petition for review, the appellant states that he disagrees with the
initial decision and that the agency denied him a union representative. 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.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 After the close of the record on petition for review, the agency filed a motion for leave
to file a response to the appellant’s petition for review, contending that the appellant
failed to serve the petition on it as required by the Board’s regulations and that it only
recently learned of the petition for review. Petition for Review (PFR) File, Tab 3.
Although the agency is correct that the appellant failed to serve the agency, as
explained in the Board’s letter acknowledging the petition for review, it was serving the
agency with a copy of the petition for review. PFR File, Tab 2. Thus, the agency was
provided with the petition for review and had an opportunity to respond. Accordingly,
we deny the agency’s motion.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Johnson_Leotis_M_DA-315H-19-0326-I-1_Final_Order.pdf | 2024-02-16 | LEOTIS M. JOHNSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-315H-19-0326-I-1, February 16, 2024 | DA-315H-19-0326-I-1 | NP |
2,308 | https://www.mspb.gov/decisions/nonprecedential/Polanco_EvelynDC-0752-16-0274-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVELYN POLANCO,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-16-0274-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Macomber , Esquire, Albany, New York, for the appellant.
Andrea Belanger , Washington Navy Yard, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the charges, that she
did not prove her allegations of sex and age discrimination and retaliation for
filing equal employment opportunity complaints, that she did not prove that she
was denied due process, and that the removal penalty was reasonable. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to address the appellant’s
assertion that she was entitled to an opportunity to improve her performance, we
AFFIRM the initial decision.
In her petition for review, the appellant claims that a specification alleging
that she failed to perform tasks assigned by her supervisor was not an allegation
of unprofessional conduct, as the agency charged, but an allegation that she had
performance issues, thereby entitling her to an opportunity to demonstrate
acceptable performance under 5 U.S.C. chapter 43. She contends that the agency
attempted to circumvent this requirement by framing the issue as an
“unprofessional conduct” charge under a chapter 75 disciplinary removal.
Petition for Review File, Tab 4 at 18. It appears that the appellant raised this
issue below, Initial Appeal File, Tab 27 at 35-36, and the administrative judge did
not address it in the initial decision.
The appellant’s assertion that she was entitled to the procedures for
unacceptable performance under chapter 43, which provides for an opportunity to
improve performance before taking a performance-based adverse action, is
unavailing. An agency can take an action for unacceptable performance under2
chapter 43 when an employee’s performance is unacceptable in a critical element
of the position encumbered. See Brookens v. Department of Labor , 120 M.S.P.R.
678, ¶ 9 (2014). There is no evidence here that the appellant’s performance was
unacceptable in a critical element. Further, an agency may take an action for
unacceptable performance under chapter 75, which does not require that the
employee be given an opportunity to improve. Epley v. Inter-American
Foundation, 122 M.S.P.R. 572, ¶ 8 (2015). Thus, the agency was not required to
show that the appellant’s performance was unacceptable. It only needed to show
that her failure to perform certain of her duties was unprofessional, as charged.
See Alvarado v. Department of the Air Force , 103 M.S.P.R. 1, ¶ 22 (2006), aff’d,
626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012).
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.
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 | Polanco_EvelynDC-0752-16-0274-I-1_Final_Order.pdf | 2024-02-16 | EVELYN POLANCO v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-16-0274-I-1, February 16, 2024 | DC-0752-16-0274-I-1 | NP |
2,309 | https://www.mspb.gov/decisions/nonprecedential/Encinas_DanielSF-315H-18-0748-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL ENCINAS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-18-0748-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
aniel Encinas , San Diego, California, pro se.
Katerina L. Chau and Susan M. Tinsley , 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 for lack of jurisdiction his appeal of his termination during his
probationary period. On review, the appellant argues that his termination was
improper. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
With his petition for review, the appellant submits for the first time
documents that he alleges support his assertion that his termination was improper.
The appellant has not shown that these documents were unavailable before the
record before the administrative judge closed despite his due diligence, and we
need not consider them. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980). Moreover, the documents pertain solely to the merits of his termination
and are not material to the threshold question of jurisdiction. Graves v.
Department of the Interior , 8 M.S.P.R. 500, 501 (1981) (finding that, i n an appeal
of a probationary termination, the merits of the underlying termination are not
within the Board’s purview).
After fully considering the filings in this appeal, we conclude that 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
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Encinas_DanielSF-315H-18-0748-I-1_Final_Order.pdf | 2024-02-16 | DANIEL ENCINAS v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-18-0748-I-1, February 16, 2024 | SF-315H-18-0748-I-1 | NP |
2,310 | https://www.mspb.gov/decisions/nonprecedential/James_Paul_H_AT-0752-20-0305-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL H. JAMES, III,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-20-0305-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric F. Adams , Esquire, Huntsville, Alabama, for the appellant.
Flora L. Thompson , Esquire, Mobile, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal. For the reasons set forth below, we DISMISS the appeal as settled.
¶2After the filing of the petition for review, the parties submitted a document
entitled “NEGOTIATED SETTLEMENT AGREEMENT” and dated
December 11, 2023. Petition for Review (PFR) File, Tab 6 at 4. The document
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
provides, among other things, that the appellant will withdraw the underlying
appeal. Id. at 4-5.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 6 at 7. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances. In addition, we find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | James_Paul_H_AT-0752-20-0305-I-1_Final_Order.pdf | 2024-02-16 | null | AT-0752-20-0305-I-1 | NP |
2,311 | https://www.mspb.gov/decisions/nonprecedential/Anderson_ClaudetteDA-0752-17-0251-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLAUDETTE ANDERSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-17-0251-I-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Claudette Anderson , Lancaster, Texas, pro se.
Angie Wiesman , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action suspending her from her position for 30 days. On
petition for review, the appellant appears to reargue her case. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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.2 Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to apply the Board’s decision in Pridgen v. Office of
Management and Budget , 2022 MSPB 31, to the appellant’s allegations of
discrimination and retaliation, we AFFIRM the initial decision.
Applying the standard set forth in cases such as Savage v. Department of
the Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen , 2022 MSPB
31, ¶¶ 23-25, the administrative judge found that the appellant failed to establish
that her race, sex, and prior equal employment opportunity activity were
motivating factors in the agency’s suspension action. Initial Appeal File (IAF),
Tab 53, Initial Decision at 16-17. The appellant has shown no error in these
findings, with which we agree. We therefore need not analyze whether the
2 With her petition, Petition for Review (PFR) File, Tab 5 at 21-159, and with her
addendum, PFR File, Tab 6 at 8-66, the appellant has included numerous submissions,
including photos, a senator’s press release, and various reports. None of these
documents is new, Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding
that the Board will generally 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), and none is material to the dispositive issues
in this appeal, Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding
that the Board will generally not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision) . Therefore, we have not considered these submissions. In
addition, an affidavit from a fellow employee that the appellant has submitted on
review, PFR File, Tab 5 at 142, was a part of the record below, Initial Appeal File,
Tab 49 at 43, and is therefore not new evidence. Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980).
3
appellant could prove that discrimination was a but-for cause of the action, as that
standard is a higher burden than motivating factor. Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶ 31; Pridgen, 2022 MSPB 31, ¶¶ 20-22, 48.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Anderson_ClaudetteDA-0752-17-0251-I-1_Final_Order.pdf | 2024-02-16 | CLAUDETTE ANDERSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-17-0251-I-1, February 16, 2024 | DA-0752-17-0251-I-1 | NP |
2,312 | https://www.mspb.gov/decisions/nonprecedential/Sanderson_William_G_DC-0432-17-0704-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM G. SANDERSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0432-17-0704-I-1
DATE: February 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
A
dam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Andrew Hass , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under chapter 43. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Effective July 18, 2017, the agency removed the appellant, a GS-13
Program Analyst, from Federal service for unacceptable performance following
his unsuccessful completion of a Performance Improvement Plan (PIP). Initial
Appeal File (IAF), Tab 6 at 49-51, 59. The appellant timely appealed his removal
to the Board. IAF, Tab 1. Although the appellant initially requested a hearing,
id. at 2, he later withdrew his hearing request, and the appeal was decided on the
written record, IAF, Tab 29, Initial Decision (ID) at 1. In an initial decision, the
administrative judge affirmed the appellant’s removal, finding that the agency
met its burden to prove the elements of a chapter 43 action and that the appellant
failed to prove his affirmative defenses of whistleblower reprisal, age
discrimination, and retaliation for prior equal employment opportunity (EEO)
activity. ID at 1-21. The appellant has filed a petition for review, the agency has
filed a response, and the appellant has filed a reply. Petition for Review (PFR)
File, Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
When the initial decision was issued, the Board’s case law stated that, in
an appeal of a performance-based removal under chapter 43, the agency was
required to prove the following elements by substantial evidence: (1) the Office
of Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) his performance
standards were valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the
appellant of the inadequacies of his performance during the appraisal period and
gave him an adequate opportunity to demonstrate acceptable performance; and
(5) after an adequate improvement period, his performance remained
unacceptable in at least one critical element. Lee v. Department of Veterans2
Affairs, 2022 MSPB 11, ¶ 13. The administrative judge found that the agency
proved each element by substantial evidence. ID at 6-13.
On review, the appellant reiterates many of the same arguments that
he raised before the administrative judge, and he has challenged the
administrative judge’s findings with respect to elements 1, 3, and 4. PFR File,
Tabs 1, 4. The appellant argues that, although OPM approved the agency’s
written performance appraisal system, it did not approve the PIP, which he
alleges contains substantially different tasks than his written performance plan.
PFR File, Tab 4 at 4-5. In this regard, he argues that the agency improperly
changed his performance standards to low-level clerical duties with rigid
requirements and short deadlines under the PIP, allegedly rendering the standards
invalid. PFR File, Tab 1 at 13-17. The appellant also argues that the agency did
not provide him a reasonable opportunity to demonstrate acceptable performance
because he was not in a duty status for a majority of the PIP period and the
agency substantially changed his working environment, including a new
supervisor, change in work location, loss of telework privileges, and the new
tasks required of him under the PIP. Id. at 17-19. Finally, he asserts that the
agency placed him on a PIP in bad faith with a “predetermination” that he would
fail. Id. at 12-14.
We agree with the administrative judge’s finding that OPM approved the
agency’s performance appraisal system. ID at 7. The appellant has provided no
support for his assertion that OPM must approve an individual’s PIP, and we are
aware of none. PFR File, Tab 4 at 4-5. We also agree with the administrative
judge’s finding that the PIP tasks aligned with the appellant’s position description
and that his performance standards were valid. ID at 10. Regarding the
appellant’s argument that he was not given a reasonable opportunity to improve
his performance under the PIP, we agree with the administrative judge that, under
the circumstances, the agency gave the appellant a reasonable opportunity to
improve. ID at 11-12. The appellant has not challenged, and we find no reason3
to disturb, the administrative judge’s findings as to the second and fifth elements.
ID at 8, 12-13.
Notwithstanding, remand is required for a different reason. While this case
was pending on review, the U.S. Court of Appeals for the Federal Circuit
recognized for the first time that an agency must prove an additional element to
support an adverse action charge under chapter 43. Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355, 1360 -61 (Fed. Cir. 2021).
Specifically, the agency “must justify institution of a PIP” by proving the
employee’s performance was unacceptable before the PIP. Id. at 1360; Lee,
2022 MSPB 11, ¶ 14. The holding applies to all pending cases, regardless of
when the events took place. Lee, 2022 MSPB 11, ¶ 16. Although the record
contains some evidence concerning the appellant’s pre -PIP performance, the
parties were not on notice as to this element, and, accordingly, we must remand
the appeal to give the parties the opportunity to present additional evidence as to
whether the appellant’s performance was unacceptable in one or more critical
elements prior to the issuance of the PIP. See id., ¶¶ 15-17. On remand, the
administrative judge shall accept argument and evidence on this issue and shall
hold a supplemental hearing, if appropriate. The administrative judge shall then
issue a new decision consistent with Santos. See id., ¶ 17. If the agency makes
the additional showing required under Santos on remand, the administrative judge
may incorporate his prior findings on the other elements of the agency’s case in
the remand initial decision. See id.
On review, the appellant has also challenged the administrative judge’s
weighing of the evidence with respect to his age discrimination and EEO
retaliation claims. PFR File, Tab 1 at 20. We find no basis to disturb the
administrative judge’s well-reasoned findings that the appellant failed to prove
that his age or EEO activity were a motivating factor in the agency’s decision to4
remove him.2 ID at 13-16; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
106 (1997) (holding that the Board will not disturb an administrative judge’s
findings when he considered the evidence as a whole, drew appropriate
references, 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).
To the extent the appellant wishes to introduce evidence and argument concerning
his age discrimination claim and EEO retaliation claim as it relates to his pre-PIP
performance, the administrative judge shall allow the parties to submit such
evidence on remand and hold a supplemental hearing, if appropriate. In the
remand initial decision, the administrative judge shall explain if any new
argument or evidence affects the findings contained in the initial decision. As
appropriate, he may adopt his findings from the initial decision.
The appellant has also challenged the administrative judge’s findings
concerning his whistleblower reprisal affirmative defense. PFR File, Tab 1
at 20-21. Contrary to the appellant’s assertion on review, we find that the
administrative judge applied the correct legal standard when evaluating this
claim. ID at 17-21. The appellant’s remaining arguments constitute mere
disagreement with the administrative judge’s weighing of the evidence, and we do
not find them persuasive. PFR File, Tab 1 at 20-21; see Crosby, 74 M.S.P.R.
at 106; Broughton, 33 M.S.P.R. at 359. To the extent the appellant wishes to
introduce evidence and argument concerning his whistleblower retaliation defense
as it relates to his pre-PIP performance, the administrative judge shall accept such
evidence from the parties on remand and hold a supplemental hearing, if
appropriate. In the remand initial decision, the administrative judge shall explain
if any new argument or evidence affects the findings contained in the initial
decision. As appropriate, he may adopt his findings from the initial decision.
2 Since the issuance of the initial decision, the Board issued its decision in Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30-33, which clarified the
evidentiary standards and burdens of proof for age discrimination and EEO retaliation
claims arising under Title VII. Pridgen does not require a different result. 5
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Sanderson_William_G_DC-0432-17-0704-I-1_Remand_Order.pdf | 2024-02-16 | WILLIAM G. SANDERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0432-17-0704-I-1, February 16, 2024 | DC-0432-17-0704-I-1 | NP |
2,313 | https://www.mspb.gov/decisions/nonprecedential/Niskey_LarryDC-1221-18-0403-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY NISKEY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-18-0403-W-1
DATE: February 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
arry Niskey , Easton, Maryland, pro se.
Felippe Moncarz , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
(1) clarify that the appellant was required to show by a preponderance of the
evidence that he exhausted his administrative remedies before the Office of
Special Counsel (OSC), and (2) VACATE the administrative judge’s finding that
the appellant’s challenge to his removal is barred by res judicata, we AFFIRM the
initial decision.
To establish jurisdiction over an IRA appeal, an appellant must show by a
preponderance of the evidence2 that he exhausted his administrative remedies
with OSC and make nonfrivolous allegations3 that (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined at 5 U.S.C. § 2302(b)(a). 5 U.S.C. §§ 1214(a)(3),
2 Preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would need to find that a contested fact is
more likely true than not. 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). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues
in the appeal. Id. 2
1221(e)(1); Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see
5 C.F.R. § 1201.57(b)-(c).
The administrative judge correctly stated in the jurisdictional order that the
appellant was required to show by preponderant evidence that he exhausted his
remedy with OSC. Initial Appeal File (IAF), Tab 3 at 2. In contrast, the initial
decision contains language erroneously suggesting that the appellant could have
satisfied his burden by making a nonfrivolous allegation to that effect. IAF,
Tab 10, Initial Decision at 3. This error does not warrant a different result,
however, as the appellant failed to meet his burden under the correct evidentiary
standard, i.e., preponderance of the evidence. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is
not prejudicial to a party's substantive rights provides no basis for reversal of an
initial decision).
The purpose of requiring an appellant to exhaust his remedies with OSC
before filing an IRA appeal with the Board is to give OSC the opportunity to take
corrective action before involving the Board in the case. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10. The substantive
requirements of exhaustion are met when an appellant has provided OSC with
sufficient basis to pursue an investigation. Id. The sufficiency of the claim is
determined by the statements made in the appellant’s submissions to OSC, not in
the appellant’s later characterization of those statements. Ellison v. Merit
Systems Protection Board , 7 F.3d 1031, 1036 (Fed. Cir. 1993). The Board may
consider only the disclosures (or activities) and personnel actions that the
appellant raised before OSC. Ormond v. Department of Justice , 118 M.S.P.R.
337, ¶ 5 (2012). An appellant may show exhaustion of the OSC process through
means other than his OSC complaint. Pasley v. Department of the Treasury ,
109 M.S.P.R. 105, ¶ 12 (2008); see Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011) (holding that exhaustion can be demonstrated
through the appellant’s initial OSC complaint, evidence the original complaint3
was amended, and the appellant’s written responses to OSC referencing the
amended allegations).
As evidence of exhaustion, the appellant provided copies of the
February 28, 2018 closeout letter in OSC File No. MA-18-1962 and the March 8,
2018 notice of appeal rights in OSC File No. MA-18-1094. IAF, Tab 1 at 18,
Tab 5 at 23. However, neither document specifies what allegations of protected
disclosures and/or protected activity the appellant made in those complaints. Nor
has the appellant provided any other evidence that he exhausted his remedies
before OSC concerning the specific disclosures and/or activities he identified
before the Board. Because the appellant failed to establish the exhaustion
requirement by a preponderance of the evidence, the administrative judge was
correct in her conclusion that he failed to establish jurisdiction over his appeal.4
Finally, because the Board lacks jurisdiction over this appeal, the
administrative judge erred in finding that the appellant’s challenge to his removal
is barred by res judicata. See Hau v. Department of Homeland Security ,
123 M.S.P.R. 620, ¶ 9 (2016) (observing that the Board must have jurisdiction
over an appeal to apply the doctrine of res judicata), aff’d sub nom. Bryant v.
Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). We therefore
vacate that finding.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
4 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.
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
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Niskey_LarryDC-1221-18-0403-W-1_Final_Order.pdf | 2024-02-16 | LARRY NISKEY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-18-0403-W-1, February 16, 2024 | DC-1221-18-0403-W-1 | NP |
2,314 | https://www.mspb.gov/decisions/nonprecedential/Michel_KareemNY-3443-18-0178-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREEM MICHEL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-3443-18-0178-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Atika Muhammad , Brooklyn, New York, for the appellant.
Anthony V. Merlino , 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
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant’s only submission to the administrative judge indicated that
he was trying to appeal the failure to schedule a mediation date regarding an
equal employment opportunity (EEO) claim. Initial Appeal File (IAF), Tab 1
at 5, 7. After the appellant failed to respond to the administrative judge’s
jurisdictional order, the administrative judge dismissed the appeal on the grounds
that he had failed to make a nonfrivolous allegation that he had been subjected to
an appealable action. IAF, Tab 5, Initial Decision.
On review, the appellant explains that he resigned from his position with
the Postal Service on January 20, 2018. Petition for Review (PFR) File, Tab 1
at 4. However, approximately 1 month after tendering his resignation, the
appellant decided that he wanted his job back. Id. He avers that human resources
initially informed him that the Postal Service had not processed his resignation;
accordingly, he returned to work on March 31, 2018. Id. The appellant indicates
that he continued to work his usual shift until May 18, 2018, when the agency
informed him that he was no longer an employee on account of his resignation.
Id. at 5. The appellant contends that “EEO was suppose[d] to be helping [him]”
sort through issues related to his employment status but failed to do so. Id. He
more specifically alleges that “EEO [failed] to set up a mediation” and that this
failure prompted his appeal to the Board. Id. The appellant also provides2
documentary evidence, none of which was submitted to the administrative judge.
Id. at 7-40.
The appellant’s arguments on review fail to show any error in the
administrative judge’s conclusion that, based on the record before him, the
appellant had failed to make a nonfrivolous allegation that he had been subjected
to an appealable action. Although the appellant has provided additional
allegations on review, he has provided no explanation as to why he did not
present these allegations prior to the close of the record, as required. See
5 C.F.R. § 1201.114(b). The documents he provides on review are similarly
irrelevant, and the appellant again provides no explanation as to why he did not
timely submit these filings to the administrative judge. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.114(b).
Further, to the extent that the appellant is attempting to challenge other
actions, such as circumstances regarding his resignation, return to work, and
potential subsequent termination, he has not made nonfrivolous allegations that
he is the type of Postal employee who has Board appeal rights. A Postal Service
employee may file a Board appeal challenging an adverse action taken under
5 U.S.C. chapter 75 only if (1) he is a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity, and (2) he has completed 1 year of
continuous service in the same or similar positions. IAF, Tab 3 at 1-2; see
Toomey v. U.S. Postal Service , 71 M.S.P.R. 10, 12 (1996).2 Here, the appellant
provides numerous Postal Service Form 50s, all of which indicate that he was a
nonpreference-eligible PS-4 Mail Handler. PFR File, Tab 1 at 11, 18-19, 24. To
the extent he seeks to bring a chapter 75 adverse action appeal, he has failed to
make nonfrivolous allegations that he has such appeal rights. See Toomey,
71 M.S.P.R. at 12; see also Hay v. U.S. Postal Service , 103 M.S.P.R. 167, ¶ 7
2 The administrative judge’s jurisdictional order advised the appellant of these criteria,
and thus, he has had a full and fair opportunity to make allegations in this regard. IAF,
Tab 3 at 1-2. 3
(2006) (concluding that the appellant, a PS -4 Mail Handler, was neither a
supervisor or manager nor engaged in personnel work).
The appellant also fails to provide any evidence or argument suggesting
that his claim constitutes a restoration appeal in accordance with 5 C.F.R. part
353. To the contrary, he concedes that he voluntarily resigned from his position
due to financial issues. PFR File, Tab 1 at 4, 7-9, 16. We therefore discern no
basis for jurisdiction in this regard. See Tat v. U.S. Postal Service , 109 M.S.P.R.
562, ¶ 9 (2008) (explaining that to be entitled to restoration rights in accordance
with 5 C.F.R. part 353 an employee must have been separated from an
appointment as a result of a job-related medical condition accepted by the Office
of Workers’ Compensation Programs).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Michel_KareemNY-3443-18-0178-I-1 Final Order.pdf | 2024-02-15 | KAREEM MICHEL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-3443-18-0178-I-1, February 15, 2024 | NY-3443-18-0178-I-1 | NP |
2,315 | https://www.mspb.gov/decisions/nonprecedential/DeVaney_David_D_DA-0841-18-0482-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID D. DEVANEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-18-0482-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David D. DeVaney , Houston, Texas, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying the appellant’s request to repay withdrawn retirement
contributions. On petition for review, the appellant argues that the administrative
judge failed to address his argument regarding an OPM manual and that he was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
misled by OPM into requesting a refund. Generally, we grant petitions such as
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. | DeVaney_David_D_DA-0841-18-0482-I-1 Final Order.pdf | 2024-02-15 | DAVID D. DEVANEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-18-0482-I-1, February 15, 2024 | DA-0841-18-0482-I-1 | NP |
2,316 | https://www.mspb.gov/decisions/nonprecedential/Clancy_Megan_A_NY-0843-19-0012-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MEGAN ARLINE CLANCY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0843-19-0012-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Megan Arline Clancy , Cohocton, New York, 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
dismissed her appeal as untimely filed without good cause shown. On petition for
review, the appellant responds to the administrative judge’s order on timeliness,
to which she did not respond below, by alleging that she received the Office of
Personnel Management’s final decision 14 days late. She also suggests, for the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
first time, that her untimeliness is attributable to her attorney. Generally, we
grant petitions such as 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 | Clancy_Megan_A_NY-0843-19-0012-I-1__Final_Order.pdf | 2024-02-15 | MEGAN ARLINE CLANCY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0843-19-0012-I-1, February 15, 2024 | NY-0843-19-0012-I-1 | NP |
2,317 | https://www.mspb.gov/decisions/nonprecedential/Stecchi_Walter_F_PH-0842-18-0360-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WALTER F. STECCHI, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0842-18-0360-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Walter F. Stecchi, Jr. , Mashpee, Massachusetts, 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
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
argues the merits of his retirement application, but he does not address the
jurisdictional issue.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 When, as here, the Office of Personnel Management (OPM) completely rescinds a
final decision, the Board no longer has jurisdiction over the appeal in which that final
decision is at issue, and the appeal must be dismissed. See, e.g., Richardson v. Office of
Personnel Management , 101 M.S.P.R. 128, ¶ 3 (2006). OPM has indicated that it will
further review the appellant’s retirement file and issue a new final decision. Initial
Appeal File, Tab 7 at 4. The appellant may file an appeal of OPM’s new final decision,
once it is issued, if he is dissatisfied with it. See 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Stecchi_Walter_F_PH-0842-18-0360-I-1__Final_Order.pdf | 2024-02-15 | null | PH-0842-18-0360-I-1 | NP |
2,318 | https://www.mspb.gov/decisions/nonprecedential/Carroll_Michael_S_DA-0845-19-0185-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL S. CARROLL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-19-0185-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael S. Carroll , Plano, Texas, pro se.
Linnette Scott and Tiffany Slade , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its final decision to rescind its approval of
the appellant’s application for a Federal Employees’ Retirement System (FERS)
disability retirement annuity. 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. Except as expressly MODIFIED to
address the effect of the appellant’s reemployment on his eligibility for a
disability retirement annuity, we AFFIRM the initial decision.
BACKGROUND
The following facts are undisputed. The appellant was a CG -09
Compliance Examiner for the Federal Deposit Insurance Corporation (FDIC),
covered under FERS. Initial Appeal File (IAF), Tab 8 at 35. On February 20,
2015, the FDIC removed him for performance reasons. Id. On or about
February 19, 2016, the appellant filed an application for a disability retirement
annuity. IAF, Tab 9 at 2. While his disability retirement application was still
pending, on May 15, 2016, the appellant resumed Federal service with the Social
Security Administration (SSA). Id. On April 19, 2017, OPM granted the
appellant’s disability retirement application. Id. On June 28, 2017, the appellant
resigned from his position with the SSA. Id. On July 17, 2017, OPM received an
Individual Retirement Record from the SSA, apparently learning for the first time
of the appellant’s reemployment with that agency. IAF, Tab 8 at 5, 40-47.
On June 25, 2018, OPM issued an initial decision rescinding its approval of
the appellant’s disability retirement application based on the appellant’s2
reemployment with the SSA.2 IAF, Tab 8 at 24-26. OPM reasoned that the
appellant’s reemployment constituted a voluntary withdrawal of his application.
Id. at 24. The appellant requested reconsideration, and on January 30, 2019,
OPM issued a final decision affirming the initial decision. Id. at 9-16. In its final
decision, OPM reasoned that the appellant’s disability retirement application was
not made from the position of his “current employment” with SSA. Id. at 9.
The appellant filed a Board appeal, challenging the merits of OPM’s final
decision. IAF, Tabs 1, 9. He waived his right to a hearing. IAF, Tab 12. After
the close of the record, the administrative judge issued an initial decision
reversing OPM’s final decision. IAF, Tab 15, Initial Decision (ID). He found
that OPM’s regulations at 5 C.F.R. § 844.203(c)(2) prescribe a specific set of
circumstances in which OPM is permitted to rescind a decision allowing an
application for FERS disability retirement, and that those circumstances were not
present in the instant appeal. ID at 4-6.
OPM has filed a petition for review, disputing the administrative judge’s
legal analysis. Petition for Review (PFR) File, Tab 1. The appellant has filed a
response. PFR File, Tab 5.
ANALYSIS
An employee who completes at least 18 months of civilian service
creditable under FERS and becomes disabled shall, upon application to OPM, be
granted a disability retirement annuity. 5 U.S.C. § 8451(a)(1)(A); see generally
5 C.F.R. part 844, subpart B. In making its decision, OPM will review the
disability retirement application and its supporting documentation to determine
whether the applicant meets the eligibility criteria of 5 C.F.R. § 844.103.
2 Prior to that rescission, OPM took an overpayment action against the appellant’s
annuity. The appellant filed a Board appeal, OPM rescinded its decision, and the
administrative judge dismissed the appeal for lack of jurisdiction. Carroll v. Office of
Personnel Management , MSPB Docket No. DA-0845-18-0317-I-1, Initial Decision
(June 21, 2018).3
5 C.F.R. § 844.203(c)(1). OPM’s authority to rescind a decision granting FERS
disability retirement is limited as follows:
OPM may rescind a decision to allow an application for disability
retirement at any time if OPM determines that the original decision
was erroneous due to fraud, misstatement of fact, or upon the
acquisition of additional medical or other documentation.
5 C.F.R. § 844.203(c)(2).
In this case, the administrative judge found that the appellant did not make
any misstatements of fact or commit fraud upon which OPM relied in granting the
disability annuity, and that OPM did not obtain new medical information that
called into question its original decision. ID at 5 & n.6. Based on this, he
concluded that none of the regulatory criteria for rescinding the decision had been
met. ID at 5-6. On petition for review, OPM argues that its decision was based
on a regulatory reason that the administrative judge did not address, i.e., the
receipt of “other documentation” pertaining to the appellant’s employment with
the SSA. PFR File, Tab 1 at 7-8, 12-14. Because the administrative judge did not
address this issue, we address it here.
We agree with OPM that its rescission was based on the acquisition of
additional documentation related to the appellant’s employment with the SSA.
PFR File, Tab 1 at 12-14. Therefore, this case is unlike Cerone v. Office of
Personnel Management , 85 M.S.P.R. 380, ¶¶ 5-7 (2000), and Longoria v. Office
of Personnel Management , 78 M.S.P.R. 242, 244-45 (1998), in which OPM’s
rescission was based solely on its re-evaluation of extant documentation.
Nevertheless, for the following reasons, we are not persuaded that this new
information supports OPM’s conclusion that its initial award of disability
retirement was in error.
First, OPM argues that, when it processed the appellant’s disability
retirement application, it “was not aware that the appellant could continue to
work because he applied and accepted a position with SSA after he resigned from
FDIC . . . while waiting for OPM’s decision from the FDIC position.” PFR File,4
Tab 1 at 7. We construe this as an argument that the appellant’s employment
with the SSA constituted evidence that he was not, in fact, disabled from
employment in his FDIC position, or that he had actually recovered within 1 year
of the date of his application. Cf. 5 C.F.R. § 844.103(a)(3) (making eligibility for
disability retirement contingent on the disability persisting for at least 1 year
from the date of application). OPM’s regulations address this precise situation:
Reemployment by an agency at any time before age 60 is evidence of
recovery if the reemployment is under an appointment not limited to
a year or less, at the same or higher grade or pay level as the position
from which the disability annuitant retired.
5 C.F.R. § 844.401(d). It is undisputed that the appellant’s employment with the
SSA was at a lower pay level than his employment with the FDIC. IAF, Tab 8
at 41-42. We therefore find that the appellant’s reemployment with the SSA did
not constitute evidence of recovery, and that it does not otherwise tend to show
that the appellant was not disabled from performing useful and efficient service
as a CG-09 Compliance Examiner.
Second, OPM argues that it erred in granting the appellant’s disability
retirement application because it did not evaluate his application in light of his
“current” position with the SSA but instead evaluated it in light of his prior
position with the FDIC. PFR File, Tab 1 at 5-9. Under 5 C.F.R. § 844.102,
“disability” means “inability, because of disease or injury to render useful and
efficient service in the employee’s current position.” The question, therefore, is
whether the appellant’s “current” position was his position with the FDIC or his
position with the SSA. For the following reasons, we find that it was the former.
As a general rule, the Board must defer to an agency’s interpretations of
the regulations it promulgates, as long as the regulation is ambiguous and the
agency’s interpretation is neither plainly erroneous nor inconsistent with the
regulation. Gose v. U.S. Postal Service , 451 F.3d 831, 836 (Fed. Cir. 2006).
Such deference is warranted, however, only when the regulation at issue remains
genuinely ambiguous even after all the traditional tools of construction are5
applied. Kisor v. Wilkie , 139 S. Ct. 2400, 2415 (2019). In construing a
regulation, the Board will consider its plain language, the common meaning of
the terms, and the text of the regulation both as a whole and in the context of its
surrounding sections. Aqua Products, Inc. v. Matal , 872 F.3d 1290, 1316
(Fed. Cir. 2017).
In this case, OPM interprets the term “current position” in its FERS
disability retirement regulations to mean the last position held prior to its
decision on a disability retirement application. OPM does not explain why it
interprets the term this way, and the regulations do not expressly define it.
However, reading the definition of “disability” in 5 C.F.R. § 844.102 together
with condition of eligibility set forth in 5 C.F.R. § 844.103(a)(2), it is clear to us
that “current position” in this context means the position that the applicant held
when he became disabled. Because the appellant became disabled during his
employment with the FDIC, we find that CG-09 Compliance Examiner is his
“current position” for purposes of disability retirement.
In addition, we observe as a practical matter that a disability retirement
application must be based on a position that the applicant has already held or is
currently holding and not on some position that he might hold in the future.
Therefore, the term “current position” can only refer to a position held during or
prior to the date of the application. As OPM tacitly acknowledges on review, its
interpretation would require that the appellant’s application for disability
retirement from the FDIC be nullified and replaced with a new disability
retirement application from the SSA. PFR File, Tab 1 at 3. However, OPM’s
regulations do not authorize it to unilaterally nullify a disability retirement
application for any reason, much less when the application establishes the literal
eligibility requirements of 5 C.F.R. § 844.103.
Furthermore, we observe that OPM’s regulations contemplate that a
disability retirement annuitant may secure subsequent Federal employment while
he is still receiving his annuity. 5 C.F.R. §§ 844.401(d), 844.402(a). The6
disability annuity may then terminate, but only if certain criteria are met, and
even then, it may not terminate immediately. Id. OPM has not explained why
Federal reemployment during the pendency of a disability retirement application
should serve to void the application ab initio and Federal reemployment after the
application is granted should not. We cannot discern any reason to make such a
distinction, but we can discern several reasons not to do so.
First, the regulations themselves make no such distinction. Second, the
starting point for computing a disability retirement annuity is the annuitant’s
average pay. 5 C.F.R. § 844.301(b)-(c). Therefore, OPM’s insistence that the
appellant’s disability retirement application be based on his subsequent separation
from a lower-paid position would deprive him of a benefit that the FERS
disability retirement regulations were meant to protect. Third, a disability
retirement annuity will generally commence on the day after the employee
separates. 5 C.F.R. § 844.301. Regardless of how long OPM’s adjudication
takes, the annuitant will eventually receive an annuity retroactive to his date of
separation. See Widmer v. Office of Personnel Management , 103 M.S.P.R. 363,
¶ 10 (2006). Therefore, OPM’s insistence that the appellant’s disability
retirement be based on his separation from the position in which he was
reemployed stands to deprive him of well over 2 years’ worth of disability
retirement annuity, again depriving him of a benefit that the regulations were
meant to protect. Fourth, an employing agency’s offer of accommodation at the
same grade or pay precludes disability retirement, but an offer of reassignment to
a position at a lower grade or pay level does not. Bell v. Office of Personnel
Management, 99 M.S.P.R. 133, ¶ 15 (2005); see 5 C.F.R. §§ 844.102,
844.103(a)(5). We see no reason that the appellant’s reemployment at the SSA in
a lower-paid position should preclude his disability retirement any more than
would a comparable offer of reassignment by the FDIC. Fifth, we find that
OPM’s interpretation would make an individual’s disability retirement rights
partially contingent on the amount of time that it takes OPM to process his7
application, i.e., contingent on whether OPM finishes processing his application
before or after he secures reemployment. The Board has found in an analogous
context that disciplinary suspensions contingent on the amount of time that it
takes to complete the grievance process are arbitrary on their face. Milligan v.
U.S. Postal Service , 106 M.S.P.R. 414, ¶ 13 (2007). We decline to interpret
OPM’s regulations so as to introduce an element of arbitrariness into the FERS
disability retirement process.
Considering OPM’s FERS disability retirement regulations as a whole,
according to their plain language and in light of their overall purpose, we find
that there is no genuine ambiguity with respect to the term “ current position.”
We find that the appellant properly applied for disability retirement from his
CG-09 Compliance Examiner position with the FDIC, and that OPM erred in
rescinding its approval of that application based on the appellant’s reemployment
at the SSA. The appellant’s February 19, 2016 disability retirement application
was based on his then-current position of CG-09 Compliance Examiner and, as
OPM concluded, established his eligibility for disability retirement from that
position. The appellant’s subsequent reemployment with the SSA has no bearing
on whether he met the eligibility requirements of 5 C.F.R. § 844.103 with respect
to the position of Compliance Examiner.
In further support of our conclusion, we observe, as did the administrative
judge, that OPM’s regulations provide other more appropriate methods for
addressing this particular situation. ID at 4 & nn.4-5. Specifically,
reemployment by the Federal Government may be grounds for terminating a
disability annuity under 5 C.F.R. part 844, subpart D.3 Unlike OPM’s attempted
3 OPM has not issued a final decision, or even an initial decision, on whether the
appellant’s reemployment with the SSA satisfied the regulatory criteria to terminate the
disability retirement annuity that should have commenced upon his separation from the
FDIC. We therefore lack jurisdiction to make any findings on this matter. See Daniel
v. Office of Personnel Management , 43 M.S.P.R. 599, 603 (1990); see also 5 U.S.C.
§ 1205(g) (prohibiting the Board from issuing advisory opinions). We note, however,
that the record in the instant appeal seems to show that the appellant’s rate of pay in the
SSA position was less than 80% of his rate of pay in the FDIC position. IAF, Tab 88
rescission action, the provisions of this subpart are tailored to address the
situation at hand, to do so in a way that would protect the disability benefits that
the appellant accrued prior to his reemployment, and to offer the possibility of a
reinstatement of benefits should the appellant’s disability recur or his earning
capacity again decrease.
ORDER
We ORDER OPM to cancel the rescission of the appellant’s disability
retirement annuity and to restore the appellant’s annuity effective retroactively to
the date of the rescission. OPM must accomplish this action within 45 days from
the date of this Order.
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reason 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).
at 40-41; cf. 5 C.F.R. §§ 844.401(d) (providing for termination of a disability annuity
based on Federal reemployment at the same or higher grade or pay level), 844.402(a)
(providing for termination of a disability annuity when the annuitant’s income reaches
80% of his former wages).9
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 RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 1510.13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Carroll_Michael_S_DA-0845-19-0185-I-1_Final_Order.pdf | 2024-02-15 | MICHAEL S. CARROLL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-19-0185-I-1, February 15, 2024 | DA-0845-19-0185-I-1 | NP |
2,319 | https://www.mspb.gov/decisions/nonprecedential/Stapor_William_J_DC-0831-18-0720-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM JOSEPH STAPOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-18-0720-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William Joseph Stapor , Ashburn, Virginia, pro se.
Jane Bancroft , 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 with prejudice for failure to prosecute. On petition for
review, the appellant argues for the first time that he was out of town on business
and presents evidence supporting this claim. 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).
2
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 Em ployment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. | Stapor_William_J_DC-0831-18-0720-I-1__Final_Order.pdf | 2024-02-15 | WILLIAM JOSEPH STAPOR v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-18-0720-I-1, February 15, 2024 | DC-0831-18-0720-I-1 | NP |
2,320 | https://www.mspb.gov/decisions/nonprecedential/Schwartz_Jonathan_R_SF-0831-18-0547-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN R. SCHWARTZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-18-0547-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan R. Schwartz , Sacramento, California, pro se.
Carla Robinson , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
denying his application for annuity benefits under the Civil Service Retirement
System (CSRS). On petition for review, the appellant argues that his former
employing agency erroneously informed him that, if he accepted a refund of his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
retirement deductions, he could subsequently repay the same and receive CSRS
annuity benefits. Petition for Review File, Tab 3 at 3. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
An applicant for retirement benefits bears the burden of proving
entitlement to the benefits sought by a preponderance of the evidence. Jordan v.
Office of Personnel Management , 100 M.S.P.R. 623, ¶ 7 (2005). Generally, when
an appellant receives a lump-sum refund of his retirement deductions, his right to
annuity payments thereafter is extinguished in the absence of evidence showing
that he was subsequently reemployed in a position subject to civil service
retirement law and that he redeposited the amount he received, with interest. See
Yarbrough v. Office of Personnel Management , 770 F.2d 1056, 1060 -61 (Fed. Cir.
1985); Youngblood v. Office of Personnel Management , 108 M.S.P.R. 278, ¶ 12
(2008).
Here, as noted by the administrative judge, in electing a refund of his
retirement deductions upon his resignation from Federal service in 1990, the
appellant completed and signed an Application for Refund of Retirement2
Deductions, OPM Form 1425. Initial Appeal File (IAF), Tab 10 at 12-13, Tab 12,
Initial Decision at 3-4. This form states, in relevant part, “[i]f you have more
than 5 years of service, you may be entitled to annuity rights which will be
forfeited by payment of this refund unless you are later reemployed subject to the
Civil Service Retirement law.” IAF, Tab 10 at 13. Thus, the appellant received
unequivocal written guidance as to the consequences of his election. Id.
Moreover, even if the appellant received patently erroneous advice, OPM
cannot be estopped from denying monetary benefits not otherwise permitted by
law. See Richmond v. Office of Personnel Management , 496 U.S. 414, 416, 434
(1990). Thus, the appellant’s contentions in this regard are without merit. See
Pagum v. Office of Personnel Management , 66 M.S.P.R. 599, 601 (1995)
(explaining that when an appellant does not meet the statutory requirements for
an annuity, OPM cannot be required to pay the same); see also Mahan v. Office of
Personnel Management , 47 M.S.P.R. 639, 641 (1991) (explaining that, even
though the appellant had relied on the mistaken advice of a Social Security
Administration official in withdrawing her retirement contributions, it would
nonetheless be unlawful for OPM to accept her request to redeposit the withdrawn
funds or to grant her a deferred annuity). The record does not reflect, nor has the
appellant alleged, that he was ever reemployed by the Federal government
following his 1990 resignation. See Youngblood , 108 M.S.P.R. 278, ¶ 12.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Schwartz_Jonathan_R_SF-0831-18-0547-I-1 Final Order.pdf | 2024-02-15 | JONATHAN R. SCHWARTZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-18-0547-I-1, February 15, 2024 | SF-0831-18-0547-I-1 | NP |
2,321 | https://www.mspb.gov/decisions/nonprecedential/Neal_David_L_DE-0845-14-0222-A-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. NEAL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0845-14-0222-A-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Cynthia Reinhold , and Tanisha Elliott Evans , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied his motion for attorney fees. On petition for review, the
appellant reargues that he is a prevailing party and that he is entitled to attorneys’
fees. 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.
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) he was the prevailing party; (2) he
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662, ¶ 7
(2011); Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413, ¶ 11
(2010). To be considered a “prevailing party” under this standard, an appellant
must show that he obtained a material alteration of the legal relationship between
the parties through an enforceable final judgment on the merits or a settlement
agreement entered into the record for the purposes of enforcement by the Board.
Sanchez v. Department of Homeland Security , 116 M.S.P.R. 183, ¶ 10 (2010). In
attorney fee motions arising under 5 U.S.C. § 7701(g)(1), the Board has expressly
adopted the standard set forth by the U.S. Supreme Court that an appellant is
considered to have prevailed in a case and to be entitled to attorney fees only if
he obtains an “enforceable order” resulting in a “material alteration of the legal
relationship of the parties.” Baldwin, 115 M.S.P.R. 413, ¶ 11. An appellant is, or
is not, a prevailing party in the case as a whole, and whether he may be deemed a2
prevailing party depends on the relief ordered in the Board’s final decision.
Driscoll, 116 M.S.P.R. 662, ¶ 9.
Regarding the appellant’s argument that he is a prevailing party and is
entitled to attorneys’ fees because the Office of Personnel Management (OPM)
took a number of voluntary actions as a result of his attorney’s representation,
including waiving collection of a $65,920 disability annuity benefit overpayment,
in Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources , 532 U.S. 598 (2001), the U.S. Supreme Court
considered whether the term “prevailing party,” as used in fee-shifting statutes,
includes a party that has failed to secure a judgment on the merits or a
court-ordered consent decree but has nonetheless achieved the desired result
because the lawsuit brought about a voluntary change in the defendant’s conduct.
The Court determined that it does not, specifically rejecting the so-called
“catalyst theory” as a permissible basis for an award of attorney fees, whereby a
party could be found to have prevailed based on the opposing party’s voluntary
change of conduct after the filing of a lawsuit . Id. at 605. The Board has
specifically adopted the standard set forth in Buckhannon for purposes of the
attorney fee provisions of 5 U.S.C. § 7701(g)(1). Sacco v. Department of Justice ,
90 M.S.P.R. 37, ¶¶ 9-10 (2001).
As relevant here, the Board has not issued a final decision on the merits
that awards the appellant any relief or that materially alters the legal relationship
between the parties. Baldwin, 115 M.S.P.R. 413, ¶ 11. Instead, the final decision
in the underlying Board appeal denied the petition for review and affirmed the
initial decision affirming OPM’s reconsideration decision. Neal v. Office of
Personnel Management , MSPB Docket No. DE-0845-14-0222-I-2, Final Order
(July 20, 2022). Consequently, we agree with the administrative judge’s
conclusion that the appellant is not a prevailing party and thus is not entitled to
an award of attorneys’ fees. Therefore, we DENY the petition for review and3
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).
If you submit a petition for 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 | Neal_David_L_DE-0845-14-0222-A-1 Final Order.pdf | 2024-02-15 | DAVID L. NEAL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0845-14-0222-A-1, February 15, 2024 | DE-0845-14-0222-A-1 | NP |
2,322 | https://www.mspb.gov/decisions/nonprecedential/Mora_ManuelSF-0831-18-0241-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MANUEL MORA, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-18-0241-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
denying his application for death benefits based on the Federal service of his late
father, whom OPM previously found ineligible for a Civil Service Retirement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
System (CSRS) annuity.2 On petition for review, the appellant argues that his
father was entitled to a CSRS annuity and that the administrative judge failed to
address his claim for a survivor annuity.3 Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
2 Although there is a question regarding the timeliness of the petition for review, we
need not address it given our determination that the initial decision should be affirmed.
See Holly v. Department of Health and Human Services , 92 M.S.P.R. 601, ¶ 12 n.*
(2002) (sustaining the arbitration decision without addressing the timeliness of the
appellant’s request for review).
3 On review, the appellant has submitted for the first time a copy of a June 24, 1996
final decision by OPM pertaining to another applicant. Petition for Review (PFR) File,
Tab 6 at 13-16. We have not considered this document, however, because the appellant
has not shown that it was unavailable before the record closed below despite his due
diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d). The appellant has also submitted on review a March 1948 Standard
Form 105 that is already in the record. PFR File, Tab 6 at 17. Because this document is
not new, it does not provide a basis for granting the petition for review. See Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115(d).2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mora_ManuelSF-0831-18-0241-I-1 Final Order.pdf | 2024-02-15 | null | SF-0831-18-0241-I-1 | NP |
2,323 | https://www.mspb.gov/decisions/nonprecedential/Fisher_Thomas_F_AT-0831-18-0381-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS F. FISHER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-18-0381-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Fisher , Marco Island, Florida, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision in this matter. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
On review, the appellant argues that, for years, he has tried to resolve an
error in the computation of his annuity benefits under the Civil Service
Retirement System (CSRS) and the repayment of money deducted from his
annuity as a result of the error, but OPM has failed to address the issues. Petition
for Review (PFR) File, Tab 1 at 1-2. OPM has filed an opposition to the petition
in which it maintains that the administrative judge properly dismissed the appeal
for lack of jurisdiction because it has not issued a final decision in the matter and
represents that it is prepared to issue a final decision after the appellant’s petition
for review is dismissed. PFR File, Tab 4. The appellant has filed a reply in
which he states that he is not challenging the dismissal of his petition for review
as long as he has the right to appeal OPM’s final decision to the Board. PFR File,
Tab 7.
The Board generally has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the CSRS only after OPM has issued a final
decision. Morin v. Office of Personnel Management , 107 M.S.P.R. 534, ¶ 8
(2007), aff’d, 287 F. App’x 864 (Fed. Cir. 2008); see 5 U.S.C. § 8347(d)(1);2
5 C.F.R. § 831.110.2 The administrative judge properly found that OPM had not
issued a final decision regarding the subject of the instant appeal at the time the
initial decision was issued. Initial Appeal File, Tab 13, Initial Decision (ID) at 2.
As an exception to this general rule, however, the Board may assert jurisdiction
over an appeal concerning a retirement matter in which OPM has refused or
improperly failed to issue a final decision. Hasanadka v. Office of Personnel
Management, 116 M.S.P.R. 636, ¶ 21 (2011). As discussed by the administrative
judge, the record does not support a finding that OPM has refused or improperly
failed to issue a final decision. ID at 2. Accordingly, we affirm the
administrative judge’s finding that the Board lacks jurisdiction over this appeal
and his dismissal of the appeal. The appellant may appeal the merits of his case
once OPM issues a final decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 In the initial decision in the instant appeal, the administrative judge cited to a statute
pertaining to disability retirement under the Federal Employees’ Retirement System,
which has no relevance to this case. Initial Appeal File, Tab 13, Initial Decision at 2.
We discern no reason to disturb the initial decision, however, as the incorrect citation
does not affect the outcome of the appeal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Fisher_Thomas_F_AT-0831-18-0381-I-1 Final Order.pdf | 2024-02-15 | THOMAS F. FISHER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-18-0381-I-1, February 15, 2024 | AT-0831-18-0381-I-1 | NP |
2,324 | https://www.mspb.gov/decisions/nonprecedential/Gordon_Linda_M_CH-0845-18-0433-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA M. GORDON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-18-0433-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Linda M. Gordon , Chicago, Illinois, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the reconsideration decision of the Office of Personnel
Management (OPM) as untimely filed without good cause for the filing delay. On
petition for review, the appellant argues, in an apparent challenge to the
administrative judge’s finding that there was no good cause for her 1-day filing
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
delay, that she is suffering from a medical condition and further contends that the
administrative judge erred in denying her a timeliness hearing and in declining to
adjudicate the merits of her appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to correct a harmless factual error, we AFFIRM the initial decision.
In the initial decision, the administrative judge found that the appellant
indicated in her initial appeal form and in her response to the timeliness order that
she received OPM’s May 3, 2018 reconsideration decision on May 8, 2018.
Initial Appeal File (IAF), Tab 8, Initial Decision (ID) at 4. However, this finding
is incorrect in part. A review of the appellant’s initial appeal form reveals that
she alleged that she received OPM’s reconsideration decision on June 8, 2018, the
same day that she filed her Board appeal. IAF, Tab 1 at 2, 7. In her subsequent
pleading, the appellant clarified that she received OPM’s reconsideration decision
on May 8, 2018. IAF, Tab 7 at 2; ID at 4. On review, the appellant does not
dispute the administrative judge’s finding that she received OPM’s decision on
May 8, 2018. ID at 4; Petition for Review File, Tabs 1, 5. Accordingly, we
discern no basis for disturbing it and further find that the administrative judge’s
factual error is not a basis for granting the petition for review. See Panter v.
3
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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. | Gordon_Linda_M_CH-0845-18-0433-I-1 Final Order.pdf | 2024-02-15 | LINDA M. GORDON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-18-0433-I-1, February 15, 2024 | CH-0845-18-0433-I-1 | NP |
2,325 | https://www.mspb.gov/decisions/nonprecedential/Montgomery_Dytaun_J_DC-3443-19-0764-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DYTAUN J. MONTGOMERY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-19-0764-I-1
DATE: February 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Dytaun J. Montgomery , Waldorf, Maryland, pro se.
David R. Scruggs , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE 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 filed a Board appeal alleging that the agency had denied her
a “promised promotion” and a “wage increase.” Initial Appeal File (IAF), Tab 1
at 6. The appellant further averred that she had been discriminated and retaliated
against for “filing [equal employment opportunity] charges” and that she had
“suffered reprisal for exercising [her] employment rights.” Id. She also indicated
that she had filed a whistleblowing complaint with the Office of Special Counsel
(OSC) on “05/2019.”2 Id. at 5. The appellant requested a hearing on the matter.
Id. at 2.
The administrative judge issued an acknowledgment order indicating that
the appellant had seemingly raised allegations regarding the denial of a
within-grade increase (WIGI) and nonselection for a promotion. IAF, Tab 2 at 2.
The administrative judge explained the circumstances under which the Board has
jurisdiction over the denial of a WIGI. Id. at 5-6. He also explained that the
Board generally lacks jurisdiction over nonselection appeals with certain limited
exceptions, to include employment practice appeals and suitability actions, and he
explained the circumstances under which the Board has jurisdiction over these
two exceptions. Id. at 2-4. He further indicated that, if the appellant was
alleging that her nonselection was in retaliation for whistleblowing or certain
protected activities, the Board may have jurisdiction over her appeal. Id. at 4-5.
The administrative judge explained that, if the appellant indicated that she
intended to pursue either of these latter exceptions as the basis of her
nonselection appeal, i.e., if she was alleging that her nonselection was in
retaliation for whistleblowing or certain protected activities, then he would
“notify [her] of the specific proof required as to jurisdiction and the merits of the
claim.” Id. at 5. The administrative judge ordered the appellant to file evidence
and argument regarding jurisdiction within 15 days. Id. at 6.
2 Although the appellant checked boxes indicating that she had faxed various documents
with her initial appeal form, to include her OSC complaint, the appellant failed to
provide these documents. IAF, Tab 1 at 7.2
The appellant submitted four filings within 15 days of the administrative
judge’s acknowledgment order. IAF, Tabs 4-5, 7-8. In one of these filings, the
appellant asserted that she had initiated investigations with the following entities:
(1) “[t]he VA Office of Special Counsel”;3 (2) the agency’s Office of
Accountability and Whistleblower Protection; and (3) the Office of U.S.
Congressman Steny H. Hoyer. IAF, Tab 4 at 5. In a separate filing, the appellant
provided email correspondence between her representative and an OSC attorney.
IAF, Tab 7 at 4-5, 8-9. In the correspondence, the OSC attorney informed the
appellant’s representative that, because the appellant’s OSC case was over
120 days old, the appellant could exercise her right to file an individual right of
action (IRA) appeal with the Board. Id. at 5, 9. The agency contended that the
Board lacks jurisdiction over the matter. IAF, Tab 6 at 5.
Without holding the appellant’s requested hearing on the matter, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 9, Initial Decision (ID) at 2, 5. The administrative judge
found that the appellant had failed to make a nonfrivolous allegation of Board
jurisdiction regarding her WIGI -related claim because she had failed to allege
that she had sought and received a reconsideration decision from the agency. ID
at 4. He further found that, as a general matter, the Board lacks jurisdiction over
appeals involving nonselection for a promotion. Id. The administrative judge
also explained that the appellant had “filed a number of EEO complaints which
have issues accepted for adjudication,” but he found that, in the absence of an
otherwise appealable action, the Board lacks jurisdiction over the appellant’s
allegations of prohibited personnel practices. ID at 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has not filed a response. In her petition for review, the
appellant contends that the administrative judge erred in dismissing her appeal for
3 The appellant subsequently indicated in this same filing that she had filed a complaint
with “the Office of Special Counsel.” IAF, Tab 4 at 6. 3
lack of jurisdiction. Id. at 6. She seemingly alleges that the Board has
jurisdiction over her appeal based on the following: (1) the agency denied her
WIGI; (2) her appeal involves employment practices; and (3) her appeal involves
a suitability action. Id. at 6-12. The appellant also avers that she has “asserted a
number of allegations of prohibited personnel practice (sic) and submitted those
concerns to the Office of Special Counsel.” Id. at 9. She also provides additional
documents. Id. at 14-18.4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation of Board jurisdiction over
her WIGI - related assertions.
The appellant alleges that the Board has jurisdiction over the alleged denial
of a WIGI.5 PFR File, Tab 3 at 6-10. With exceptions not applicable here, the
Board has jurisdiction over an employee’s appeal from the agency’s withholding
of a WIGI only if the employee has sought reconsideration of the agency’s
decision to withhold the WIGI and the agency has affirmed its initial decision on
reconsideration.6 5 U.S.C. § 5335(c); Goines v. Merit Systems Protection Board ,
258 F.3d 1289, 1292 (Fed. Cir. 2001); 5 C.F.R. § 531.410(d). Here, the
administrative judge correctly informed the appellant of the applicable
jurisdictional burden regarding her WIGI -related claim; however, as set forth in
the initial decision, the appellant did not nonfrivolously allege that she sought or
received a reconsideration decision from the agency regarding her WIGI. IAF,
4 Specifically, the appellant provides an amended EEO complaint dated November 7,
2019. PFR File, Tab 3 at 14-18.
5 A WIGI means “[a] periodic increase in an employee’s rate of basic pay from one step
of the grade of his or her position to the next higher step of that grade in accordance
with [5 U.S.C. § 5335 and 5 C.F.R. part 531, subpart D].” 5 C.F.R. § 531.403.
6 If the appellant makes a nonfrivolous allegation of jurisdiction, then she is entitled to
a jurisdictional hearing. Garcia v. Department of Homeland Security , 437 F.3d 1322,
1344 (Fed. Cir. 2006) (en banc). A nonfrivolous allegation of Board jurisdiction is an
allegation of fact that, if proven, could establish that the Board has jurisdiction over the
matter at issue. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994); 5 C.F.R.
§ 1201.4(s).4
Tab 2 at 5-6; ID at 4. Moreover, in some of her filings before the administrative
judge and on review, the appellant has indicated that she has already received the
subject WIGI. E.g., IAF, Tab 4 at 5; PFR File, Tab 3 at 5. Thus, we find that she
has failed to establish Board jurisdiction over her WIGI-related claims.
The Board lacks jurisdiction over this matter as an employment practices appeal.
The appellant contends that her appeal involves an employment practice
and, therefore, that the Board has jurisdiction over the matter. PFR File, Tab 3
at 10. An applicant for employment who believes that an employment practice
applied to her by the Office of Personnel Management (OPM) violates a basic
requirement set forth in 5 C.F.R. § 300.103 is entitled to appeal to the Board.
5 C.F.R. § 300.104(a). The Board has jurisdiction under 5 C.F.R. § 300.104(a)
when two conditions are met: (1) the appeal must concern an employment
practice that OPM is involved in administering; and (2) the appellant must make a
nonfrivolous allegation that the employment practice violated one of the “basic
requirements” for employment practices set forth in 5 C.F.R. § 300.103. Meeker
v. Merit Systems Protection Board , 319 F.3d 1368, 1373 (Fed. Cir. 2003);
Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008). Here,
despite the administrative judge informing the appellant of the applicable
jurisdictional burden regarding an employment practice claim, IAF, Tab 2 at 2-3,
the appellant has not identified any “employment practice” appealable under
5 C.F.R. part 300, subpart A, i.e., 5 C.F.R. §§ 300.101-300.104. In this context,
“the term ‘employment practices’ includes the development and use of
examinations, qualification standards, tests, and other measurement instruments.”
5 C.F.R. § 301.101; see Manno v. Department of Justice , 85 M.S.P.R. 696, ¶ 7
(2000). To the extent that her employment practice claim relates to the agency’s
alleged failure to promote her, IAF, Tab 4 at 20, she has failed to identify any
employment practice that was applied or misapplied to her, or to nonfrivolously
allege that OPM had any role in denying her promotion or had any involvement in
the administration of any practice relevant here, see Prewitt v. Merit Systems5
Protection Board , 133 F.3d 885, 887-88 (Fed. Cir. 1998) (stating that OPM’s
involvement in a selection process must be significant before the nonselection can
be characterized as a practice applied by OPM for purposes of 5 C.F.R.
§ 300.104(a)); Manno, 85 M.S.P.R. 696, ¶¶ 2, 8 (finding that the Board lacked
jurisdiction over an employment practices appeal when the appellant failed to
show that OPM had any involvement in the alleged mishandling of his application
for promotion). Thus, the appellant has failed to establish the Board’s
jurisdiction under 5 C.F.R. § 300.104(a).
The Board lacks jurisdiction over the matter as suitability appeal.
The appellant alleges that her appeal involves a suitability action. PFR
File, Tab 3 at 10. A suitability determination is directed toward whether the
“character or conduct” of a candidate or current employee is such that employing
or continuing to employ her would adversely affect the integrity or efficiency of
the service. Upshaw v. Consumer Product Safety Commission , 111 M.S.P.R. 236,
¶ 7 (2009); 5 C.F.R. §§ 731.101(a), 731.201; see 5 C.F.R. § 731.202. Pursuant to
OPM’s regulations at 5 C.F.R. part 731, a “suitability action” may be appealed to
the Board. See Upshaw, 111 M.S.P.R. 236, ¶ 8; 5 C.F.R. § 731.501(a). A
“suitability action” is defined as a cancellation of eligibility, a removal, a
cancellation of reinstatement eligibility, and/or a debarment. Upshaw,
111 M.S.P.R. 236, ¶ 8; 5 C.F.R. § 731.203(a); see 5 C.F.R. § 731.203(b) (“A
non-selection, or cancellation of eligibility for a specific position based on an
objection to an eligible or pass over of a preference eligible under [5 U.S.C.
§ 332.406], is not a suitability action even if it is based on reasons set forth in
§ 731.202.”). OPM’s regulations afford the Board no authority to review a “de
facto” or “constructive” suitability action. Ricci v. Merit Systems Protection
Board, 953 F.3d 753, 758-59 (Fed. Cir. 2020). Here, the administrative judge
provided the appellant with notice of how to establish that she had been subjected
to a suitability action; however, the record is devoid of any allegation or
indication that the appellant was subjected to any suitability action covered by6
5 C.F.R. part 731. IAF, Tab 2 at 3-4. Thus, the appellant has failed to establish
Board jurisdiction on this basis.
The appellant’s potential IRA claim is remanded for further adjudication.
Last, the appellant explains that she has “asserted a number of allegations
of prohibited personnel practice [sic] and submitted those concerns to the Office
of Special Counsel.” PFR File, Tab 3 at 9.
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); Smyth v. Department of the
Interior, 85 M.S.P.R. 552, ¶ 5 (2000). To establish jurisdiction in a typical IRA
appeal, an appellant must show by preponderant evidence7 that she exhausted her
remedies before OSC and make nonfrivolous allegations of the following: (1) she
made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8
(2016), overruled on other grounds by Requena v. Department of Homeland
Security, 2022 MSPB 39.
In his acknowledgment order, the administrative judge explained that, if the
appellant was alleging that her nonselection was in retaliation for whistleblowing
or certain protected activities, the Board may have jurisdiction over her appeal.
IAF, Tab 2 at 4-5. He ordered the appellant to provide evidence and argument
regarding jurisdiction and he explained that, if she indicated nonselection on this
basis, then he would notify her of the specific proof required as to jurisdiction.
Id. at 5-6. In response, the appellant averred that she had filed a complaint with
7 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).7
“the Office of Special Counsel,” IAF, Tab 4 at 6, and she provided
correspondence from an OSC attorney, wherein the attorney informed the
appellant’s representative that because her case was over 120 days old, the
appellant could exercise her right to file an IRA appeal with the Board, IAF,
Tab 7 at 5, 9. Although the administrative judge’s acknowledgment order gave
proper general notice of jurisdiction, IAF, Tab 2 at 4-5, once the appellant
indicated through her responses that she sought to pursue an IRA appeal, the
administrative judge should have given more explicit notice of her jurisdictional
burden in such an appeal, see Parker v. Department of Housing and Urban
Development, 106 M.S.P.R. 329, ¶¶ 6-7 (2007). Moreover, neither the initial
decision nor the agency’s filing provided the appellant with such notice. IAF,
Tab 6; cf. Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283, ¶ 8
(2006) (explaining that an administrative judge’s failure to properly inform an
appellant of the Board’s IRA jurisdictional requirements, and the means by which
they may be met, may be cured by either the initial decision or any agency
pleading). To this end, although the administrative judge acknowledged that the
appellant had stated that she had filed a complaint with OSC, ID at 3, he did not
substantively address the Board’s potential IRA jurisdiction over this matter in
the initial decision.
Accordingly, we remand this matter for the administrative judge to provide
the parties with an additional opportunity to submit evidence and argument and to
make additional findings regarding the Board’s potential jurisdiction over this
matter as an IRA appeal. See Roach v. Department of the Army , 86 M.S.P.R. 4,
¶¶ 14-15, 19 (2000) (remanding an IRA appeal because the administrative judge
failed to inform the appellant of the Board’s jurisdictional requirements prior to
dismissing the appeal for lack of jurisdiction).8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.9 | Montgomery_Dytaun_J_DC-3443-19-0764-I-1_Remand_Order.pdf | 2024-02-15 | DYTAUN J. MONTGOMERY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-19-0764-I-1, February 15, 2024 | DC-3443-19-0764-I-1 | NP |
2,326 | https://www.mspb.gov/decisions/nonprecedential/Jackson_MexiaAT-0752-19-0520-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MEXIA JACKSON, III,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-19-0520-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
Donald C. Freeman and Gautier Kitchen , Tallahassee, Florida, for the
appellant.
Heather G. Blackmon , 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
dismissed his demotion appeal for lack of jurisdiction. On petition for review,
the appellant alleges that the administrative judge committed unspecified legal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
errors in dismissing his appeal.2 Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 The appellant also has filed an untimely reply to the agency’s response, which
expounds on his petition for review. Petition for Review File, Tab 9; see 5 C.F.R.
§ 1201.114(e), (k). However, his arguments do not address the dispositive
jurisdictional issue. Initial Appeal File, Tab 5, Initial Decision at 2-3. Further, to the
extent that the appellant raises a new claim of discrimination based on his uniformed
service or of denial of veterans’ preference, it is beyond the scope of the reply.
5 C.F.R. § 1201.114(a)(4). Accordingly, we find that these additional arguments do not
provide a basis for disturbing the initial decision. If he so chooses, the appellant may
pursue an appeal under the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301-4335) or the
Veterans Employment Opportunity Act, as appropriate. We make no findings here as to
the Board’s authority to hear such appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
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
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 | Jackson_MexiaAT-0752-19-0520-I-1 Final Order.pdf | 2024-02-15 | null | AT-0752-19-0520-I-1 | NP |
2,327 | https://www.mspb.gov/decisions/nonprecedential/Fair_Harvey_K_CH-315H-18-0152-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARVEY K. FAIR,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
CH-315H-18-0152-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey K. Fair , Carmel, Indiana, pro se.
Daniel C. Mullenix , Esquire, and Pamela D. Langston-Cox , Esquire,
Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his probationary termination for lack of jurisdiction. On
petition for review, the appellant argues that the agency wrongly considered an
essay he submitted in response to the notice of proposed termination to be his
response to the notice of proposed termination, but he does not identify any
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
response that the agency should have considered instead. Generally, we grant
petitions such as 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).
The appellant has filed a motion for leave to submit additional evidence, to
wit, emails that he claims would show that the agency failed to provide him with
copies of the materials it relied upon in reaching its decision to terminate him and
that the agency failed to afford him the procedural protections of 5 C.F.R.
§ 315.805. Petition for Review (PFR) File, Tab 5. The agency opposes the
motion. PFR File, Tab 6. We DENY the appellant’s motion. The notice of
proposed termination stated that the appellant could view the material the agency
relied upon by contacting a particular labor relations specialist. Initial Appeal
File, Tab 11 at 28. If the agency in fact failed to provide the appellant with
copies of the material relied upon, the appellant would have been aware of this
before he filed his appeal. However, he did not raise this as an issue before the
administrative judge. In filing his motion for leave to submit additional evidence,
he has not alleged, much less shown, why he could not have made this argument
or proffered these documents before the close of the record below despite his 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).
After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the2
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Fair_Harvey_K_CH-315H-18-0152-I-1__Final_Order.pdf | 2024-02-15 | HARVEY K. FAIR v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-315H-18-0152-I-1, February 15, 2024 | CH-315H-18-0152-I-1 | NP |
2,328 | https://www.mspb.gov/decisions/nonprecedential/Kalini_Gamal_A_SF-1221-22-0379-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAMAL A. KALINI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-22-0379-W-2
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindi Fox , Esquire, Berkeley, California, for the appellant.
Laura Heller , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The Board issued an initial decision granting corrective action in the
appellant’s individual right of action appeal, which became final when neither
party filed a petition for review. For the reasons set forth below, we REOPEN
the appeal on the Board’s own motion under 5 U.S.C. § 7701(e)(1)(B) and
5 C.F.R. § 1201.118, VACATE the Board’s final order, and DISMISS the appeal
as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2On January 13, 2023, the administrative judge issued an initial decision
granting corrective action in the appellant’s individual right of action appeal.
Kalini v. Department of the Army , MSPB Docket No. SF-1221-22-0379-W-2,
Appeal File, Tab 26, Initial Decision (ID). The initial decision became final on
February 17, 2023, when neither party filed a petition for review. ID at 27. On
August 11, 2023, the agency filed a pleading titled “Request to Vacate Initial
Decision per Settlement Agreement.”2 Kalini v. Department of the Army , MSPB
Docket No. SF-1221-22-0379-W-2, Petition for Review (W-2 PFR) File, Tab 1
at 1. The filing includes a copy of a negotiated settlement agreement, which
resolves various matters between the parties, including this one. 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). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. W-2 PFR File, Tab 1 at 7.
¶4In 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 ). We further find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Accordingly, we
find it appropriate under the circumstances to vacate the Board’s final decision,
dated January 13, 2023, and dismiss the appeal with prejudice to refiling (i.e., the
parties normally may not refile this appeal).
2 The appellant did not object to the agency’s request to vacate the initial decision.2
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kalini_Gamal_A_SF-1221-22-0379-W-2_Final_Order.pdf | 2024-02-15 | GAMAL A. KALINI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-22-0379-W-2, February 15, 2024 | SF-1221-22-0379-W-2 | NP |
2,329 | https://www.mspb.gov/decisions/nonprecedential/Kalini_Gamal_A_SF-1221-22-0379-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAMAL A. KALINI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-22-0379-W-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindi Fox , Esquire, Berkeley, California, for the appellant.
Laura Heller , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The Board issued an initial decision dismissing this appeal without
prejudice, which became the Board’s final order when neither party filed a
petition for review. For the reasons set forth below, we REOPEN the appeal on
the Board’s own motion under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118,
VACATE the Board’s final order, and DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2On August 23, 2022, the administrative judge issued an initial decision
dismissing the appellant’s individual right of action appeal without prejudice,
which became final on September 27, 2022, when neither party filed a petition for
review. Kalini v. Department of the Army , MSPB Docket No. SF -1221-22-0379-
W-1, Initial Appeal File, Tab 24, Initial Decision. The appeal was later refiled as
Kalini v. Department of the Army , MSPB Docket No. SF-1221-22-0379-W-2. On
August 11, 2023, the agency filed a pleading titled “Request to Vacate Initial
Decision per Settlement Agreement” under MSPB Docket Nos. SF -1221-22-0379-
W-1 and SF-1221-22-0379-W-2.2 Kalini v. Department of the Army , MSPB
Docket No. SF-1221-22-0379-W-1, Petition for Review (W-1 PFR) File, Tab 1;
Kalini v. Department of the Army , MSPB Docket No. SF-1221-22-0379-W-2,
Petition for Review File, Tab 1 at 1. The filing includes a copy of a negotiated
settlement agreement, which resolves various matters between the parties,
including this one. W-1 PFR File, Tab 1 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). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. W-1 PFR File, Tab 1 at 7.
¶4In 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 ). We further find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Accordingly, we
find it appropriate under the circumstances to vacate the Board’s final decision,
2 The appellant did not object to the agency’s request to vacate the initial decision.2
dated August 23, 2022, and dismiss the appeal with prejudice to refiling (i.e., the
parties normally may not refile this appeal).
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kalini_Gamal_A_SF-1221-22-0379-W-1_Final_Order.pdf | 2024-02-15 | GAMAL A. KALINI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-22-0379-W-1, February 15, 2024 | SF-1221-22-0379-W-1 | NP |
2,330 | https://www.mspb.gov/decisions/nonprecedential/Kalini_Gamal_A_SF-1221-22-0379-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAMAL A. KALINI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-22-0379-A-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindi Fox , Esquire, Berkeley, California, for the appellant.
Michael L Halperin and Karen L. Judkins , Monterey, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The Board issued an initial decision granting the appellant’s request for
attorney fees, which became final when neither party filed a petition for review.
For the reasons set forth below, we REOPEN the appeal on the Board’s own
motion under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Board’s final order on the appellant’s motion for attorney fees, and DISMISS the
attorney fee matter as settled.
¶2The appellant filed an individual right of action appeal against the agency,
which resulted in an initial decision granting corrective action. Kalini v.
Department of the Army , MSPB Docket No. SF-1221-22-0379-W-2, Appeal File,
Tab 26, Initial Decision. Thereafter, the appellant filed a motion for attorney
fees. Kalini v. Department of the Army , MSPB Docket No. SF -1221-22-0379-
A-1, Attorney Fee File (AFF), Tab 1. The administrative judge issued an initial
decision granting the appellant’s motion for attorney fees, which became final on
June 21, 2023, when neither party filed a petition for review. AFF, Tab 4, Initial
Decision. On August 11, 2023, the agency filed a pleading titled “Request to
Vacate Initial Decision per Settlement Agreement.”2 Kalini v. Department of the
Army, MSPB Docket No. SF-1221-22-0379-A-1, Petition for Review (A-1 PFR)
File, Tab 1 at 3. The filing includes a copy of a negotiated settlement agreement,
signed by both parties, that resolves various matters between the parties,
including this one. 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). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. A-1 PFR File, Tab 1 at 7.
¶4In 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 ). We further find
that the agreement is lawful on its face and freely entered into, and we accept the
2 The appellant did not object to the agency’s request to vacate the initial decision.2
settlement agreement into the record for enforcement purposes. Accordingly, we
find it appropriate under the circumstances to vacate the Board’s decision on the
appellant’s motion for attorney fees, dated May 17, 2023, and dismiss the
underlying motion for attorney fees with prejudice to refiling (i.e., the parties
normally may not refile this appeal).
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kalini_Gamal_A_SF-1221-22-0379-A-1_Final_Order.pdf | 2024-02-15 | GAMAL A. KALINI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-22-0379-A-1, February 15, 2024 | SF-1221-22-0379-A-1 | NP |
2,331 | https://www.mspb.gov/decisions/nonprecedential/Kalini_Gamal_A_SF-1221-21-0056-C-2_and_SF-1221-21-0056-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAMAL A. KALINI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
SF-1221-21-0056-C-2
SF-1221-21-0056-X-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindi Fox , Esquire, Berkeley, California, for the appellant.
Laura Heller , Esquire, and Michael Halperin , Monterey, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency has filed a motion to vacate the compliance initial decision,
which granted, in part, and denied, in part, the appellant’s petition for
enforcement, to enter a settlement agreement into the record for enforcement
purposes, and to dismiss the proceedings as settled. For the reasons set forth
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, we JOIN the matters listed above,2 REOPEN Kalini v. Department of the
Army, MSPB Docket No. SF-1221-21-0056-C-2, on the Board’s own motion
under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118, VACATE the Board’s
final compliance decision, and DISMISS both matters as settled.
¶2In October 2020, the appellant filed an individual right of action appeal.
Kalini v. Department of the Army , MSPB Docket No. SF-1221-21-0056-W-1,
Initial Appeal File (IAF), Tab 1. The parties reached a settlement and, thereafter,
an administrative judge issued an initial decision dismissing the appeal as settled.
IAF, Tab 30, Initial Decision. The appellant later filed a petition for
enforcement, alleging that the agency was not in compliance with the settlement
agreement. Kalini v. Department of the Army , MSPB Docket No. SF-1221-21-
0056-C-1, Compliance File (C-1 CF), Tab 1. The appellant’s petition for
enforcement was dismissed without prejudice, C-1 CF, Tab 16, and later refiled,
resulting in Kalini v. Department of the Army , MSPB Docket No. SF-1221-21-
0056-C-2, Compliance File (C-2 CF), Tab 1. In a compliance initial decision, an
administrative judge granted, in part, and denied, in part, the appellant’s petition
for enforcement. C-2 CF, Tab 10, Compliance Initial Decision (CID). The
compliance initial decision, which became final on August 18, 2022, ordered the
agency to take certain actions to come into compliance with the settlement
agreement. CID at 16-17. Thereafter, the administrative judge’s finding of
noncompliance was docketed as Kalini v. Department of the Army , MSPB Docket
No. SF-1221-21-0056-X-1, Compliance Referral File (CRF), Tab 1.
¶3While the finding of noncompliance was pending with the Board’s Office of
General Counsel in MSPB Docket No. SF-1221-21-0056-X-1, the parties reached
a global settlement agreement. CRF, Tab 9 at 4-8. The agency filed a copy of the
2 Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and will not adversely affect the interests of
the parties. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216, ¶ 9 (2010);
5 C.F.R. § 1201.36(a)(2), (b). We find these appeals meet the regulatory requirement;
therefore, we join them. 2
settlement agreement in the MSPB Docket Nos. SF-1221-21-0056-X -1 and
SF-1221-21-0056-C-2 and requested to enter the agreement into the record for
enforcement purposes, to dismiss both matters, and to vacate the compliance
initial decision.3 Id.; Kalini v. Department of the Army , MSPB Docket
No. SF-1221-21-0056-C-2, Petition for Review File, Tab 1.
¶4Before 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). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. CRF, Tab 9 at 7.
¶5In 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 ). We further find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Accordingly, we
find it appropriate under the circumstances to vacate the Board’s final compliance
decision, dated July 14, 2022, and dismiss the appellant’s petition for
enforcement and subsequent enforcement proceedings with prejudice to refiling
(i.e., the parties normally may not refile this appeal).
¶6This is the final decision of the Merit Systems Protection Board in these
appeals. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
3 The appellant has not objected to the agency’s request to vacate the initial decision.3
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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. 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 | Kalini_Gamal_A_SF-1221-21-0056-C-2_and_SF-1221-21-0056-X-1_Final_Order.pdf | 2024-02-15 | GAMAL A. KALINI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-21-, February 15, 2024 | SF-1221-21- | NP |
2,332 | https://www.mspb.gov/decisions/nonprecedential/Sanford_Linda_E_DA-0752-17-0096-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA E. SANFORD,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-0752-17-0096-I-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Sakeena Adams and Mary C. Merchant , Esquire, Fort Worth, 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
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
concerning the administrative judge’s analysis of the appellant’s affirmative
defense of retaliation, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed by the agency as an Equal
Opportunity Specialist. Initial Appeal File (IAF), Tab 1 at 2. On July 8, 2016,
the agency proposed to remove her based on three charges of Failure to Follow
Instructions, Inattention to Duty, and Conduct Unbecoming. Id. at 21-25. Via
letter dated November 3, 2016, the agency sustained the charges and removed the
appellant, effective November 7, 2016. Id. at 11-14. The appellant filed a Board
appeal, disputing the charges and raising affirmative defenses of disability
discrimination, retaliation for prior equal employment opportunity (EEO) activity,
and harmful procedural error. IAF, Tab 1 at 3, Tab 16.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision, sustaining her removal. IAF, Tab 31, Initial Decision
(ID). The administrative judge found that the agency proved all three of its
charges, there was a nexus between the sustained charges and the efficiency of
the service, and the penalty of removal was within the tolerable limits of
3
reasonableness. ID at 2-29, 46-49. He further found that the appellant failed to
prove any of her affirmative defenses. ID at 29-46.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response in opposition, and the appellant has
filed a reply. PFR File, Tabs 5, 8.
DISCUSSION OF ARGUMENTS ON REVIEW
As an initial matter, the appellant does not challenge the administrative
judge’s findings concerning the agency’s proof of its charges or her failure to
prove her affirmative defenses of retaliation or disability discrimination due to
disparate treatment.2 Thus, the Board will not embark upon a complete review of
the record. See Baney v. Department of Justice , 109 M.S.P.R. 242, ¶ 7 (2008);
Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992). Nonetheless,
we address the appellant’s retaliation claim and supplement the administrative
judge’s analysis to clarify the proper legal standards.
The administrative judge characterized the appellant’s retaliation claim as
alleging both retaliation for filing EEO complaints3 and for requesting reasonable
accommodations for her disabilities and found that she failed to prove that such
protected activities were a motivating factor in her removal. ID at 30-33.
In particular, he found that the appellant did not produce any direct evidence of
retaliation, did not allege that the agency treated employees without prior EEO
activity more favorably, and offered little more than unsupported allegations to
show that the agency removed her because of her prior EEO activity. ID
at 30-32. In so finding, the administrative judge applied the standard set forth in
2 Since the issuance of the initial decision, the Board issued Pridgen v. Office of
Management and Budget , 2022 MSPB 31, which, among other things, addressed the
causation standard for proving disability discrimination. Pridgen, 2022 MSPB 31,
¶¶ 39-40, 42. Given the administrative judge’s finding that the appellant did not prove
that her disability was a motivating factor in the agency’s action, ID at 40-42, Pridgen
does not affect the administrative judge’s analysis.
3 The basis for the appellant’s prior EEO complaints is unclear from the record.
4
the Board’s decision in Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 42 (2015), which discussed various methods of direct and circumstantial
evidence through which an appellant may meet her burden of showing that a
prohibited consideration was a motivating factor in the contested personnel
action. ID at 30. Following Savage, however, the Board clarified that the types
of evidence set forth in Savage are not subject to differing evidentiary standards
and explained that “all evidence belongs in a single pile and must be evaluated as
a whole.” Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 29
(2016) (citing Ortiz v. Werner Enterprises, Inc. , 834 F.3d 760, 766 (7th Cir.
2016)), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-24. Regardless of the characterization of the appellant’s evidence, we
find that the administrative judge properly considered the evidence as a whole in
determining that the appellant failed to show that retaliation for filing EEO
complaints was a motivating factor in her removal.
To the extent the appellant also alleged retaliation for requesting
reasonable accommodations or for opposing disability discrimination, such claims
amount to a claim of retaliation for engaging in activity protected by the
Rehabilitation Act. After the initial decision in this appeal was issued, the Board
clarified that the proper causation standard for such a claim requires proof that
the appellant’s protected activity was a “but-for” cause of the adverse
employment action, not merely a motivating factor. Pridgen, 2022 MSPB 31,
¶¶ 44-47. Because the appellant did not show that her protected activities were a
motivating factor in her removal, we find that she did not meet the more stringent
“but-for” standard.
The administrative judge properly found that the appellant failed to prove her
affirmative defense of denial of reasonable accommodation.
Regarding the appellant’s denial of reasonable accommodation claim, the
administrative judge found that, although the appellant established that she was
5
disabled,4 she failed to establish that any alleged failure of the agency to
accommodate her disabilities caused her failure to follow instructions, her
inattention to duty, or her inappropriate conduct. ID at 33-34, 36. In particular,
regarding the failure to follow instructions charge, he found that the appellant
cited to ongoing computer issues, not her disabilities, as the reason why she was
prevented from meeting deadlines. ID at 37. Although he acknowledged that the
appellant also indicated that it took her longer to review the Fair Housing Reports
due to cognitive issues related to her disabilities, the administrative judge found
that she could have requested an extension of time to submit her presentation to
her supervisor or submitted what she had completed for review and feedback. Id.
Regarding the inattention to duty charge, the administrative judge found that the
evidence did not show that the appellant’s disability caused her misconduct, but
rather, the appellant blamed her failure to input interviews on office practice and
case complexity. ID at 38. Finally, regarding the conduct unbecoming charge,
the administrative judge found that the appellant’s misconduct stemmed from her
feeling stressed, frustrated, and at a loss with how to deal with her supervisor. Id.
The administrative judge further found that, even assuming that the
appellant’s removal was based on her disabilities, the agency provided her with
multiple accommodations, there was no evidence that such accommodations were
ineffective, and the appellant’s issues were with her supervisor. ID at 38-39. The
administrative judge also found that, despite insufficient evidence that
reassignment was necessary, the agency searched for vacant positions but did not
identify any in the appellant’s office, and the appellant indicated that she did not
want to relocate. ID at 39. Finally, he found that, even if the agency failed to
meet its reassignment obligation, the appellant failed to identify a vacant funded
position for which she was qualified. Id.
4 Although the administrative judge did not address whether the appellant was a
qualified individual with a disability, we find that the appellant’s claims can be
resolved without reaching that issue. See Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 29 n.9.
6
On review, the appellant argues that the administrative judge erred in
finding that she failed to prove that the agency’s failure to accommodate her
disabilities caused her failure to follow instructions. PFR File, Tab 3 at 7-8. She
argues that the administrative judge erroneously accepted the agency’s claim that
her issues involved a dispute with her supervisor and were not due to symptoms
related to her medical condition. Id. at 5. She also argues generally that the
administrative judge erred in finding that the agency met its obligations regarding
her request for reasonable accommodation in the form of a modification of her
current position, transfer, or reassignment because she was not granted such
accommodations, despite repeated requests. Id. at 4-5. Finally, she argues that
the agency failed to follow relevant policies and procedures. Id. However, the
appellant does not dispute the administrative judge’s findings that the agency
provided her with various accommodations, including full-time telework,
additional time to complete assignments, and written-only communication with
her supervisor. She has not explained how the accommodations were ineffective
or articulated how the agency could have modified her position to allow her to
perform its essential functions. Nor does she dispute that the agency searched for
a vacant position for her or identify an available position to which she could have
been reassigned.5 Thus, we agree with the administrative judge that the appellant
failed to prove her affirmative defense of denial of reasonable accommodation.
The administrative judge properly found that the appellant failed to prove her
affirmative defense of harmful procedural error.
The administrative judge found that the appellant failed to prove that the
agency committed harmful procedural error by, among other things, failing to
grant her a 45-day extension to respond to the notice of proposed removal and
5 Although the appellant argues that the administrative judge erred in crediting the
testimony of a human resources specialist that the appellant turned down a vacant
position at another location because she did not want to relocate, she does not argue that
such testimony is false or assert that she did not turn down the position. PFR File,
Tab 3 at 5.
7
failing to provide her with sufficient official duty time to respond to the notice of
proposed removal. ID at 42-45. We agree. The administrative judge found that
the appellant was provided 45 days to respond to the notice of proposed removal,
including an initial 21 days, a 21-day extension, and a subsequent 3 -day
extension. ID at 44. As such, he found that the agency’s actions did not violate
the collective bargaining agreement, which required it to afford an employee
30 days’ advance written notice of a proposed action and 21 days to respond to
the proposed action. ID at 43, 45. Regarding the agency’s failure to provide the
appellant official time, the administrative judge found that the notice of proposed
removal provided the appellant with 16 hours of official time to prepare a
response, and, upon her request, the appellant also was granted an additional
10 hours of official time. ID at 44. Thus, he found that the agency complied with
the terms of the collective bargaining agreement, which required it to afford an
employee up to 16 hours of duty time, if needed, to prepare a response. ID at 43,
45.
On review, the appellant asserts that the administrative judge erred in
finding that the agency complied with the collective bargaining agreement
because it denied her requested 45-day extension. PFR File, Tab 3 at 12. She
also summarily contends that, despite the evidence in the record showing that the
agency granted her 26 hours of official time, IAF, Tab 10 at 45, 55, 60, the
agency did not provide her any official time to prepare her response to the notice
of proposed removal, PFR File, Tab 3 at 13. Such arguments, however, constitute
mere disagreement with the administrative judge’s well -reasoned findings, and do
not provide a basis for reversal. See, e.g., Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
8
The administrative judge properly found that the agency proved that the penalty
of removal was reasonable.
The administrative judge found that the deciding official properly
considered the factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 -06 (1981), and exercised her discretion within the tolerable
limits of reasonableness in deciding to remove the appellant. ID at 47-49. On
review, the appellant argues that the agency’s Douglas factor analysis was false
and misleading because it referenced her disrespectful and unprofessional conduct
toward the public, which pertained to specifications that the agency did not
sustain, and the agency provided no evidence that her alleged unprofessionalism
negatively impacted the agency’s reputation. PFR File, Tab 3 at 11. She also
asserts that the deciding official failed to consider her job-related stress as a
mitigating factor. Id.
The record reflects that, in considering the Douglas factors, the deciding
official noted that external parties had raised concerns related to the appellant’s
behavior, which could have potentially harmed the agency’s reputation, but
because little harm transpired, she did not give great weight to this factor and
instead found it to be neutral. IAF, Tab 1 at 18. Additionally, contrary to the
appellant’s contention on review, the deciding official also considered the
appellant’s medical conditions and stress as mitigating factors, but found that
despite receiving reasonable accommodations, the appellant’s conduct had been
consistent over several years and had not improved even after the imposition of
progressive discipline. Id. at 19. Thus, we agree with the administrative judge
that the record reflects that the deciding official properly considered the relevant
Douglas factors, emphasizing the seriousness of the offenses in relation to the
appellant’s position, the intentional and repeated nature of the offenses, and the
appellant’s prior disciplinary history, which included prior instances of discipline
for failure to follow instructions, disrespectful behavior, and inappropriate
9
conduct. Id. at 15-20. Accordingly, we find that the administrative judge
properly found that the penalty of removal was reasonable.
The administrative judge did not abuse his discretion in denying the appellant’s
Motion to Supplement the Record with Electronic Audio Files.
The appellant moved to introduce electronic audio files concerning
meetings she had with agency officials regarding her request for reasonable
accommodation. IAF, Tab 19. The administrative judge denied the appellant’s
motion because most of the participants in the meetings were approved to testify
as witnesses at the hearing. IAF, Tab 21 at 2-3. On review, the appellant argues
that the administrative judge abused his discretion and that such recordings were
relevant to show that she made requests for reasonable accommodation based on
her disabilities and would have enabled the administrative judge to better
understand her frustration, the information the agency had regarding her
disabilities, and her need for a reasonable accommodation. PFR File, Tab 3 at 6,
9-10. Thus, she contends that, had the administrative judge admitted the
recordings, he would have concluded that the agency did not meet its obligations.
Id. at 11.
An administrative judge has broad discretion to control the course of the
proceedings, including the discretion to exclude evidence that is unduly
repetitious. See Sanders v. Social Security Administration , 114 M.S.P.R. 487,
¶ 10 (2010). Rulings regarding the exclusion of evidence are subject to review by
the Board under an abuse of discretion standard. Lopes v. Department of the
Navy, 119 M.S.P.R. 106, ¶ 11 (2012). We find that the administrative judge did
not abuse his discretion in denying submission of the audio files to the extent that
the appellant was afforded an opportunity to testify concerning her requests for
reasonable accommodation, including the meetings she had with agency officials
and the information that she conveyed to the agency during such meetings.
Further, many of the agency officials involved in the meetings were approved as
witnesses, and, as such, the appellant was afforded an opportunity to elicit
10
relevant testimony from them concerning her requests for reasonable
accommodation.6
Accordingly, we affirm the initial decision, sustaining the appellant’s
removal.
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.
6 Not all of the individuals identified as participants to the meetings in the audio files
were called as witnesses at the hearing. IAF, Tabs 19, 21. However, the record does
not reflect that the appellant requested or was denied the opportunity to call such
witnesses. IAF, Tabs 19, 21.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
12
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Sanford_Linda_E_DA-0752-17-0096-I-1__Final_Order.pdf | 2024-02-15 | LINDA E. SANFORD v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-0752-17-0096-I-1, February 15, 2024 | DA-0752-17-0096-I-1 | NP |
2,333 | https://www.mspb.gov/decisions/nonprecedential/Gurule_Matthew_S_DE-1221-18-0145-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW S. GURULE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-1221-18-0145-W-1
DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew S. Gurule , Las Cruces, New Mexico, pro se.
Russell Wardlow , El Paso, 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 individual right of action appeal for lack of jurisdiction based on a
prior election of remedies. On petition for review, the appellant argues that the
Board should create new case law to address his removal, even though he
previously pursued the matter through negotiated grievance procedures. He
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
argues that this would be appropriate because the agency treated him improperly,
as did the arbitrator assigned to that grievance. Generally, we grant petitions
such as 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 | Gurule_Matthew_S_DE-1221-18-0145-W-1__Final_Order.pdf | 2024-02-15 | MATTHEW S. GURULE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-1221-18-0145-W-1, February 15, 2024 | DE-1221-18-0145-W-1 | NP |
2,334 | https://www.mspb.gov/decisions/nonprecedential/Allen_Marc_S_DA-3443-18-0151-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARC S. ALLEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-3443-18-0151-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G. Karl Bernard , Esquire, and Leonard M. Culotta , New Orleans,
Louisiana, 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 for lack of jurisdiction his appeal of an alleged suspension or furlough.
On petition for review, the appellant reasserts the allegations he made below that
he was furloughed when the agency required him to use paid or unpaid leave for
periodic, nonconsecutive 1-hour rest breaks “when he was denied available work
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
that was within his light-duty restrictions.” Petition for Review File, Tab 1 at 2;
Initial Appeal File, Tab 1 at 2. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review 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.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Allen_Marc_S_DA-3443-18-0151-I-1__Final_Order.pdf | 2024-02-14 | MARC S. ALLEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-3443-18-0151-I-1, February 14, 2024 | DA-3443-18-0151-I-1 | NP |
2,335 | https://www.mspb.gov/decisions/nonprecedential/Cross_Charlotte_L_CH-0752-16-0411-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLOTTE L. CROSS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-16-0411-I-2
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Denise J. Knecht , Esquire, Cleveland, Ohio, for the appellant.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
Regarding her claim that she was forced to resign because the agency
would not grant her reasonable accommodation request, the appellant asserts that
the administrative judge failed to consider all of her evidence, took a biased and
incomplete view of witness testimony, did not consider that the agency violated
Federal law and agency policy, and raised issues not previously raised in the
record or presented at the hearing. Petition for Review (PFR) File, Tab 1 at 4.
These arguments are not persuasive.
For instance, the appellant challenges the administrative judge’s statement
that she (the appellant) did not consider options such as using public
transportation that would allow her to sit or stand, using private transportation,
getting a ride to and from the agency, or driving with intermittent stops to break
up the commute. PFR File, Tab 1 at 10-11; see Cross v. Department of Veterans
Affairs, MSPB Docket No. CH-0752-16-0411-I-2, Appeal File, Tab 39, Initial
Decision (ID) at 14. The appellant also challenges the administrative judge’s
statement that it was curious that she (the appellant) asserted that her
osteoarthritis prevented her from “all methods of traveling a distance of
45 minutes from her home” but did not preclude her from traveling 15 minutes to
“her self-owned coffee shop and then putting in a full day of work.” PFR File,2
Tab 1 at 11-12; ID at 14-15. Additionally, the appellant asserts that the
administrative judge improperly noted that she did not try the agency’s offered
accommodation, she could have sought reconsideration of her accommodation
request, she could have renewed a formal request for accommodation after the
expiration of her leave under the Family and Medical Leave Act of 1993, she
could have supplemented the medical evidence that she provided to the agency,
and/or she could have pursued the Equal Employment Opportunity Commission
process while remaining at the agency. PFR File, Tab 1 at 12-13; ID at 15-16.
On review, the appellant’s attorney explains why other commuting options
were not feasible options. PFR File, Tab 1 at 10-12. However, the statements of
a party’s representative in a pleading do not constitute evidence, Hendricks v.
Department of the Navy , 69 M.S.P.R. 163, 168 (1995), and no affidavit or
declaration from the appellant was provided on review. Therefore, we do not
consider the attorney’s explanations in our analysis of this matter. Moreover, it is
appropriate for the administrative judge to consider inconsistencies in the record
and other legal and practical options that were available to the appellant at the
time of her resignation in order to evaluate whether her resignation was
involuntary. See, e.g., Miller v. Department of Defense , 85 M.S.P.R. 310, ¶¶ 10,
30, 32 (2000) (finding that the appellant failed to prove that the agency created
working conditions so intolerable that a reasonable person in her position would
have felt compelled to resign considering, among other things, that four agency
managers advised her of other options, such as filing a grievance, utilizing a
mediator, or taking some leave or leave without pay to consider the situation); see
also Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (noting that
witness character, prior inconsistent statements, and the contradiction of the
witness’s version of events by other evidence are relevant factors to consider in
assessing credibility). Accordingly, these arguments are without merit.2
2 The agency has filed a motion to strike the appellant’s reply brief and correction to her
reply brief. PFR File, Tabs 4-6. We have considered the agency’s arguments, but we
deny this motion.3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 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.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.8 | Cross_Charlotte_L_CH-0752-16-0411-I-2__Final_Order.pdf | 2024-02-14 | CHARLOTTE L. CROSS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-16-0411-I-2, February 14, 2024 | CH-0752-16-0411-I-2 | NP |
2,336 | https://www.mspb.gov/decisions/nonprecedential/Claiborne_George_T_CH-3443-19-0181-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE T. CLAIBORNE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3443-19-0181-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George T. Claiborne , Gary, Indiana, pro se.
Sheila M. Fitzpatrick , Esquire, Hines, 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 appeal for lack of jurisdiction without a hearing. On petition for
review, the appellant argues that his appeal is based on reprisal, and he contests
the way that the agency framed his October 10, 2018 discrimination complaint.
The appellant has attached correspondence with the agency concerning his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
discrimination complaint, as well as documentation regarding some
nonselections. Generally, we grant petitions such as 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 | Claiborne_George_T_CH-3443-19-0181-I-1 Final Order.pdf | 2024-02-14 | GEORGE T. CLAIBORNE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3443-19-0181-I-1, February 14, 2024 | CH-3443-19-0181-I-1 | NP |
2,337 | https://www.mspb.gov/decisions/nonprecedential/Binns-Harty-Bolt_Rinella_NY-0353-17-0109-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RINELLA BINNS-HARTY-BOLT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0353-17-0109-I-2
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Jericho, New York, for the appellant.
Thien-Nga Muller , Albany, 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 her restoration-to-duty appeal for lack of jurisdiction. On petition for
review, the appellant challenges the administrative judge’s dismissal of her
appeal on jurisdictional grounds. 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 | Binns-Harty-Bolt_Rinella_NY-0353-17-0109-I-2__Final_Order.pdf | 2024-02-14 | null | NY-0353-17-0109-I-2 | NP |
2,338 | https://www.mspb.gov/decisions/nonprecedential/Barrette_Ronald_J_AT-1221-16-0840-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD J. BARRETTE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-16-0840-W-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Jenkintown, Pennsylvania, 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 his request for corrective action in this individual right of action appeal.
On petition for review, the appellant argues that the Personnel Standards Board
hearing was biased, the agency did not follow proper procedures, and the
evidence before the Personnel Standards Board was insufficient to support its
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
recommendation to terminate his employment. The appellant also disputes the
administrative judge’s analysis of the third Carr factor, as well as certain
discovery rulings. Generally, we grant petitions such as 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 | Barrette_Ronald_J_AT-1221-16-0840-W-1 Final Order.pdf | 2024-02-14 | RONALD J. BARRETTE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-16-0840-W-1, February 14, 2024 | AT-1221-16-0840-W-1 | NP |
2,339 | https://www.mspb.gov/decisions/nonprecedential/Carpenter_Edward_W_PH-0752-15-0251-C-1 Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD W. CARPENTER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-15-0251-C-1
DATE: February 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
Edward W. Carpenter , East Lebanon, Maine, pro se.
Scott W. Flood , Esquire, Portsmouth, New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement. For the reasons discussed
below, we GRANT the appellant’s petition for review and REVERSE the
compliance initial decision. We find the agency in noncompliance with the
settlement agreement and refer the petition for enforcement to the Board’s Office
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of General Counsel to obtain compliance with the parties’ settlement agreement
and issuance of a final decision. See 5 C.F.R. § 1201.183(c).
BACKGROUND
In March 2015, the appellant timely filed an initial appeal contesting his
removal from his position with the agency as a Painter. Carpenter v. Department
of the Navy, MSPB Docket No. PH -0752-15-0251-I-1, Initial Appeal File (IAF),
Tab 1. In August 2015, the parties executed a settlement agreement, which
provided that, in exchange for the appellant’s withdrawal of his appeal and
agreement not to accept certain types of employment, the agency agreed to
(1) expunge the decision to remove the appellant, (2) submit a Standard Form 50
that reflected resignation in lieu of an involuntary action, (3) pay the appellant
“the sum of money due to him determined by the Back Pay Act for the period
from 14 Apr 2014 through 27 Feb 2015,” and (4) pay the appellant for any annual
leave accrued during the back pay period. IAF, Tab 9 at 4-6; Carpenter v.
Department of the Navy , MSPB Docket No. PH-0752-15-0251-C-1, Compliance
File (CF), Tab 1 at 23-25. The appellant also agreed to assist the agency by
completing the necessary documentation for the Defense Finance and Accounting
Services (DFAS) to calculate “the proper settlement in accordance with the Back
Pay Act.” IAF, Tab 9 at 5; CF, Tab 1 at 24. Also in August 2015, the
administrative judge issued an initial decision incorporating the settlement
agreement into the record. IAF, Tab 10. In incorporating the agreement into the
record, the administrative judge found that the Board had jurisdiction over the
underlying appeal, the parties understood and freely accepted the terms of the
agreement, the parties had requested that the agreement be entered into the record
for the Board to retain jurisdiction to enforce its terms, and the agreement was
lawful. Id. Accordingly, the administrative judge dismissed the appeal. Id. The
initial decision became the final decision of the Board when neither party filed a
petition for review. 2
On December 13, 2018, the appellant timely filed a petition for
enforcement alleging that the agency had breached the settlement agreement.2
CF, Tab 1. He provided an October 19, 2018 letter from DFAS informing him
that he was “overpaid for prepaid Federal Employees Health Benefits premiums
for pay periods ending August 23, 2014 through March 7, 2015,” and requesting
payment in the amount of $1,712.99. CF, Tab 1 at 3-8. The appellant appeared
to be alleging that, under the settlement agreement, he should not owe the debt.
Id. at 27. The administrative judge issued an order directing the agency to file
proof that it had complied with the settlement agreement. CF, Tab 3. The agency
filed a response in which it argued that, when the agency paid the appellant
pursuant to the settlement agreement, the appellant was obligated to pay past due
health insurance premiums and that he could have negotiated as a term of the
agreement that the agency withhold the premiums from his settlement payment
but did not, thus the agency was in compliance with the agreement. CF, Tab 6.
The administrative judge subsequently issued an order summarizing the agency’s
arguments, explaining the relevant provisions of the Back Pay Act and its
implementing regulations, and directing the appellant to respond. CF, Tab 7.
The appellant did not file a response prior to the close of the record.
The administrative judge issued a compliance initial decision denying the
appellant’s petition for enforcement. CF, Tab 8, Compliance Initial Decision
(CID). He found that the overpayment for health insurance premiums occurred
during the time period for which the agency agreed to pay the appellant a sum
2 The administrative judge did not address the timeliness of the petition for
enforcement; however, we find it was timely filed. An appellant must file a petition for
enforcement alleging a breach of a settlement agreement within a reasonable time after
the petitioner becomes aware of the breach. Eagleheart v. U.S. Postal Service ,
113 M.S.P.R. 89, ¶ 12 (2009). The record reflects that, following the appellant’s
receipt of the October 19, 2018 letter showing that he owed a debt resulting from the
overpayment of health insurance premiums, he made several attempts to resolve the
issue, the last of which occurred on December 10, 2018. CF, Tab 1 at 3-8, 27. The
appellant’s petition for review, filed 3 days after his final attempt to resolve the debt,
was filed within a reasonable time.3
owed to him under the Back Pay Act. CID at 4. According to the administrative
judge, the appellant had not argued that he elected to forego health insurance
coverage during the period in question or that the agency had already deducted
the premiums owed from the back pay it paid him pursuant to the agreement.
CID at 5. The administrative judge thus found that, at the time the settlement
agreement was executed, the appellant had received the benefit of the health
insurance coverage and owed the debt for the premiums. CID at 5. The
administrative judge also found that the Back Pay Act’s implementing regulations
did not require the agency to offset the back pay amount by the amount of the
premiums owed. CID at 5-6. The administrative judge thus determined that the
appellant had not shown a breach of the agreement and denied the petition for
enforcement. CID at 6.
The appellant has timely filed a petition for review of the compliance
initial decision, to which the agency has filed an opposition. Petition for Review
(PFR) File, Tabs 1, 3. As set forth below, we find that the appellant has shown
that the agency has breached the settlement agreement and reverse the compliance
initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior , 114 M.S.P.R. 679, ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. In a
compliance action based on a settlement agreement, the burden of proving
noncompliance rests with the party asserting that the agreement has been
breached. Raymond v. Department of the Navy , 116 M.S.P.R. 223, ¶ 4 (2011).
The appellant, as the party asserting the breach, must show that the agency failed
to abide by the terms of the settlement agreement. Id. The agency nonetheless is4
required to produce evidence that it has complied with the settlement agreement.
Id.
On review, the appellant argues that he should not owe the health insurance
premiums at issue; he states that in February 2014, he received a letter stating
that his insurance would end in March 2014. PFR File, Tab 1 at 3. He alleges
that he did not have health insurance through the agency during the period for
which he received back pay and was instead insured through his wife during that
time. Id. The appellant also states that he affirmatively informed the agency that
he did not want his health insurance reinstated during the back pay period. Id. In
support of his statement, he attaches a copy of a DFAS form entitled “Employee’s
Statement Relative to Back Pay,” which states that the form “must be completed
prior to payment of back pay.” Id. at 6. The sixth question on the DFAS form
asks, “Do you wish to have your health insurance reinstated during the back pay
period? If yes, deductions will be taken for each missed pay period from your
settlement amount,” to which the appellant responded, “NO.” Id. The appellant
signed and dated the form June 29, 2015. Id. at 7. In its opposition to the
petition for review, the agency maintains that the appellant has not shown that it
breached the settlement agreement and has not timely raised the arguments in his
petition for review but does not dispute the veracity of the appellant’s factual
assertions or documentary evidence. PFR File, Tab 3.
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. 5 C.F.R.
§ 1201.115; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
The appellant has not argued that the evidence he has submitted on review
regarding his election to decline the retroactive reinstatement of his health
insurance during the back pay period was unavailable prior to the close of the
record below, and ordinarily, we would decline to consider it. Under the
circumstances presented in this case, however, we will consider this evidence.5
First, the administrative judge’s March 18, 2019 order was not entirely clear as to
the information the appellant was to submit to address the disputed issues in this
case. In his order, the administrative judge outlined the circumstances under
which health insurance premiums may be deducted from a back pay award and
ordered the appellant to “clearly state his claim(s) in response, and clearly state
and [sic] disagreement with my assessment of the facts and applicable law.” CF,
Tab 7. Given the appellant’s pro se status, we find that the order may not have
clearly informed the appellant of the evidence he was to provide in response.
See, e.g., Anthony v. Department of Justice , 76 M.S.P.R. 45, 51 (1997) (providing
that, where the administrative judge did not provide the appellant with sufficient
notice that he must address an issue or the required burden of proof, the Board
has considered newly submitted evidence and arguments on the basis that they
were previously unavailable).
Moreover, the documentation the appellant has submitted reveals that the
agency knew, or at least had evidence in its possession, of the appellant’s clear
election to decline retroactive reinstatement of his health insurance coverage in
the computation of back pay. An agency may not sit by concealing evidence that
would change the result in the case. See Montalvo v. U.S. Postal Service ,
91 M.S.P.R. 671, ¶ 11 (2002) (considering on review evidence that the appellant’s
appeal was timely filed where the agency knew that the appellant’s case was
timely filed, yet filed a motion to dismiss in which it asserted that the appeal was
untimely). The DFAS form the appellant signed containing his election was a
prerequisite to the payment of back pay, and the appellant returned the form to an
agency representative. PFR File, Tab 1 at 3-7. Additionally, the appellant signed
the DFAS form in June 2015; thus, it is likely that the agency was in possession
of the form prior to the August 2015 execution of the settlement agreement. Id.
at 7. The agency has not disputed the veracity of the DFAS form or that it
received the form. We thus find it appropriate to consider this relevant
information on review.6
The settlement agreement provided that the agency would pay the appellant
a sum of money due to him for the period of April 14, 2014, through February 27,
2015, in accordance with the Back Pay Act. CF, Tab 1 at 24. Title 5 of the Code
of Federal Regulations, section 550.805(e)(3)(iii), provides that in computing
back pay, an agency must deduct from the gross back pay award health benefits
premiums if coverage is retroactively reinstated at the employee’s election under
5 U.S.C. § 8908(a).3 Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 14
(2007). Here, the appellant has asserted that the agency terminated his health
insurance coverage during the relevant time period and that he was instead
covered by his wife’s insurance, and he has provided evidence that he
affirmatively declined to retroactively reinstate his health insurance coverage
prior to the calculation of the back pay owed to him. PFR File, Tab 1 at 6. The
agency has not disputed the appellant’s assertions and evidence. PFR File, Tab 3.
Accordingly, we find that DFAS erred in calculating an overpayment in health
insurance premiums during the back pay period and seeking to collect the
overpayment from the appellant. See Fernandez, 105 M.S.P.R. 443, ¶¶ 14-16
(providing that, if the appellant did not exercise his option to elect to have his
health benefits retroactively restored, he was entitled to reimbursement for the
health insurance premiums that the agency deducted from his back pay when it
retroactively restored his health benefits coverage).
DFAS acted as the agency’s agent in calculating back pay under the
settlement agreement and the erroneous overpayment arising from that
calculation; thus, the error is the agency’s responsibility. CF, Tab 1 at 24; see
Tichenor v. Department of the Army , 84 M.S.P.R. 386, ¶ 8 (1999) (rejecting the
agency’s argument that severance pay withheld by DFAS was not the result of the
3 Under 5 U.S.C. § 8908(a), an employee enrolled in a health benefits plan who is
removed or suspended without pay and later reinstated or restored to duty on the ground
that the removal or suspension was unjustified or unwarranted may, at his option, have
his coverage restored, with appropriate adjustments made in contributions and claims,
to the same extent and effect as though the removal or suspension had not taken place.7
agency’s action because the agency was using DFAS as its paying agent). Upon
review of the appellant’s evidence in support of noncompliance and the agency’s
failure to refute that evidence, we find the agency to be in noncompliance with
the settlement agreement. Cf. Tubesing v. Department of Health and Human
Services, 112 M.S.P.R. 393, ¶¶ 17-18 (2009) (providing that, where the appellant
has provided detailed information supporting his specific allegations of
noncompliance, the agency’s provision of no more than a cursory explanation is
insufficient to show compliance).
Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
agency’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and any objections to that evidence. Thereafter, the Board will issue
a final decision fully addressing the petition for review of the compliance initial
decision4 and setting forth the parties’ further appeal rights and the right to
attorney fees, if applicable.
ORDER
We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
4 The subsequent decision may incorporate the analysis and findings set forth in this
Order.8
submission shall demonstrate that, in accordance with the appellant’s election not
to retroactively reinstate health insurance coverage for the time period covered by
the August 6, 2015 settlement agreement, it has cancelled the reinstatement of the
appellant’s health insurance coverage for this time period and the associated
health insurance premiums charged to the appellant. The agency must serve all
parties with copies of its submission.
The agency’s submission should be filed under the new
docket number assigned to this compliance referral matter, MSPB Docket
No. PH-0752-15-0251-X-1 . All subsequent filings should refer to the compliance
referral docket number set forth above and should be faxed to (202) 653-7130 or
mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(a). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee9
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Carpenter_Edward_W_PH-0752-15-0251-C-1 Order.pdf | 2024-02-14 | EDWARD W. CARPENTER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-15-0251-C-1, February 14, 2024 | PH-0752-15-0251-C-1 | NP |
2,340 | https://www.mspb.gov/decisions/nonprecedential/Ahmed_Ahmed_DA-0752-21-0003-M-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AHMED AHMED,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-21-0003-M-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
ichael Kleinman , Esquire, Houston, Texas, for the appellant.
Michele Kenney , San Diego, California, for the agency.
Cary Elizabeth Zuk , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This appeal is with the Board on remand from the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit). For the reasons set forth below, we
DISMISS the appeal as settled .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
¶2After the Federal Circuit remanded this appeal, the agency submitted a
document titled “SETTLEMENT AGREEMENT,” signed and dated by the
appellant and his representative on September 14 and 15, 2023, respectively, and
by the agency on October 16, 2023. Ahmed v. Department of Homeland Security ,
MSPB Docket No. DA-0752-21-0003-M-1, Remand File (RF), Tab 4 at 5-11. The
document provides, among other things, for the withdrawal of the present appeal.
Id. at 5-6.
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. RF, Tab 4 at 10. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may not
refile this appeal) is appropriate under these circumstances. In addition, we find
that the agreement is lawful on its face and freely entered into, id., and we accept
the settlement agreement into the record for enforcement purposes.
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by2
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 | Ahmed_Ahmed_DA-0752-21-0003-M-1_Final_Order.pdf | 2024-02-14 | AHMED AHMED v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-21-0003-M-1, February 14, 2024 | DA-0752-21-0003-M-1 | NP |
2,341 | https://www.mspb.gov/decisions/nonprecedential/Dolce_Djery_NY-0752-22-0026-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DJERY DOLCE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-22-0026-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndrea Batres , Esquire, Garden City, New York, for the appellant.
Colleen Piccone , Esquire, Elizabeth Connelly , Esquire, Floren J. Taylor ,
Esquire, and Todd F. Smith , 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 his removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to discuss the appellant’s discrimination and retaliation affirmative
defenses, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was removed from Federal service, effective November 5,
2021, for (1) misuse of TECS, a law enforcement database, (2) misuse of
position, and (3) lack of candor. Initial Appeal File (IAF), Tab 1 at 10-20. The
appellant filed a Board appeal challenging his removal on the merits, and he
raised affirmative defenses of due process, harmful procedural error,
discrimination based on color and sex, and retaliation. IAF, Tab 12 at 4-5,
Tab 35, Initial Decision (ID) at 13-38. After a hearing on the merits, the
administrative judge sustained all three charges, denied the appellant’s
affirmative defenses, and affirmed the penalty of removal. ID at 13-47. The
appellant has filed a petition for review, and the agency has filed a response in
opposition. Petition for Review (PFR) File, Tabs 3, 5.
We agree with the administrative judge that the agency proved its charges.
The appellant argues on review, as he did before the administrative judge,
that the lack of candor charge should not be sustained.2 PFR File, Tab 3 at 9-11.
2 In his petition for review, the appellant has not challenged the administrative judge’s
findings regarding the first two charges. PFR File, Tab 3. We find no error in them,2
A lack of candor charge requires proof that the appellant (1) gave incorrect or
incomplete information, and (2) that he did so knowingly. Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016). A lack of candor
charge may involve a failure to disclose something that, under the circumstances,
should have been disclosed in order to make the given statement accurate and
complete. Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir.
2002).
The lack of candor charge is based on the appellant’s testimony during a
deposition, wherein he denied using his security clearance to “check information”
on an individual with whom he was having a legal dispute. IAF, Tab 8 at 75-76.
It is undisputed that the appellant used TECS to view the arrest record of the
individual in question and that he did not disclose this incident in response to the
deposition question. IAF, Tab 9 at 91, Tab 22 at 8-10. The appellant argues that
he did not knowingly give incorrect information, and he advances a series of
alternative explanations in support thereof, including that he did not know that
viewing an arrest report in TECS constituted misuse, he misunderstood the
deposition question, and/or he did not recall the incident at the time of his
deposition testimony. PFR File, Tab 3 at 9-12.
In the initial decision, the administrative judge considered the appellant’s
defenses that his use of TECS to access the arrest report was authorized and that
he did not know his conduct constituted misuse, and she found that the
appellant’s testimony was not credible. ID at 18-19. The Board must defer to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at the
hearing. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002). We find that the appellant has not established a sufficiently sound basis to
overturn the administrative judge’s credibility determinations. See id. The
administrative judge also considered and rejected the appellant’s assertion that he
and we therefore affirm them. ID at 13-26.3
misunderstood the deposition question. ID at 28. We agree with this finding for
the reasons stated in the initial decision. Id.
The appellant has also asserted that the administrative judge erred by not
viewing video footage of a later investigative interview, wherein the appellant
was questioned about accessing the arrest record. PFR File, Tab 3 at 9.
However, the administrative judge cited to the video footage in the initial
decision. ID at 4. Moreover, even accepting as true the appellant’s assertion that
he did not “readily admit” to improperly accessing the arrest record in a later
investigative interview, we find that a different result is not warranted. PFR File,
Tab 3 at 9. The lack of candor charge is based on the appellant’s responses at a
deposition and not his responses at a later investigative interview. IAF, Tab 8
at 136-37.
In sum, we find that the administrative judge considered the evidence as a
whole, drew appropriate references, and made reasoned conclusions on issues of
credibility, and we therefore find no basis to disturb her conclusions. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987).
Accordingly, we find that the agency proved the lack of candor charge by
preponderant evidence.
We agree with the administrative judge that the appellant failed to prove his
affirmative defenses.
Before the administrative judge, the appellant raised the following
affirmative defenses: (1) due process, (2) harmful procedural error,
(3) discrimination based on sex and color, and (4) retaliation based on prior equal
employment opportunity (EEO) activity.3 ID at 29-38. On review, the appellant
has not challenged the administrative judge’s finding that he failed to prove a due
3 The appellant has not clearly identified the basis of his retaliation claim. E.g., IAF,
Tab 12, Tab 22 at 4-5. However, he has not challenged the administrative judge’s
characterization of his claim or her analysis under the standards set forth in Title VII of
the Civil Rights Act of 1964. 4
process violation. PFR File, Tab 3. We find no error in this finding, and we
therefore affirm it. ID at 29-32.
The appellant argues on review, as he did before the administrative judge,
that the agency committed harmful procedural error by conducting an improper
and insufficient investigation and by allegedly coercing him into admitting to
misconduct. PFR File, Tab 3 at 7-9. To prove harmful error, an appellant must
show 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
that error. 5 C.F.R. § 1201.4(r); see Stephen v. Department of the Air Force ,
47 M.S.P.R. 672, 685 (1991). The appellant has shown no evidence of coercion,
and, in any event, the charges sustained by the deciding official were not based
on the allegedly coerced statements. IAF, Tab 8 at 47-48, 75 -76; PFR File, Tab 3
at 8. Further, despite the appellant’s disagreement with the agency’s
investigative procedures, he was free to provide evidence, argument, and
clarification to the deciding official prior to a decision on the proposed removal,
and he did so in his written reply. IAF, Tab 8 at 52-74. For these reasons, and
for the reasons stated in the initial decision, we find that the appellant has failed
to prove that any other procedure would likely have caused the agency to reach a
different conclusion. ID at 33-35.
The appellant has not challenged the administrative judge’s finding that he
failed to prove his sex and color discrimination and retaliation defenses. PFR
File, Tab 3. In analyzing those claims, the administrative judge identified the
legal standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612
(2015), she discussed the various methods of direct and circumstantial evidence,
and she concluded that the appellant did not prove that his sex, color, or protected
EEO activity was a motivating factor in the removal decision. ID at 35-38. The
Board has since overruled Savage to the extent it held that the McDonnell
Douglas framework is not applicable to Board proceedings. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 25 (citing McDonnell Douglas5
Corporation v. Green , 411 U.S. 792, 802-04 (1973)). Nonetheless, the outcome
of this appeal under Pridgen would be the same as that arrived at by the
administrative judge. Under Pridgen, to obtain any relief, the appellant must still
show, at a minimum, that the prohibited consideration was a motivating factor in
the agency’s decision to remove him, Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30, and
we agree with the administrative judge that the appellant failed to make this
showing, ID at 35-38. Because the appellant failed to prove that sex, color, or
protected EEO activity was a motivating factor, he necessarily failed to prove it
was a “but-for” cause of his removal. See Pridgen, 2022 MSPB 31, ¶ 22, 30.
We agree with the administrative judge that removal does not exceed the bounds
of reasonableness.
On review, the appellant argues that the penalty of removal exceeds the
bounds of reasonableness. PFR File, Tab 3 at 12-13. He asserts that the agency’s
offer to settle the disciplinary action with a last chance agreement, suspension,
and reassignment is sufficient to show that alternative sanctions are adequate to
deter future misconduct and that the penalty should be mitigated on that basis.
PFR File, Tab 3 at 12-13. However, the Board has held that an agency’s offer of
settlement is entitled to no weight in considering the propriety of mitigation of an
agency-imposed penalty. Cheng v. Department of Agriculture , 84 M.S.P.R. 144,
¶ 5 (1999). We agree with the administrative judge’s detailed analysis of the
penalty determination, and we therefore affirm her finding that the penalty of
removal is reasonable. ID at 39-47 (citing Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981)).
Accordingly, we deny the appellant’s petition for review and affirm the
initial decision as modified herein.6
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Dolce_Djery_NY-0752-22-0026-I-1_Final_Order.pdf | 2024-02-14 | DJERY DOLCE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-22-0026-I-1, February 14, 2024 | NY-0752-22-0026-I-1 | NP |
2,342 | https://www.mspb.gov/decisions/nonprecedential/Davis_Vincent_M_CH-3443-18-0241-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT MARVIN DAVIS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-3443-18-0241-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vincent Marvin Davis , Wauseon, Ohio, pro se.
Lindsay Cohn Rausch , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
submits alleged new evidence. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Regarding the evidence that the appellant submits on review, the Board
may grant a petition for review when new and material evidence is available that,
despite the petitioner’s due diligence, was not available when the record closed.
5 C.F.R. § 1201.115. In this case, part of the evidence the appellant submits with
his petition was submitted below and is, therefore, not new. See Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (stating that evidence that
is already a part of the record is not new). The rest of the evidence was available
before the close of the record below and is not new or material. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Thus, the evidence the
appellant submits with his petition does not provide a basis for review.
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 | Davis_Vincent_M_CH-3443-18-0241-I-1__Final_Order.pdf | 2024-02-14 | VINCENT MARVIN DAVIS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-3443-18-0241-I-1, February 14, 2024 | CH-3443-18-0241-I-1 | NP |
2,343 | https://www.mspb.gov/decisions/nonprecedential/Bernholz_Richard_M_PH-0831-17-0369-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD M. BERNHOLZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-0831-17-0369-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Katie A. Chillemi , 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 agency’s decision denying his request for law enforcement officer
(LEO) retirement credit as untimely filed. On petition for review, the appellant
argues that he is entitled to LEO retirement credit because he served in covered
positions with no break in service for the period from September 1990 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
September 2000. Generally, we grant petitions such as 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. | Bernholz_Richard_M_PH-0831-17-0369-I-1 Final Order.pdf | 2024-02-14 | RICHARD M. BERNHOLZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-0831-17-0369-I-1, February 14, 2024 | PH-0831-17-0369-I-1 | NP |
2,344 | https://www.mspb.gov/decisions/nonprecedential/Bailey_Adrienne_L_DA-3443-18-0338-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADRIENNE L. BAILEY,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DA-3443-18-0338-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adrienne L. Bailey , Knoxville, Tennessee, pro se.
Tonya Savage , 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 nonselection appeal for lack of jurisdiction. The administrative
judge ordered the appellant to file evidence and argument as to why the Board has
jurisdiction over the matter, and the appellant did not respond. On petition for
review, the appellant did not provide any argument or evidence relevant 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
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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. | Bailey_Adrienne_L_DA-3443-18-0338-I-1 Final Order.pdf | 2024-02-14 | ADRIENNE L. BAILEY v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DA-3443-18-0338-I-1, February 14, 2024 | DA-3443-18-0338-I-1 | NP |
2,345 | https://www.mspb.gov/decisions/nonprecedential/Walker_Debbie__L_NY-1221-22-0167-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBBIE LOU WALKER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
NY-1221-22-0167-W-1
DATE: February 14, 2024
THIS ORDER IS NONPRECEDENTIAL1
James R. Walker , Byron, Georgia, for the appellant.
Ryan Devine , Esquire, Fort Gregg Adams, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her 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, FIND that the appellant established Board
jurisdiction over her appeal, and REMAND the case to New York Field Office for
further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant works as a GS-13 Store Director of the Mitchel Field
Commissary at the Defense Commissary Agency (DCA). Initial Appeal File
(IAF), Tab 7 at 17, 30. On or about May 21, 2020, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging whistleblower reprisal. Id.
at 12-54. After OSC issued the appellant a letter notifying her that it was
terminating its investigation into her complaint, the appellant filed an IRA appeal
with the Board. IAF, Tabs 1, 3. The administrative judge issued a jurisdictional
order, notifying the appellant of the IRA jurisdictional standard, and providing
her with an opportunity to present evidence and argument establishing Board
jurisdiction over her IRA appeal. IAF, Tab 4.
¶3The appellant responded to the administrative judge’s order,2 alleging that
the agency retaliated against her because she disclosed that the Federal contractor
providing personnel support to the commissary was fraudulently billing the
agency in the amount of $1.275 million. IAF, Tabs 7 at 2-8, Tab 13 at 4-13.
Without holding a hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID).
First, the administrative judge found that the appellant alleged two instances of
whistleblowing, specifically, an April 3, 2020 disclosure of “contractor
impropriety” and a May 21, 2020 OSC complaint. ID at 3. Then, the
administrative judge found that the appellant did not prove exhaustion as it
relates to the May 21, 2020 OSC complaint. ID at 3. Next, the administrative
judge found that, while the appellant proved exhaustion with regards to her
April 3, 2020 disclosure, she did not make a nonfrivolous allegation that she held
a reasonable belief that her disclosures evidenced agency wrongdoing because she
2 Although the appellant responded to the administrative judge’s initial jurisdictional
order, IAF, Tabs 7-8, the administrative judge issued a second jurisdictional order,
stating that the appellant’s response did not comply with her order, and directing the
appellant to provide a “concise list” of her allegations, IAF, Tab 9. The appellant
responded to the administrative judge’s second jurisdictional order. IAF, Tabs 13-14.2
disclosed wrongdoing by a non-Federal entity. ID at 3-5. Concluding that the
April 3, 2020 disclosure was a “quintessential contractual issue,” the
administrative judge found that the appellant did not make a nonfrivolous
allegation that she made a protected disclosure. ID at 5.
¶4The appellant has filed a petition for review, arguing, in part, that agency
personnel were implicated in her disclosures, and she reasonably believed her
disclosures evidenced agency wrongdoing. Petition for Review (PFR) File, Tab 1
at 4-5. The agency responded in opposition to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5As an initial matter, the administrative judge did not capture the totality of
the appellant’s claims, incorrectly stating that the appellant alleged only two
instances of whistleblowing. ID at 3. Therefore, we must correct the framing of
the appellant’s allegations. The appellant asserted in her jurisdictional responses
that: (1) in November 2019, she disclosed to the Department of Defense
Inspector General (DOD IG) that the Federal contractor was fraudulently billing
the agency; (2) in December 2019, she disclosed to the DCA’s Inspector General
(IG) that the Federal contractor was fraudulently billing the agency; (3) in
January 2020, she disclosed to the agency’s contracting officer that the Federal
contractor was fraudulently billing the agency, (4) in February 2020, she
disclosed to her first-line supervisor that the Federal contractor was fraudulently
billing the agency; and (5) on April 3, 2020, she disclosed to her second-line
supervisor that the Federal contractor was fraudulently billing the agency.3 IAF,
3 The appellant also alleged that she made disclosures to OSC, first on April 28, 2020,
and then by filing an OSC complaint on May 21, 2020, which is the complaint that
serves as the basis of this appeal. IAF, Tab 13 at 4. Regarding the April 28, 2020 OSC
disclosure, the appellant did not reference this disclosure in any other submission to the
Board or to OSC, nor has she claimed on review that she made a disclosure to OSC on
April 28, 2020. IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13; PFR File, Tab 1 at 4-6.
However, even if the appellant made a disclosure to OSC on April 28, 2020, there is no
evidence that she raised this claim to OSC, and thus, she did not prove exhaustion.3
Tab 13 at 4-5. She also alleged that, in retaliation for her disclosures, the agency
(i) subjected her to a hostile work environment; (ii) failed to detail her as the
acting Store Director of another commissary; (iii) issued her an “unfair” award;
(iv) failed to select her for three vacant positions; and (v) issued her an unfair
performance review. Id. at 4-6.
¶6Because the administrative judge did not accurately characterize the
appellant’s claims, she did not properly apply the IRA jurisdictional framework.
First, we address the issue of exhaustion, finding that the appellant exhausted
only a portion of her claims, specifically, that the agency retaliated against her for
her disclosures to the DOD IG, the DCA IG, and her first- and second-line
supervisors, by subjecting her to a hostile work environment, issuing her an
“unfair” award, and not selecting her for three positions. However, we find that
the appellant did not make a nonfrivolous allegation that the cumulative effect of
the agency’s actions constituted a significant change in her working conditions,
and therefore, her hostile work environment claim is not a covered personnel
action. Next, we find that, while the appellant nonfrivolously alleged that she
engaged in protected activity by making disclosures to the DOD and DCA IGs,
she did not make a nonfrivolous allegation that the protected activity was a
contributing factor in any personnel action. Nevertheless, because we find that
the appellant nonfrivolously alleged that she made protected disclosures to her
first- and second-line supervisors that were a contributing factor in the agency’s
personnel actions, we find that the Board has jurisdiction over this appeal.
The appellant proved exhaustion with respect to a portion of her claims.
¶7We find that the appellant proved exhaustion only with respect to a portion
of the claims she set forth in her jurisdictional response. IAF, Tab 13 at 4-6. To
IAF, Tab 7 at 12-54. Regarding the appellant’s May 21, 2020 OSC complaint, it is
unclear whether the appellant is alleging that she was retaliated against for filing this
complaint. IAF, Tab 13 at 4-6. Nevertheless, we agree with the administrative judge
that the appellant did not prove that she exhausted her administrative remedies
regarding the May 21, 2020 OSC complaint, ID at 3, and the appellant does not
challenge this finding on review.4
satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must
have provided OSC with a sufficient basis to pursue an investigation into her
allegations of whistleblower reprisal. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 7; Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s OSC
complaint, evidence the original complaint was amended, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC. Skarada,
2022 MSPB 17, ¶ 7; Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011). Alternatively, exhaustion may be proven through other
sufficiently reliable evidence, such as an affidavit attesting that the appellant
raised with OSC the substance of the facts in her Board appeal. Skarada,
2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11. The appellant must prove
exhaustion with OSC by preponderant evidence, not just present nonfrivolous
allegations of exhaustion. Chambers, 2022 MSPB 8, ¶ 11.
¶8The record contains a copy of the appellant’s May 21, 2020 OSC complaint,
a detailed narrative of her claims that she provided to OSC, and a copy of OSC’s
close-out letter. IAF, Tab 3, Tab 7 at 12-54. Based on our review of these
documents, we find that the appellant raised to OSC that she disclosed the Federal
contractor’s fraudulent billing to the DOD IG, the DCA’s IG, and her first- and
second-line supervisors. IAF, Tab 7 at 20, 30-39. Furthermore, of the personnel
actions alleged by the appellant in her jurisdictional response, OSC’s close-out
letter references the hostile work environment claim, the “unfair” award, and the
three nonselections. IAF, Tab 3. There is no evidence that the appellant raised
DCA’s failure to detail her or her performance evaluation to OSC.4 IAF, Tab 7 at
12-54. Similarly, there is no evidence that the appellant alleged to OSC that she
4 On review, the appellant admits that she did not raise the performance evaluation to
OSC. PFR File, Tab 1 at 5. 5
made a protected disclosure to the agency’s contracting officer in January 2020,
as she asserted in her jurisdictional response. IAF, Tab 7 at 12-54, Tab 13 at 4.
¶9Accordingly, we find that the appellant proved exhaustion with respect to
the following: that she disclosed allegations of fraudulent billing by the Federal
contractor to (1) the DOD IG; (2) the DCA IG; (3) her first-line supervisor; and
(4) her second-line supervisor, and in retaliation, the agency (i) subjected her to a
hostile work environment; (ii) issued her an “unfair” award; and (iii) did not
select her for three vacant positions.
The appellant’s hostile work environment claim is not a covered personnel action
because the appellant did not make a nonfrivolous allegation that the cumulative
effect of the agency’s actions constituted a significant change in her working
conditions.
¶10The administrative judge, before issuing the initial decision, issued an order
and findings on jurisdiction, “disallowing” the appellant’s claim of hostile work
environment because the appellant did not allege facts that would meet the legal
burden to allege a hostile work environment. IAF, Tab 17 at 3. Specifically, the
administrative judge stated that, to prevail on a hostile work environment claim,
the appellant must show that the complained-of conduct was objectively and
subjectively discriminatory, and was so severe or pervasive as to create a working
environment that a reasonable person would find hostile. Id. The administrative
judge concluded that the appellant’s allegations were “lacking.” Id.
¶11To the extent the administrative judge cited to case law interpreting
Title VII in defining a hostile work environment for purposes of this IRA appeal,
her reliance on this case law was in error. IAF, Tab 17 at 3 (citing Harris v.
Forklift Systems, Inc. , 510 U.S. 17, 21-22 (1993) (explaining that under Title VII,
an employee may pursue a claim based on conduct that is both “severe or
pervasive enough to create . . . an environment that a reasonable person would
find hostile or abusive” and that the victim “subjectively perceive[d]” as
“abusive”)). Although the term “hostile work environment” has a particular
meaning in other contexts, the Board has clarified that allegations of a hostile6
work environment may establish a personnel action in an IRA appeal only if they
meet the statutory criteria, i.e., constitute a “significant change in duties,
responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xii).
Skarada, 2022 MSPB 17, ¶ 16. Only agency actions that, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by 5 U.S.C. § 2302(a)(2)(A)(xii).
Skarada, 2022 MSPB 17, ¶ 16.
¶12Although the administrative judge advised the parties of the Title VII
definition of hostile work environment, we find that the definition she used was
sufficient to advise the appellant of the need to identify the impact of the
agency’s actions on her workplace, as stated in Skarada. Specifically, the
administrative judge identified as factors relevant in determining whether agency
conduct rises to the level of actionable harassment as including the frequency and
severity of the conduct and whether it interferes with performance. IAF, Tab 17
at 3. Under these circumstances, we conclude that the administrative judge’s
error was not harmful. See As’Salaam v. U.S. Postal Service , 85 M.P.S.R.
76, ¶ 14 (2000) (finding harmless an administrative judge’s error in failing to
notify the appellant that his burden at the jurisdictional stage of his appeal was to
make nonfrivolous allegations when the undisputed facts made clear he could not
meet this burden).
¶13We also agree with the administrative judge that the appellant’s allegations
do not amount to a nonfrivolous allegation of a significant change in her duties,
responsibilities, or working conditions. The appellant’s hostile work environment
claim includes the following allegations: denying her request to deep clean the
store, denying her request to telework when she had COVID-19, denying her
access to the commissary while she had COVID-19, requiring her to produce
three doctor’s notes to return to work after she had COVID-19, giving awards to
the employees who worked while she was on leave due to COVID-19, requiring7
her to contact an employee on sick leave, defaming and slandering her to the
Command, and preventing her from filling vacant positions in the commissary
store. IAF, Tab 13 at 4-13. The appellant does not challenge the administrative
judge’s findings on review, nor has she explained how the listed actions impacted
her working conditions, duties, or responsibilities. IAF, Tab 7 at 2-8, Tab 13 at
4-13; PFR File, Tab 1 at 4-6. Accordingly, the appellant did not make a
nonfrivolous allegation that her hostile work environment claim is a covered
personnel action.
The appellant did not make a nonfrivolous allegation that her disclosures to the
DOD or DCA IGs were a contributing factor in the issuance of the award or the
three nonselections.
¶14In addition to exhausting remedies with OSC, to establish Board jurisdiction
over an IRA appeal, an appellant must make nonfrivolous allegations that (1) she
made a protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take, or fail to take, or threaten to take, a personnel action as
defined by 5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. Under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to an IG is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law. Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8. As the appellant alleged that she
made disclosures to the DOD and DCA IGs, we find that she nonfrivolously
alleged that she engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(C).
¶15Having determined that the appellant nonfrivolously alleged that she
engaged in a protected activity, we proceed to the question of whether she
nonfrivolously alleged that these protected activities were a contributing factor in
the agency’s personnel actions. To satisfy the contributing criterion, an appellant
only need raise a nonfrivolous allegation that the fact of, or the content of, the8
protected disclosure was one factor that tended to affect the personnel action in
any way. Skarada, 2022 MSPB 17, ¶ 19. One way to establish this criterion is
the knowledge/timing test, under which an employee may nonfrivolously allege
that the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official 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. The Board has held that a
personnel action taken within approximately 1 to 2 years of the appellant’s
disclosures satisfies the knowledge/timing test. Id.
¶16With respect to her IG disclosures, the appellant does not satisfy the
knowledge/timing test. The appellant did not allege, in any submission to the
Board or OSC, that the individuals identified as responsible for the personnel
actions at issue had any knowledge of her contact with the DOD IG or DCA IG.
IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Furthermore, the appellant has not
alleged that either IG investigated her claims or contacted any personnel related
to her disclosures. IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Accordingly, we
find that the appellant does meet the knowledge prong of the
knowledge/timing test.
¶17However, the Board has held that if an appellant has failed to satisfy the
knowledge/timing test, it will consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed towards the
officials taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney v. Department of the Army , 117 M.S.P.R.
480, ¶ 15 (2012). Here, the appellant has not provided any evidence pertaining to
the strength or weakness of the agency’s reasons for taking the personnel actions,
nor has she explained whether the individuals responsible for taking the personnel
actions against her had a desire or motive to retaliate. Furthermore, the appellant9
does not allege that she named her supervisors in her disclosures to the DOD IG
or the DCA IG, or that her whistleblowing was personally directed at them. IAF,
Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Accordingly, we find that the appellant has
failed to nonfrivolously allege that her protected activities, i.e., her disclosures to
the DOD and DCA IGs, were a contributing factor in the agency’s personnel
actions.
The appellant made a nonfrivolous allegation that she made protected disclosures
to her first- and second-line supervisors that were a contributing factor in the
issuance of an unfair award and three nonselections.
¶18The administrative judge found that the appellant failed to nonfrivolously
allege that her disclosures to her first- and second-line supervisors of wrongdoing
by a Federal contractor implicated the Government. ID at 4-5. We disagree and
further find that the appellant established Board jurisdiction because she
nonfrivolously alleged that her protected disclosures were a contributing factor in
the agency’s personnel actions.5
¶19A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Gabel v.
Department of Veterans Affairs , 2023 MSPB 4, ¶ 6. The test to determine
whether a whistleblower has a reasonable belief in the disclosure is an objective
one: whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could reasonably conclude
that the actions of the agency evidence 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. A disclosure of
wrongdoing committed by a non-Federal Government entity may be protected
only when the Government’s interests and good name are implicated in the
5 The statutory definition of a personnel action expressly includes the personnel actions
at issue, i.e., nonselections and awards. 5 U.S.C. § 2302(a)(2)(A)(i)-(ii), (ix). 10
alleged wrongdoing, and the employee shows that she reasonably believed that
the information she disclosed evidenced that wrongdoing. Covington v.
Department of the Interior , 2023 MSPB 5, ¶ 20.
¶20Contrary to the administrative judge’s findings, ID at 3-5, we conclude that
the appellant’s disclosure necessarily implicates agency wrongdoing. The
appellant alleged that she disclosed to her first-line supervisor in February 2020
and her second-line supervisor on April 3, 2020, that the Federal contractor was
fraudulently billing the agency at least $1.275 million annually for work that it
did not perform. IAF, Tab 13 at 4-5. The appellant’s allegations, if true, could
constitute a gross waste of funds, which is defined as a more than debatable
expenditure that is significantly out of proportion to the benefit reasonably
expected to accrue to the Government. See Smith v. Department of the Army ,
80 M.S.P.R. 311, ¶ 8 (1998) (so defining a gross waste of funds). The appellant
alleged that the $1.275 million was a relatively large amount given the small size
of the store.6 IAF, Tab 13 at 5. She further alleged that an acting Store
Director’s lack of oversight permitted the fraudulent overcharging. Id. at 4, 9.
While lacking in detail, we find that the allegations are sufficient to suggest that
the Government enabled a contractor to charge for services that the Government
did not receive and thus that the payment for these services was disproportionate
to the benefit accrued. Therefore, the appellant nonfrivolously alleged that she
made a protected disclosure.
¶21We also find that the appellant nonfrivolously alleged that these protected
disclosures were a contributing factor in the issuance of the “unfair” award and
the three nonselections, because the appellant made the protected disclosures to
her first- and second-line supervisors, i.e., the individuals responsible for the
6 The Board does not require, as a basis for its jurisdiction, that an appellant in an IRA
appeal correctly label a category of wrongdoing. El v. Department of Commerce ,
123 M.S.P.R. 76, ¶ 11 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Therefore, we
need not consider here whether the appellant’s allegations might constitute another
category of wrongdoing, such as gross mismanagement. The administrative judge
should consider this issue on remand at the merits stage of this appeal.11
personnel actions, and the personnel actions occurred within 1 to 2 years of her
protected disclosures. See Skarada, 2022 MSPB 17, ¶ 19 (finding that an
appellant satisfies the contributing factor standard if she meets the
knowledge/timing test).
The appellant made a nonfrivolous allegation of Board jurisdiction and is entitled
to a hearing.
¶22In conclusion, we find that the appellant nonfrivolously alleged that she
made protected disclosures that were a contributing factor in certain personnel
actions. Therefore, the appellant has established Board jurisdiction over her
appeal, and she is entitled to a hearing on the merits. Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant is
entitled to a hearing on the merits once she establishes Board jurisdiction over her
IRA appeal). On remand, the administrative judge shall schedule the hearing the
appellant requested and afford her an opportunity to prove by preponderant
evidence that she made protected disclosures to her first- and second-line
supervisors that were a contributing factor in the issuance of the unfair award and
the three nonselections. IAF, Tab 1 at 2; see Skarada, 2022 MSPB 17, ¶ 22
(explaining that, when reviewing the merits of an IRA appeal, the Board must
determine whether the appellant established by preponderant evidence that he
made a protected disclosure that was a contributing factor in the agency’s
personnel action). If the administrative judge finds that the appellant proved her
prima face case of whistleblower reprisal, the administrative judge must then
determine whether the agency has proved by clear and convincing evidence that it
would have taken the same personnel actions notwithstanding the appellant’s
protected disclosures. See Turner v. Department of Agriculture , 2023 MSPB 25,
¶ 12 (explaining that if an appellant proves that a protected disclosure or activity
was a contributing factor in a personnel action by preponderant evidence, the
agency is given an opportunity to prove by clear and convincing evidence that it12
would have taken the same personnel action absent the protected disclosure or
activity).
ORDER
¶23For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Walker_Debbie__L_NY-1221-22-0167-W-1__Remand_Order.pdf | 2024-02-14 | DEBBIE LOU WALKER v. DEPARTMENT OF DEFENSE, MSPB Docket No. NY-1221-22-0167-W-1, February 14, 2024 | NY-1221-22-0167-W-1 | NP |
2,346 | https://www.mspb.gov/decisions/nonprecedential/Parchman_Terry_D_SF-0752-18-0669-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY D. PARCHMAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0669-I-1
DATE: February 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Larry J. Stein , Esquire, and Rosa M. Koppel , Esquire, Fairfax, Virginia, for
the appellant.
Jennifer Kehe , Esquire, APO, APO/FPO Pacific, 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 constructive removal. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant was not constructively removed based on
misinformation, we AFFIRM the initial decision.
BACKGROUND
The appellant is a retired U.S. Marine Corps major. Initial Appeal File
(IAF), Tab 6 at 34, 75. On February 13, 2016, the agency appointed him to the
excepted service position of Junior Reserve Officer Training Corps (JROTC)
Senior Marine Instructor at Matthew C. Perry High School in Japan. IAF, Tab 6
at 34, Tab 20 at 14. As Senior Marine Instructor, the appellant was responsible
for all aspects of Perry High School’s JROTC program, including classroom
instruction, administrative functions, outreach, and extracurricular activities.
IAF, Tab 6 at 135. He was assisted in his duties by a junior Marine Instructor, a
retired master sergeant. IAF, Tab 4 at 173-74, Tab 6 at 37, 135. The appellant’s
first-level supervisor was the principal of the high school, and his second-level
supervisor was the Marine Corps JROTC Regional Director, stationed in
Quantico, Virginia. IAF, Tab 5 at 16. Around the end of the 2016 -2017 school
year, on June 9, 2017, the appellant submitted a letter of resignation, stating that
he was resigning his position effective June 16, 2017, in order to relocate to be2
with his wife and attend graduate school. IAF, Tab 4 at 105, Tab 6 at 90. The
agency effected the appellant’s resignation accordingly.2 IAF, Tab 5 at 25.
On October 17, 2017, the appellant filed a formal equal employment
opportunity (EEO) complaint, claiming that his resignation was involuntary
because of intolerable working conditions based on race discrimination and
reprisal for engaging in EEO activity. Id. at 13-15. On May 23, 2018, the agency
issued a final decision finding no discrimination. Id. at 15-23. The appellant
then filed the instant Board appeal, asserting a constructive removal claim based
on intolerable working conditions, and arguing that the agency’s actions were
motivated by race discrimination and retaliation for EEO activity.3 IAF, Tab 1
at 3, 5. He did not request a hearing. Id. at 2.
After the close of the record, the administrative judge issued an initial
decision finding that the appellant established a constructive removal claim
within the Board’s jurisdiction and reversing the agency’s action. IAF, Tab 21,
Initial Decision (ID) at 1, 6-15, 18. Nevertheless, he found that the appellant
failed to prove his claims of discrimination and retaliation. ID at 15-18.
The agency has filed a petition for review, challenging the administrative
judge’s fact findings and credibility determinations with respect to the
voluntariness of the appellant’s resignation.4 Petition for Review (PFR) File,
Tab 1. The appellant has filed a response in opposition to the petition for review,
2 The administrative judge found that, at the time of his resignation, the appellant was
an employee with chapter 75 appeal rights under 5 U.S.C. § 7511(a)(1)(B)(1). IAF,
Tab 17 at 1. This finding is supported by the record, IAF, Tab 5 at 25, Tab 20 at 14,
and the agency does not dispute it.
3 There was a question regarding the timeliness of the appeal. IAF, Tab 1 at 3, Tab 7;
see 5 C.F.R. § 1201.154(b). The administrative judge ultimately found that the appeal
was untimely by 1 day, but he waived the filing deadline for good cause shown. IAF,
Tab 21 at 3-6; see 5 C.F.R. § 1201.22(c). The agency has not challenged the
administrative judge’s analysis of this issue, and we see no reason to disturb it.
4 The administrative judge ordered interim relief in this appeal. ID at 19-20. The
agency has certified compliance with the interim relief order as required by 5 C.F.R.
§ 1201.116(a), and the appellant has not challenged the agency’s certification.3
and the agency has filed a reply to the appellant’s response. PFR File, Tabs 5, 8.
The appellant has also moved for leave to file additional evidence concerning an
EEO complaint filed by the Perry High School assistant principal. PFR File,
Tab 6. The agency opposes the appellant’s motion. PFR File, Tab 9.
ANALYSIS
Employee-initiated actions are presumed to be voluntary, and the Board
lacks jurisdiction over voluntary actions. Polen v. Department of Defense ,
72 M.S.P.R. 1, 5 (1996). However, employee-initiated actions that appear
voluntary on their face are not always so, and the Board may have jurisdiction
over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013). All constructive
adverse actions have two things in common: (1) the employee lacked a
meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
deprived the employee of that choice. Assuming that the jurisdictional
requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things
is sufficient to establish Board jurisdiction. Id., ¶ 8.
In this case, the administrative judge found that the appellant’s resignation
was involuntary for two independent reasons, namely the appellant’s assistant
Marine Instructor created intolerable working conditions that the agency refused
to correct, and the principal’s secretary misinformed the appellant that he could
not go on leave without pay (LWOP) to attend graduate school and move in with
his wife. ID at 6-15. Intolerable working conditions and misinformation are two
recognized bases for finding a constructive adverse action. Salazar v.
Department of the Army , 115 M.S.P.R. 296, ¶ 12 (2010); Heining v. General
Services Administration , 68 M.S.P.R. 513, 520 (1995). We address both theories
of the case, beginning with intolerable working conditions.
In his initial decision, the administrative judge found that, throughout the
appellant’s tenure as Senior Marine Instructor, the assistant Marine Instructor4
rendered his working conditions intolerable, and the agency failed to remedy the
situation despite the appellant’s requests. ID at 7-13. He found that both the
principal and the Regional Director notified the appellant that he would be fired
and not recertified if he and the Marine Instructor could not resolve their
differences without management assistance. Id. After receiving a performance
appraisal that contained a negative remark about his relationship with the Marine
Instructor, the appellant informed the principal of his intent to resign, and he felt
that the principal then hurried him to tender his resignation. ID at 9; IAF, Tab 20
at 83-84. The appellant acknowledged that his resignation letter did not mention
intolerable working conditions, but he stated that this was because his union
representative advised him against it. ID at 9-10. In addition to the appellant’s
account of things, the administrative judge considered declarations and other
statements from the Marine Instructor, the principal, the assistant principal, and
the Regional Director, all of which corroborated the appellant’s account to
varying degrees. ID at 10-12.
Considering the evidence as a whole, the administrative judge found that
the appellant’s working conditions were so difficult that a reasonable person in
his position would have felt compelled to resign. ID at 12. He further found that
the principal failed to address the situation adequately because he sought to
discipline both the Marine Instructor and the appellant even though he failed to
identify anything that the appellant did wrong. ID at 13.
On petition for review, the agency contests the administrative judge’s
analysis on several fronts, beginning with his credibility determinations. PFR
File, Tab 1 at 13-18. We have considered the agency’s arguments, but in light of
the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987), we find insufficient basis to discount any of the material statements
made by the appellant, the assistant principal, or the Regional Director. In any
event, witness credibility is not a major issue in this case. Having reviewed the
appellant’s notes, the witness declarations, and the EEO interview summaries, we5
find that the factual statements from all of the witnesses are generally consistent
with one another. IAF, Tab 4 at 43-46, 162-85, Tab 6 at 81-90. The most notable
exception is the Marine Instructor, who acknowledged his difficult relationship
with the appellant but downplayed its seriousness and contended that these
difficulties were the appellant’s fault. IAF, Tab 4 at 45, 173-75. However, we
find that the weight of the evidence shows that the Marine Instructor was chiefly,
if not solely, to blame for these problems; all of the other witnesses agreed that
the appellant was supposed to be in charge, but that the Marine Instructor refused
to defer to him and refused to work on making the situation better.5 Id. at 44-46.
Turning to the agency’s arguments about the merits of the case, it argues
that the principal did, in fact, take steps to address the appellant’s concerns about
his relationship with the Marine Instructor. PFR File, Tab 1 at 18-19, 23. We
agree. The record shows that the principal met with or attempted to meet several
times with the appellant and the Marine Instructor to work on their professional
relationship. IAF, Tab 6 at 85, 88-89. However, the record also shows that these
meetings were ineffective. The first meeting occurred on September 30, 2016,
between the appellant, the principal, the assistant principal, and the Marine
Instructor. Id. at 85. The meeting was tense, but the appellant and the Marine
Instructor had lunch together and talked cooperatively afterwards. Id. This
cooperation did not last, and on January 26, 2017, the principal called another
meeting between himself, the appellant, the Marine Instructor, and a union
representative. Id. at 88. The Marine Instructor failed to appear at the meeting,
and the principal appeared to be “agitated” by this, but there is no indication that
he did anything about it. Id. Instead, he informed the appellant that both his and
the Marine Instructor’s jobs were on the line if they could not figure out how to
get along. Id. The next meeting was scheduled for February 13, 2017, between
the principal, the appellant, the union representative, the Marine Instructor, and
5 The principal opined that the appellant and the Marine Instructor were equally
culpable for their contentious relationship, but he offered no factual basis to support his
opinion. IAF, Tab 4 at 168. 6
the Regional Director. Id. The Marine Instructor again failed to appear, stating
that he desired legal representation.6 Id. There is no evidence that either the
principal or the Regional Director did anything to address this act of
insubordination. Finally, there was a meeting on March 22, 2017, between the
principal, the assistant principal, the appellant, the Marine Instructor, and a union
representative. Id. at 89. It is not exactly clear what transpired at the meeting,
but the record shows that the appellant and the Marine Instructor got along and
communicated well for at least the next couple of days. Id. The agency attempts
to put a positive spin on this series of meetings, PFR File, Tab 1 at 18-19, but we
find that they highlight the principal’s failure to take decisive action to improve
the appellant’s working conditions.
The agency also faults the administrative judge for considering in his
voluntariness analysis the appellant’s June 15 and 16, 2017 meetings with the
principal concerning his annual performance appraisal because these matters
occurred after the appellant tendered his resignation on June 9, 2017. PFR File,
Tab 1 at 20; ID at 9. We disagree. Although the appellant tendered his
resignation letter on June 9, 2017, he specified that his final day of work would
be June 16, 2017. IAF, Tab 4 at 105. It is well settled that, absent a “valid
reason” such as detrimental reliance by the agency, an employee may withdraw
his resignation at any time up until its effective date. Gibson-Meyers v. Veterans
Administration, 13 M.S.P.R. 363, 364 (1982); 5 C.F.R. § 715.202(b). Therefore,
6 The appellant was covered by a collective bargaining agreement, so it seems likely
that the Marine Instructor was as well. IAF, Tab 5 at 11. Nevertheless, there is no
indication that this meeting was investigatory in nature, and it therefore does not appear
that the Marine Instructor would have been entitled to union representation under
5 U.S.C. § 7114(a)(2)(B). The right of representation arises when a significant purpose
of the interview is to obtain facts to support disciplinary action that is probable or that
is being seriously considered. When a meeting is nothing more than a pure counseling
session and remedial in nature, without the requisite investigatory element, it does not
qualify as an “examination of an employee . . . in connection with an investigation.”
U.S. Department of the Treasury, Internal Revenue Service , 8 FLRA 324, 330 (1982).
Moreover, it appears that there was, in fact, an appropriate union representative present
at the meeting. IAF, Tab 6 at 88.7
although the appellant tendered his resignation on June 9, he presumably could
have changed his mind had the performance meetings of June 15 and 16 gone
differently. However, these meetings only confirmed to the appellant that the
principal continued to blame him for his problems with the Marine Instructor.
IAF, Tab 20 at 83-84.
Regarding the appellant’s working conditions themselves, the agency
argues that they were not so difficult that a reasonable person in his position
would have felt compelled to resign. PFR File, Tab 1 at 20-23. In this regard, it
argues that the appellant’s relationship with the Marine Instructor had actually
improved by the time of his resignation. It asserts that the last negative
interaction recorded in the appellant’s notes was on January 25, 2017, which was
nearly 5 months before the appellant resigned. PFR File, Tab 1 at 23; IAF, Tab 6
at 88. This is inaccurate. Entries from January 26, February 13, March 15, and
March 20, 2017, reflect further negative interactions with the Marine Instructor.
IAF, Tab 4 at 88. Furthermore, it appears that other ongoing issues continued
throughout the relevant time period unabated. Id. at 45. It does appear that the
appellant’s relationship with the Marine Instructor became less volatile after
January 2017, and we agree with the agency that this might tend to undercut the
appellant’s allegations of involuntary resignation in June. See Miller v.
Department of Defense , 85 M.S.P.R. 310, ¶ 10 (2000) (finding that circumstances
immediately prior to the date of the resignation are most relevant in determining
the issue of voluntariness). Nevertheless, the Board takes a totality of the
circumstances approach to this issue, Lentz v. Merit Systems Protection Board ,
876 F.3d 1380, 1384-86 (2017), and under the particular circumstances of this
case, we find it appropriate to consider the fact that the end of the school year
was a more suitable time for the appellant to tender his resignation than at the
height of his contention with the Marine Instructor several months prior, see
Heining, 68 M.S.P.R. at 521 (finding that the issue of whether a resignation was
involuntary depends on the circumstances of each individual case). We will not8
penalize the appellant for persevering to see through his commitment for the
2016-2017 school year. Moreover, the record shows that immediately prior to his
resignation, the appellant received confirmation from both the principal and the
Regional Director that they would not support him in asserting his leadership role
the following year. IAF, Tab 4 at 46, Tab 6 at 89-90, Tab 20 at 83. Considering
the totality of the circumstances, we find that the timing of the appellant’s
resignation is consistent with his claim of involuntariness.
The agency further argues that the appellant’s working conditions, although
perhaps unpleasant, were not so difficult that a reasonable person in his position
would have felt compelled to resign. It argues that the appellant and the Marine
Instructor had “issues” working with one another, but the incidents cited by the
administrative judge do not constitute intolerable working conditions under an
objective standard. PFR File, Tab 1 at 21; see Staats v U.S. Postal Service ,
99 F.3d 1120, 1124 (Fed. Cir. 1996) (“The test for involuntariness is objective.”).
We disagree. The record in this appeal is clear that, as the Senior Marine
Instructor, the appellant was in charge of the Perry High School JROTC program,
and the Marine Instructor was supposed to work for him. IAF, Tab 4 at 43, 46,
143. Although the record is insufficient for us to determine whether the appellant
could be considered the Marine Instructor’s “supervisor” as that term is
commonly used, see generally 5 U.S.C. § 7103(a)(10) (defining the term
“supervisor” for purposes of the Federal Labor Relations Act), it is undisputed
that the appellant was responsible for taking the lead in JROTC matters. IAF,
Tab 4 at 143. But it does not appear that the appellant had any actual authority to
discipline the Marine Instructor; had he any such authority, we have little doubt
that he would have exercised it. Rather, we find that the appellant was in the
untenable position of having to depend on his own superiors, who were entirely
indifferent to the appellant and his leadership responsibilities, to exert the
authority necessary to bring the Marine Instructor into line. Rather than backing
the appellant up in any meaningful way, they sought to discipline him for his9
“inability to get along” with a subordinate who bucked his authority at every turn.
IAF, Tab 4 at 44, 46, 168.
The Board has long stressed the importance that proper respect and
deference to supervisors has in the Federal workplace:
Insolent disrespect toward supervisors so seriously undermines
the capacity of management to maintain employee efficiency and
discipline that no agency should be expected to exercise
forbearance for such conduct more than once. To expect
management to tolerate appellant’s repeated insolent behavior
would make a mockery of management’s authority and
supervisory responsibility; few other types of misconduct go so
directly to the heart of maintaining the “efficiency of the service.”
Jefferson v. Veterans Administration , 6 M.S.P.R. 348, 352 (1981). Clearly
though, the agency in this case expected the appellant to tolerate the Marine
Instructor’s insolent disrespect and insubordination indefinitely. The appellant
himself was powerless to do anything about it, and the only individuals who
could do anything about it did not want to be bothered, to the point where the
principal threatened to terminate the appellant if he continued seeking help from
him, and the Regional Director recommended that both the appellant and the
Marine Instructor be “let go” and decertified without differentiation.7 IAF, Tab 4
at 44, 46, Tab 6 at 89. It bears repeating that the agency failed to identify
anything that the appellant did that would warrant discipline. ID at 13. In sum,
the appellant was attempting to manage a JROTC program and maintain a military
bearing and air of authority while being actively undermined in front of the
students, parents, and staff by the Marine Instructor who was supposed to be there
to help him. We do not see how the appellant could possibly be expected to
7 We acknowledge that the appellant may not have sought all potential forms of redress
before resigning. For example, it appears that he could have but declined to file a
grievance. IAF, Tab 5 at 11. However, considering the appellant’s lack of employee
status during most of the period at issue, along with the principal’s threats to fire him if
he did not address his working conditions on his own, we find that it would still not
have been unreasonable for the appellant to conclude that resignation was the only
realistic alternative to his intolerable working conditions. See Heining v. General
Services Administration , 61 M.S.P.R. 539, 554 (1994).10
perform under these conditions. We find that, this appeal is more akin to Bates v.
Department of Justice , 70 M.S.P.R. 659, 667 -71 (2000), in which the Board found
that the appellant’s resignation was involuntary because she was receiving daily
harassment that directly interfered with her ability to do her job.
The agency also argues that the real reason for the appellant’s resignation
was his desire to relocate and be with his wife. PFR File, Tab 1 at 23-24, 26. In
support of its argument, the agency cites various documents from June 2017, in
which the appellant stated that he was resigning to relocate with his wife. PFR
File, Tab 1 at 23-24; IAF, Tab 4 at 105, 111, 147, 151-52. However, this
evidence must be weighed against the appellant’s discussion with the Regional
Director in May 2017, that his working conditions were bad and he was ready to
resign if nothing was done about the Marine Instructor, as well as an email that
the appellant sent to the Regional Director in June 2017, stating that his working
conditions had made continued employment intolerable. IAF, Tab 4 at 46, 184.
The appellant attributes this conflicting evidence to advice that he received not to
end his employment amid a flurry of complaints. IAF, Tab 4 at 163, Tab 16. We
find that the appellant’s explanation is entirely plausible, and that the agency has
not offered a more plausible explanation to resolve this discrepancy. We
therefore credit the appellant’s statement that he resigned due to his working
conditions and not due to his desire to relocate. The fact that an employee makes
plans for the future before resigning his position does not rebut his statements
about the reasons for his resignation. See Bates, 70 M.S.P.R. at 671.
For the reasons discussed above, we agree with the administrative judge
that the appellant proved by preponderant evidence that he lacked a meaningful
choice in his resignation and that it was the agency’s wrongful actions that
deprived him of that choice. See Bean, 120 M.S.P.R. 397, ¶ 8. The appellant’s
working conditions were intolerable, and the agency knew about them but did
nothing to help. See Peoples v. Department of the Navy , 83 M.S.P.R. 216, ¶¶ 7-8
(1999). Worse than that, the agency threatened to separate the appellant from11
service if he continued to seek help rather than resolve the problem on his own,
which as a practical matter he lacked the authority to do. We therefore agree with
the administrative judge that the appellant was constructively removed as a result
of intolerable working conditions. ID at 6-13.
We disagree, however, with the administrative judge’s alternative finding
that the appellant’s resignation was involuntary due to misinformation. ID
at 13-15. A resignation may be tantamount to a constructive removal if the
agency made misleading statements upon which the employee reasonably relied to
his detriment. Scharf v. Department of the Air Force , 710 F.2d 1572, 1574 -75
(Fed. Cir. 1983). In this case, the administrative judge found, and it appears to be
undisputed, that the appellant approached the principal’s secretary to inquire
about the possibility of taking LWOP to accompany his civilian employee spouse
and attend graduate school, but the secretary told him that he was not entitled to
LWOP. ID at 13-14; IAF, Tab 4 at 98, 163. It also appears to be undisputed that
the secretary’s advice was incorrect; Department of Defense Dependents Schools
Regulation 5630.4 specifically provides that extended LWOP may be granted, at
management’s discretion, both for education and for accompanying a Government
employee spouse to a new duty location. ID at 14; IAF, Tab 20 at 77. Finally, it
appears to be undisputed that the appellant would have taken extended LWOP
rather than resign had the secretary not told him that he was ineligible for
LWOP.8 ID at 14-15.
Nevertheless, the agency argues that the appellant’s reliance on the
secretary’s advice was not reasonable. PFR File, Tab 1 at 25-26. We agree. See
Lovings v. Department of the Army , 28 M.S.P.R. 5, 6 (1984) (finding that the
appellant’s reliance on her supervisor’s advice to accept a demotion and
8 We do not purport to find that the appellant would have been granted LWOP had he
requested it through proper channels. Extended LWOP for the reasons that the
appellant was seeking it is at management’s discretion. IAF, Tab 20 at 77. However,
under the facts of this case, whether management would have granted the appellant’s
request is immaterial to whether the agency constructively removed him through
misleading information.12
challenge it later was unreasonable under the circumstances). The appellant knew
or should have known that the principal’s secretary was not his supervisor or
manager, and that she was not responsible for acting on his leave requests. A
reasonable person in his position would not have accepted the secretary’s
unsubstantiated opinion as the final word on the matter but would instead have
directed his inquiries to his supervisors or to a human resources official.
The appellant argues on review that, for various reasons, he acted
reasonably by accepting the secretary’s word that he was ineligible for LWOP.
PFR File, Tab 5 at 19-20. We have considered the appellant’s arguments, but we
find no evidence that the principal’s secretary was authorized to act on leave
requests, or that the appellant was prevented from communicating directly with
the principal or some other official who had such authority. The appellant has
moved for leave to submit an agency final decision in the assistant principal’s
EEO case for the purpose of showing that that the principal communicated
through the secretary, particularly with regard to administrative matters. PFR
File, Tab 6. Having reviewed the appellant’s proffer, we deny the motion. Even
assuming that this evidence was previously unavailable despite the appellant’s
due diligence, we find that it would not be material to the outcome of the appeal.
The fact that the principal frequently communicated through his secretary does
not establish that the appellant’s reliance on her mistaken advice was reasonable.
Nevertheless, despite the appellant’s failure to prove constructive removal
based on misinformation, he still proved constructive removal based on
intolerable working conditions. Supra pp. 11-12. This action must be reversed
for lack of due process. See Drummonds v. Department of Veterans Affairs ,
58 M.S.P.R. 579, 584-85 (1993). Because the appellant has not challenged the
administrative judge’s analysis of his discrimination and reprisal claims, we will
not revisit them here. See 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for
review.”).13
ORDER
We ORDER the agency to cancel the appellant’s resignation and to restore
the appellant effective June 16, 2017. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision14
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you
believe you meet these requirements, you must file a motion for attorney fees and
costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion for attorney fees and costs with the office that issued the
initial decision on your appeal.
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
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.15
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
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. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.19
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. | Parchman_Terry_D_SF-0752-18-0669-I-1 Final Order.pdf | 2024-02-14 | TERRY D. PARCHMAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0669-I-1, February 14, 2024 | SF-0752-18-0669-I-1 | NP |
2,347 | https://www.mspb.gov/decisions/nonprecedential/Banks_Phyllis_SF-0353-19-0387-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHYLLIS E. BANKS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-19-0387-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
O
svaldo Quintana , Los Angeles, California, for the appellant.
Deborah C. Winslow , 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 for lack of jurisdiction her appeal seeking review of the agency’s
decision to remove her, the agency’s failure to restore her to her position, and a
negative suitability determination. On petition for review, the appellant reiterates
her arguments from below, asserting, among other things, that she was a covered
employee under chapter 75, that the Board has jurisdiction over her restoration
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
claim because the agency was aware that she suffered an on -the-job injury, that
the agency discriminated against her due to her age and disability, and that the
agency refused to place her in or search for an appropriate position to
accommodate her medical restrictions. 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.
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).
Below, the administrative judge issued a jurisdictional order informing the
appellant how to establish the Board’s jurisdiction over the removal of U.S.
Postal Service employees and restoration claims. Initial Appeal File (IAF), Tab 3
at 2-10. The order did not provide the appellant with notice of how to establish
the Board’s jurisdiction over a negative suitability determination claim or how to
prove her affirmative defense of age discrimination. Id. To the extent this
2 In her petition for review, the appellant requests a hearing. PFR File, Tab 1 at 3. It is
not clear if she is arguing that the administrative judge erred in denying her a hearing
below or if she is seeking a hearing on review. Id. To the extent she is arguing that the
administrative judge erred, an appellant is not entitled to a hearing absent a
nonfrivolous allegation of jurisdiction. Cf. Rivera v. Department of the Navy ,
114 M.S.P.R. 52, ¶ 6 (2010). To the extent she is seeking a hearing on review, the
Board’s regulations do not provide for such proceedings. 2
constitutes error, see Burgess v. Merit Systems Protection Board , 758 F.2d 641,
643-44 (Fed. Cir. 1985) (providing that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue),
we find that such error was cured with respect to the negative suitability
determination claim and that any error with respect to the appellant’s age
discrimination claim is harmless.
Regarding the suitability claim, the administrative judge concluded that the
appellant’s indication on her appeal form that she was appealing a negative
suitability determination, IAF, Tab 1 at 4, was merely her characterization of the
agency’s decision to remove her, IAF, Tab 6, Initial Decision (ID) at 7. We
agree. There is no evidence in the record that the appellant received a negative
suitability determination or that she made an actual claim before the Board on
that basis, and she does not raise it on review. Nonetheless, the administrative
judge provided further information concerning the Board’s jurisdiction over
negative suitability determinations in the initial decision, thereby curing any error
in omitting it in her jurisdictional order. ID at 7; see Parker v. Department of
Housing and Urban Development , 106 M.S.P.R. 329, ¶ 8 (2007). Regarding the
age discrimination claim, we find that the appellant’s rights were not prejudiced
by not receiving notice of how to prove this claim because she failed to establish
jurisdiction over an otherwise appealable action, and the Board would therefore
ultimately lack jurisdiction over an age discrimination claim. See Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (stating that, absent an otherwise
appealable action, the Board lacked jurisdiction to consider the appellant’s claims
of age and disability discrimination); Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
Additionally, the appellant asserts for the first time on review that, in
addition to age discrimination, the agency also engaged in disability3
discrimination.3 PFR File, Tabs 1, 4. The Board will generally not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available despite the party’s due
diligence. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). Regardless of whether the appellant can make such a showing, the Board
nonetheless lacks jurisdiction over such discrimination claims absent an
otherwise appealable action. See Penna, 118 M.S.P.R. 355, ¶ 13.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Following the close of the record on review, the appellant submitted a reply to the
agency’s response to her petition for review and, another 5 months later, a motion for
leave to file an additional pleading. PFR File, Tabs 4, 7. Regarding the reply, the
Board’s regulations provide that a reply to a response to a petition for review must be
filed within 10 days of the date of service of the response. 5 C.F.R. § 1201.114(e). The
Office of the Clerk of the Board informed the appellant of the appropriate deadlines in
an acknowledgment letter. PFR File, Tab 2. Here, the agency submitted its response on
August 2, 2019, and the appellant submitted her reply on September 3, 2019, thereby
making it untimely by 22 days. PFR File, Tabs 3-4. Even considering this untimely
reply, however, we find that the appellant has still failed to provide a basis to disturb
the initial decision. Regarding the motion for leave to file an additional pleading, the
appellant requests leave to submit evidence regarding a class action lawsuit against the
agency. PFR File, Tab 7 at 5. She has not explained, however, how this evidence
affects the question of whether the Board has jurisdiction over her appeal. Accordingly,
the motion is denied. See 5 C.F.R. §§ 1201.114(k), 1201.115(d).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Banks_Phyllis_SF-0353-19-0387-I-1_Final_Order.pdf | 2024-02-13 | PHYLLIS E. BANKS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-19-0387-I-1, February 13, 2024 | SF-0353-19-0387-I-1 | NP |
2,348 | https://www.mspb.gov/decisions/nonprecedential/Lee_Roberta_M_AT-0353-19-0679-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTA M. LEE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-19-0679-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
oberta M. Lee , Jonesboro, Georgia, pro se.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Department of Labor’s Office of Workers’
Compensation Program’s (OWCP) July 8, 2019 decision to terminate her
compensation benefits. On petition for review, she claims that the OWCP
decision was reversed. Petition for Review (PFR) File, Tab 2 at 2-3. She also
argues that the agency failed to accommodate her medical limitations 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).
harassed her and retaliated against her due to prior equal employment opportunity
(EEO) activity. Id. at 2-3. She also submits several documents with her petition
for review. Id. at 7-46. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the Board lacks jurisdiction
to review a denial of OWCP benefits. Initial Appeal File (IAF), Tab 8, Initial
Decision (ID) at 2-3; see Clavin v. U.S. Postal Service , 99 M.S.P.R. 619, ¶ 4
(2005). He also appropriately construed the appellant’s claim that the agency’s
offer of a modified position failed to abide by her physician’s recommendations
as a claim of a denial of restoration. ID at 3-6. He found that the Board was
bound by OWCP’s determination that the offered modified position was suitable.
ID at 5-6. The appellant reasserts her claim on review that the position was not
suitable and failed to meet her medical limitations. PFR File, Tab 2 at 2-5.
We agree with the administrative judge that the Board is bound by OWCP’s
determination that the offered modified position was suitable. See Paszko v. U.S.
Postal Service, 119 M.S.P.R. 207, ¶ 12 (2013). Regarding the appellant’s claim
that the July 8, 2019 OWCP decision at issue in this appeal was reversed, that2
claim is not supported by the record. PFR File, Tab 2 at 2-3, 8-10. The alleged
reversal decision cited by the appellant is dated January 24, 2019—more than
5 months before the OWCP decision at issue here—and states that it is reversing
a May 16, 2018 decision. Id. at 8-10. Thus, the assertion that the July 8, 2019
OWCP decision was reversed is incorrect.
The appellant also argued below and again on review that the agency
harassed her and retaliated against her due to her EEO activity. IAF, Tab 1 at 5;
PFR File, Tab 2 at 1-2. The administrative judge does not appear to have
addressed this claim, but the Board cannot consider claims of discrimination or
retaliation absent an otherwise appealable action. See Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012); Metzenbaum v. General Services
Administration, 83 M.S.P.R. 243, ¶ 8 (1999). Additionally, in Cronin v. U.S.
Postal Service, 2022 MSPB 13, ¶ 21, we clarified that claims of discrimination or
reprisal for protected activity may not serve as an independent means of showing
that a denial of restoration was arbitrary and capricious for the purposes of
5 C.F.R. § 353.304(c). To the extent the administrative judge’s failure to
consider the appellant’s EEO claim constitutes error, such an error has not
prejudiced the appellant’s substantive rights and does not provide a basis for
reversal of the initial decision. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984).
The appellant also submits several documents with her petition for review.
PFR File, Tab 2 at 7-44. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record closed below despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
It appears that the majority of the documents submitted by the appellant predate
the close of the record below. PFR File, Tab 2 at 7-44. She claims that she did
not submit the documents because she “thought [she] had enough evidence to
show discrimination and the wrongdoing” on the part of the agency. Id. at 1.3
This argument is not sufficient to establish that the appellant was diligent in
submitting the documents, and therefore, we have not considered them. See
Fox v. U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The only documents
that appear to postdate the close of record below are personal electric and water
bills showing that the appellant has been unable to make her payments. PFR File,
Tab 2 at 45-46. She has failed to show, however, that these documents are
material to her claim or are of sufficient weight to warrant a different outcome
different from that of the initial decision. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980).
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.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Lee_Roberta_M_AT-0353-19-0679-I-1_Final_Order.pdf | 2024-02-13 | ROBERTA M. LEE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-19-0679-I-1, February 13, 2024 | AT-0353-19-0679-I-1 | NP |
2,349 | https://www.mspb.gov/decisions/nonprecedential/White_Lawrence_DC-0831-21-0247-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE WHITE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-21-0247-I-2
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence White , Mount Rainier, Maryland, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the final decision of the Office of Personnel Management (OPM)
calculating the appellant’s retirement annuity under the Civil Service Retirement
System. On petition for review, the appellant argues, among other things, that
OPM owes him excess retirement deductions, he received only a partial refund 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).
his retirement deductions in 1979, and OPM erred in applying the Social Security
offset which reduced his annuity. Generally, we grant petitions such as 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
2 With his petition for review, the appellant files a number of documents, including a
National Personnel Records Center reply to inquiry form, an illegible Notification of
Personnel Action form, a FAQ sheet regarding the Treasury Offset Program,
information sheets on leave without pay and its impact on benefits, and a title page from
a hearing before the House of Representatives. Petition for Review File, Tab 1
at 18-25. The appellant has not shown that these documents were unavailable prior to
the close of the record below and has not explained the relevance of these documents to
the dispositive issues in his appeal. Thus, they provide no basis to disturb the initial
decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that,
the Board will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision).
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 | White_Lawrence_DC-0831-21-0247-I-2 Final Order.pdf | 2024-02-13 | LAWRENCE WHITE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-21-0247-I-2, February 13, 2024 | DC-0831-21-0247-I-2 | NP |
2,350 | https://www.mspb.gov/decisions/nonprecedential/Masey_Denia_M_DC-0831-19-0380-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENIA M. MASEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-19-0380-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan Andrew Masey , Preston, England, for the appellant.
Jane Bancroft , 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 appeal of the final decision issued by the Office of Personnel
Management denying her application for deferred retirement. On petition for
review, the appellant reiterates her argument that she never received the refund of
her retirement contributions that she requested in 1981. She also argues for the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
first time on review that her medical condition at the time may explain her failure
to follow up on a letter from her employing agency instructing her to reapply for
the refund if she had not yet received it.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).
2 In her petition for review, the appellant submitted a motion to file a supplement
concerning her argument that her medical condition between August and October 1982
may explain her failure to respond to her employing agency’s October 1982 letter
inquiring whether she had received the refund of retirement contributions that she had
requested from the Office of Personnel Management. Petition for Review (PFR) File,
Tab 1 at 5, 8-9. The Acting Clerk of the Board granted the appellant’s motion and the
appellant filed a supplement to her petition for review containing medical records from
1982. PFR File, Tab 2 at 1, Tab 5 at 4-7. She also filed additional evidence with her
petition for review, all of which either dates from, or concerns events that occurred long
before the close of the record below. PFR File, Tab 1 at 10-17. 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). Additionally, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant does not establish that
any of the evidence she submits on review was unavailable to her, despite her due
diligence, before the close of the record. Moreover, our review of the evidence reveals
that it provides no basis to upset the initial decision. 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Masey_Denia_M_DC-0831-19-0380-I-1 Final Order.pdf | 2024-02-13 | DENIA M. MASEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-19-0380-I-1, February 13, 2024 | DC-0831-19-0380-I-1 | NP |
2,351 | https://www.mspb.gov/decisions/nonprecedential/Marsden_Robert_J_DE-1221-14-0298-W-3 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. MARSDEN,
Appellant,
v.
ENVIRONMENTAL PROTECTION
AGENCY,
Agency.DOCKET NUMBER
DE-1221-14-0298-W-3
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lauren M. Drabic , Esquire, and Robert C. Seldon , Esquire, Washington,
D.C., for the appellant.
Edward O. Sweeney , 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 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 (IRA) appeal.
Generally, we grant petitions such as these only in the following circumstances:
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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. Except as expressly MODIFIED by this Final Order to
clarify and supplement the analysis of the agency’s affirmative defense, we
AFFIRM the initial decision.
BACKGROUND
The appellant was a GS-13 Special Agent for the agency. Marsden v.
Environmental Protection Agency , MSPB Docket No. DE-1221-14-0298-W-1,
Initial Appeal File (IAF), Tab 1 at 1. His permanent duty station was the Denver
Area Office, but during the relevant time period, the appellant was on temporary
assignment in Montana. Hearing Transcript (Tr.), Day 2 at 33, 35, 39-40
(testimony of the appellant). The appellant’s supervisory chain was as follows:
(1) the Denver Special Agent in Charge (SAC); (2) the Criminal Investigation
Division (CID) Deputy Director; (3) the CID Director; and (4) the Director of the
Office of Criminal Enforcement, Forensics, and Training (OCEFT). Tr., Day 1
at 60, 75 (testimony of the appellant); Tr. Day 2 at 23 (testimony of the
Denver SAC).2
Between July 6 and September 1, 2010, the appellant made several
disclosures, stating that CID Director H had violated longstanding agency policy
by allowing two married agents in Montana to work under the same supervisor.
Marsden v. Environmental Protection Agency, MSPB Docket No. DE-1221-14-
0298-W-3, Appeal File (W3-AF), Tab 14 at 51, 55; Tr., Day 1 at 53-57, 62-66,
75-77 (testimony of the appellant). The appellant made these disclosures to the
Denver SAC, the CID Deputy Director, the OCEFT Director, and the CID
Director herself. Tr., Day 1 at 53-57, 62-66, 75-77 (testimony of the appellant).
In or around early September 2010, the agency announced GS-14 Assistant
Special Agent in Charge (ASAC) vacancies in Denver, Colorado, Seattle,
Washington, and Kansas City, Missouri. Tr., Day 2 at 47-48 (testimony of the
Denver SAC). The appellant applied for both the Seattle and Denver positions,
although he was really only interested in Denver. W-3 AF, Tab 14 at 77-99.2
From September 20 through 22, 2010, a five-member panel conducted
interviews.3 Id. at 112-14. The interview panel rated the top three candidates in
the following order— (1) ASAC M, (2) the appellant, and (3) ASAC O. Id.
at 114. On September 23, 2023, the panel unanimously recommended that
ASAC M be selected for Denver and the appellant be selected for Seattle. Id. No
candidate was recommended for Kansas City because the Kansas City SAC
decided that he did not want to fill the position at that time. W-3 AF, Tab 14
at 114.; Tr., Day 2 at 48-49. Therefore, the third-ranking candidate, ASAC O,
was not recommended for any position. The panel forwarded its recommendation
to the CID Director, and she discussed the recommendation with the OCEFT
2 According to the appellant, both the CID and OCEFT Directors told him that he
should apply for positions outside of Denver, and particularly recommended that he
apply for the opening in Seattle. Tr., Day 1 at 77, 84, 181-82 (testimony of the
appellant); Tr., Day 2 at 139 (testimony of the OCEFT Director). Nevertheless, the
appellant testified that the individuals involved in the selection were all aware that he
would prefer the Denver job. Tr., Day 1 at 116, 181 (testimony of the appellant).
3 The interview panel was comprised of SACs and ASACs from various offices. The
Denver SAC was chair of the panel. W-3 AF, Tab 14 at 113-14.3
Director, who was the selecting official. Tr., Day 2 at 92-97 (testimony of the
CID Director), 136 (testimony of the OCEFT Director).
Despite the panel’s recommendation, neither the CID Director nor the
OCEFT Director wanted to reassign ASAC M to Denver because the agency had
just recently assigned him to Chicago, and his departure from that office would
have been expensive and disruptive. Id. at 92-98 (testimony of the CID Director),
136-38 (testimony of the OCFET Director). Therefore, the remaining top two
candidates were the appellant and ASAC O. After considering the matter and
discussing it with the CID Director, the OCEFT Director decided to assign the
appellant to Seattle and ASAC O to Denver. Id. at 103-04 (testimony of the CID
Director).
The CID Director notified the Denver SAC of this determination. Id.
at 58-59 (testimony of the Denver SAC), 101 (testimony of the CID Director).
The Denver SAC adamantly objected to working with ASAC O. She stated that,
with ASAC M out of the picture, her next choice for Denver ASAC would be the
appellant. Id. at 60-62, 66 (testimony of the Denver SAC), 101 (testimony of the
CID Director). The CID Director told the Denver SAC that she would have the
opportunity to express her reservations to the OCEFT Director that afternoon,
before he finalized his decision. Id. at 63 (testimony of the Denver SAC), 101-02
(testimony of the CID Director). However, 45 minutes later, the Denver SAC
received a telephone call from agency headquarters, notifying her that the OCEFT
Director had already made his final decision and had selected the appellant for
Seattle and ASAC O for Denver. Tr., Day 2 at 63-64 (testimony of the Denver
SAC); see W-3 AF, Tab 14 at 115-16.
The appellant filed a complaint with the Office of Special Counsel (OSC),
raising several claims of whistleblower retaliation. IAF, Tab 7 at 4-19. Among
other things, he alleged that the ASAC selection decision was in retaliation for4
his disclosing violations of the agency’s relatives policy.4 IAF, Tab 7 at 4-19.
OSC closed the complaint without taking corrective action, and the appellant filed
an IRA appeal. IAF, Tab 1, Tab 12 at 26.
After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action. W3-AF, Tab 31, Initial Decision
(ID). The administrative judge found that the appellant proved that he made a
protected disclosure that was a contributing factor in the agency’s selection
decision. ID at 5-7. Nevertheless, he found that the agency proved by clear and
convincing evidence that it would have taken the same action even in the absence
of the appellant’s disclosure. ID at 7-9.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis of the agency’s affirmative defense. Petition for Review (PFR)
File, Tab 4. The agency has filed a response in opposition to the appellant’s
petition for review, as well as a cross petition for review challenging the
administrative judge’s analysis of the appellant’s case in chief. PFR File, Tab 6.
The appellant has filed a response to the agency’s cross petition for review. PFR
File, Tab 10.
ANALYSIS
To prevail in an IRA appeal before the Board, an appellant must establish a
prima facie case of whistleblower retaliation by proving by preponderant
evidence that he made a protected disclosure that was a contributing factor in a
personnel action taken against him.5 5 U.S.C. § 1221(e)(1) (2011); Scoggins v.
4 Although the appellant’s OSC complaint raised multiple distinct claims, the instant
appeal concerns only the ASAC selection decision. W-3 AF, Tab 24 at 2.
5 The initial decision refers to the Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112–199, 126 Stat. 1465. ID at 5. With exceptions not pertinent
to this IRA appeal, because the events at issue all occurred before its December 27,
2012 enactment, the WPEA does not apply. See, e.g., Miller v. Federal Deposit
Insurance Corporation , 122 M.S.P.R. 3, ¶ 15, n.5 (2014), aff’d, 626 F. App’x 261 (Fed.
Cir. 2015). Nevertheless, we find that the statutory amendments of the WPEA would be
immaterial to the dispositive issues in this appeal. See Panter v. Department of the Air5
Department of the Army , 123 M.S.P.R. 592, ¶ 21 (2016). If the appellant meets
that burden, then the Board shall order such corrective action as it considers
appropriate unless the agency shows by clear and convincing evidence that it
would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(1)-(2) (2011); Scoggins, 123 M.S.P.R. 592, ¶ 26.
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 all of the relevant evidence, including the
following factors: the strength of the agency’s evidence in support of its action;
the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs , 116
M.S.P.R. 197, ¶ 36 (2011).
The appellant made a protected disclosure that was a contributing factor in the
agency’s decision not to select him for the Denver ASAC position.
As noted above, the agency filed a cross petition for review challenging the
administrative judge’s finding that the appellant established his prima facie case
of reprisal for protected whistleblowing activity. PFR File, Tab 6 at 5-9. A
protected disclosure for purposes of whistleblowing is one that the appellant
reasonably believed evidenced gross mismanagement, a gross waste of funds, an
abuse of authority, a substantial and specific danger to public health or safety, or
any violation of law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A) (2011);
Scoggins, 123 M.S.P.R. 592, ¶ 11. 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
Force, 22 M.S.P.R. 281, 282 (1984).6
evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A).
Scoggins, 123 M.S.P.R. 592, ¶ 11.
We agree with the administrative judge that the appellant disclosed a
violation of the agency’s rule proscribing employees married to each other from
working for the same first-level supervisor. ID at 3, 5; IAF, Tab 14 at 87-90.
Moreover, for the following reasons, we are not persuaded by the agency’s
argument that the appellant lacked a reasonable belief that he was disclosing a
violation of the rule because the violation, which it contends was widely known,
had been remedied at the time of his disclosure. PFR File, Tab 6 at 6. The
agency argues on review that the violation, i.e., married employees serving under
the same first-line supervisor, had been cured a year and a half before the
appellant made his alleged disclosure, leaving him “nothing to blow the whistle
about.” PFR File, Tab 6 at 5. It argues that under the administrative judge’s
rubric an employee could make a protected disclosure “by ‘disclosing’ any rule
violation that ever occurred in the history of the agency.” Id. at 6.
The administrative judge found that, even though the violation itself had
ceased and it was widely known that the couple in question worked for the same
supervisor, the fact that it violated agency policy was not widely known, and the
violation had occurred recently enough that it was reasonable for the appellant to
disclose it. ID at 6. We agree. Regardless of whether the violation had ceased,
its occurrence is not in dispute. Moreover, the statute makes it a prohibited
personnel practice to take or fail to take a personnel action because of “any
disclosure of information by an employee or applicant which the employee or
applicant reasonably believes evidences —(i) a violation of any law, rule, or
regulation.” 5 U.S.C. § 2302(b)(8)(A)(i) (2011). It does not require that the
violation be ongoing nor does it explicitly exclude violations that have ceased.
Id. Therefore, we find that the agency’s arguments provide no basis to disturb the
administrative judge’s findings in this regard.7
The administrative judge also correctly found that the appellant’s
disclosure was a contributing factor in the personnel action at issue—the decision
not to select him for the Denver ASAC position. ID at 6-7; see 5 U.S.C.
§ 2302(a)(2)(A)(ii) (2011) (defining “personnel action” to include “promotion”).
The record reflects that the selection was made no later than 4 months after the
relevant officials learned of the appellant’s disclosure, a temporal proximity
sufficient to satisfy the knowledge/timing test. ID at 7; Tr., Day 2 at 131-33
(testimony of the OCEFT Director); see, e.g., Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶ 17 (2014) (finding that an interval of approximately 4 months
was sufficient to satisfy the timing prong of the knowledge/timing test). Thus, we
agree with the administrative judge that the appellant made a protected disclosure
that was a contributing factor in the agency’s selection decision, and we deny the
agency’s cross petition for review.
The agency established by clear and convincing evidence that it would have made
the same selection absent the appellant’s protected disclosures.
We now consider the three Carr factors, set forth above, to determine
whether the agency established by clear and convincing evidence that it would
have made the same decision absent the appellant’s disclosure. See Carr,
185 F.3d at 1323. The Board does not view the Carr factors as discrete elements,
each of which the agency must prove by clear and convincing evidence, but rather
weighs the factors together to determine whether the evidence is clear and
convincing as a whole. E.g., Mithen v. Department of Veterans Affairs ,
122 M.S.P.R. 489, ¶ 36 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016) (Table).
Crucial to this analysis, the Board must consider all of the evidence, including
that which fairly detracts from the conclusion that the agency met its burden.
Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).8
The agency’s evidence in support of its decision
The first Carr factor concerns the strength of the agency’s evidence in
support of its decision. Carr, 185 F.3d at 1323. The administrative judge found
that, although the relevant officials knew of the appellant’s history and
connections to Denver, they offered credible reasons for placing him in Seattle
instead. ID at 7. Specifically, the interview panelists, none of whom the
appellant alleges were retaliating against him, unanimously recommended him for
the Seattle position. W-3 AF, Tab 14 at 113-14. We agree with the
administrative judge that this unequivocal recommendation from an impartial
panel lends strong support to the OCEFT Director’s ultimate decision. ID at 7.
Furthermore, the administrative judge accurately recounted the deciding official’s
testimony as to why he agreed with the recommendation. ID at 7-8. Specifically,
the OCEFT Director testified that he was concerned about the quality of training
and supervision available at the Denver office, so he preferred to fill the position
there with an individual who already had prior ASAC experience. Tr., Day 2
at 141-42 (testimony of the OCEFT Director). More specifically, the OCEFT
Director testified that the Denver position was not going to provide the selectee
much experience in “field work, . . . case management, . . . interaction with
agents, [or] interaction with the region,” but this was going to be less of a
problem for ASAC O, who already had extensive experience in these areas. Id.
at 144-45, 149 (testimony of the OCEFT Director). Conversely, the OCEFT
Director testified that the appellant, who lacked prior experience as an ASAC,
would have a better developmental opportunity in Seattle. Id. at 155 (testimony
of the OCEFT Director). Finally, The OCEFT Director testified that he “knew
there had been friction between” the appellant and the Denver SAC in the past,
and he was concerned that this would not be a good environment for a new ASAC
to step into.6 Id. at 156 (testimony of the OCEFT Director).
6 The existence of this “friction” between the appellant and the Denver SAC is
corroborated by other testimony. Tr., Day 2 at 34, 68-75 (testimony of the Denver9
There is other evidence, however, that detracts from the agency’s position.
Specifically, the appellant testified that he would have needed minimal job
training to take on the ASAC role, particularly in the Denver office, because he
had already been performing “a lot of the same duties” while he was Resident
Agent in Charge in Helena, Montana. Tr., Day 1 at 88-89 (testimony of the
appellant). The CID Acting Director corroborated the appellant’s testimony. He
stated that there was no reason that the appellant could not have transitioned
smoothly into the Denver ASAC role. Id. at 116 (testimony of the CID Acting
Director). In fact, he testified that the appellant was in a better position to take
on the role than ASAC O because the appellant was already familiar with the
Denver region and had established relationships there. Id. at 116-17 (testimony
of the CID Acting Director). Moreover, unlike the situation with ASAC O, the
agency would not have had to pay for the appellant to relocate for the Denver
position. Id. at 117-18 (testimony of the CID Acting Director). The appellant
also gave a different account of his relationship with the Denver SAC. He
testified that there were no issues between them that would have prevented him
from serving as her ASAC. Id. at 182 (testimony of the appellant). He also
testified that whatever friction there was stemmed from the Denver SAC’s failure
to keep his initial disclosure to her in confidence; he did not mention any of the
previous professional disagreements that the Denver SAC cited in her testimony.
Tr., Day 1 at 68-69, 182 (testimony of the appellant); Tr., Day 2 at 34, 68-75
(testimony of the Denver SAC). Finally, the record shows that, contrary to the
OCEFT Director’s stated expectations, ASAC O’s appointment to Denver did not
work out; he was unable to maintain a productive working relationship with the
Denver SAC, and so the agency reassigned him to Seattle a mere 9 months after
his appointment. W-3 AF, Tab 14 at 144; Tr., Day 1 at 123-25 (testimony of the
CID Acting Director).
SAC), 172 (testimony of the Seattle SAC).10
Having considered this evidence as a whole, we find no basis to disturb the
administrative judge’s overall assessment of the strength of the agency’s
evidence. Both the CID Acting Director and the OCEFT Director offered
reasonable explanations for their points of view, and it appears that the difference
between them comes down to professional disagreement. That the CID Acting
Director had a different reasonable opinion than did the OCEFT Director does not
seriously undermine the agency’s case. This is especially so considering that the
OCEFT Director’s ultimate decision regarding the appellant was consistent with
the interview panel’s recommendation. Furthermore, although the OCEFT
Director’s decision to deviate from the panel recommendation with respect to
Denver did not work out, it does not follow that the correct course of action
would have been to deviate from the Seattle recommendation as well by placing
the appellant in Denver.7 The record shows that, when ASAC O left Denver in
July 2011, the agency filled the position with ASAC M, consistent with the
panel’s original recommendation. W-3 AF, Tab 14 at 144. This decision was
also consistent with the OCEFT Director’s stated opinion that the Denver position
should be filled with an experienced ASAC.
On petition for review, the appellant argues that the agency’s evidence in
support of its ASAC selection decisions was not strong. Specifically, he argues
that the OCEFT Director failed to account for the Denver SAC’s preference for
the appellant over ASAC O. PFR File, Tab 4 at 14. The appellant’s theory of the
case is that the CID Director retaliated against him by withholding this
information from the OCEFT Director until it was too late and the selection
decision had already been made. Id. at 9, 12-15. Although the CID Director was
7 On petition for review, the appellant seeks to reopen discovery, arguing that the
agency should have but failed to provide a memorandum concerning the poor working
relationship between the Denver SAC and ASAC O, which memorandum may also
contain information pertinent to the CID Director’s motive to retaliate. PFR File, Tab 4
at 17-19. Based on the appellant’s description of the information sought, we find that it
would be immaterial to the outcome of the appeal, and we therefore deny the request.
See Russell v. Equal Employment Opportunity Commission , 110 M.S.P.R. 557, ¶ 15
(2009).11
not the selecting official, we agree with the appellant that she was involved in the
selection process, and that retaliation through her might be shown under a cat’s
paw theory. See generally Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19.
However, the facts of this case do not support such a finding; only 45 minutes
elapsed between the time that the CID Director learned of the Denver SAC’s
opinion and the time that the Denver SAC learned of the selection decision. W-3
AF, Tab 30 at 12; Tr., Day 2 at 63-64 (testimony of the Denver SAC). This is not
a sufficient span of time to support a conclusion that the CID Director “withheld”
the information from the OCEFT Director.8 This is especially so considering that
the Denver SAC had planned to speak with the OCEFT Director that very
afternoon. Tr., Day 2 at 60, 63 (testimony of the Denver SAC). It is likely that
the OCEFT Director had already taken the selection action before the
conversation between the CID Director and the Denver SAC even occurred, but in
either case, the record shows that the final selection decision came out earlier
than either of these officials had expected.
Motive to retaliate
Contrary to the administrative judge’s findings on the second Carr factor,
in which he discounted the CID Director’s motive to retaliate against the
appellant, ID at 9, we agree with the appellant that, because she was the subject
8 The administrative judge credited the OCEFT Director’s testimony that, even if he had
known of the Denver SAC’s opposition to ASAC O, it would have influenced his
decision only “minimally.” ID at 8-9; Tr., Day 2 at 153; (testimony of the OCEFT
Director). However, particularly in light of the clear and convincing evidence standard,
we find the evidence on this point equivocal at best. The fact remains that the OCEFT
Director would have at least considered the Denver SAC’s opinion in making his
selection, Tr., Day 2 at 153-54 (testimony of the OCEFT Director), just as he
considered and deferred to the Kansas City SAC’s preference not to fill the Kansas City
ASAC position at all. On the other hand, the OCEFT Director would have had to weigh
against that consideration the Seattle SAC’s desire to have the appellant in his own
office. Tr., Day 2 at 170-71 (testimony of the Seattle SAC). In any event, this
counterfactual scenario is far less significant in the analysis than the undisputed fact
that the OCEFT Director did not know of the Denver SAC’s preference, and the lack of
evidence that this was caused by the intentional withholding of information.12
of his protected whistleblowing disclosure, the CID Director had a significant
motive to retaliate against him, PFR File, Tab 4 at 8-9. See Smith v. General
Services Administration , 930 F.3d 1359, 1366-67 (Fed. Cir. 2019) (outlining that,
when analyzing the second Carr factor, the Board should have considered,
amongst other things, that the disclosures “embarrassed” the management
officials implicated). However, as explained above, regardless of the CID
Director’s motive, and, even if she really thought that by withholding the
information she could disadvantage the appellant, the chronology shows that this
did not and perhaps could not have happened. We have also considered that the
CID Director influenced the selection process prior to her conversation with the
Denver SAC when she discussed the panel recommendation with the OCEFT
Director. Tr., Day 2 at 95-100 (testimony of the CID Director). However, there
is no evidence that any suggestions or recommendations that she made during
these discussions could be considered retaliatory against the appellant.
As for the OCEFT Director himself, we find that a retaliatory motive could
be imputed towards him to the extent that he was a senior official and
representative of the institutional interests of the agency. See Chambers v.
Department of the Interior , 116 M.S.P.R. 17, ¶¶ 3, 69, 71 (2011). However, the
administrative judge found that, if the OCEFT Director had any retaliatory
motive, it was only slight. ID at 9. The appellant does not challenge this finding
on review, and we find no reason to disturb it.
The agency’s treatment of similarly situated individuals
The third Carr factor concerns evidence that the agency takes similar
actions against employees who are not whistleblowers but are otherwise similarly
situated. The agency identified ASAC O as a similarly situated
non-whistleblower whom it treated similarly to the appellant. Specifically,
ASAC O would have preferred the Seattle position, but the agency selected him
for the Denver position instead. W-3 AF, Tab 19 at 12-13; IAF, Tab 15 at 16, 64.13
The agency argues that neither the appellant nor ASAC O got the position that
they preferred; in each case the deciding official made his decision based on what
he believed were the best interests of the agency regardless of the candidates’
personal preferences. W-3 AF, Tab 119 at 12-13. In that regard, we note that the
OCEFT Director encouraged both candidates to apply for the other position,
which they did. W-3 AF, Tab 14 at 121; Tr., Day 1 at 84 (testimony of the
appellant). We further observe that ASAC M, the highest scoring candidate, was
also not selected for the position that he wanted because the OCEFT Director
decided that the agency’s interests would be better served if he remained in
Chicago. Tr., Day 2 at 92-98 (testimony of the CID Director), 136-38 (testimony
of the OCEFT Director). We acknowledge the possibility that the agency treated
the appellant and ASAC O similarly merely because doing so would disadvantage
the appellant. Nevertheless, on balance, we find that the agency’s evidence tends
to show that it has taken similar actions with respect to similarly situated
non-whistleblowers.
The appellant counters with evidence that the agency has used geographical
reassignment to retaliate against two other agency employees for their protected
activity.9 PFR File, Tab 4 at 15-17. The first of these individuals was a Special
Agent in Baltimore, Maryland, who disclosed violations of the Family and
9 We recognize that this evidence does not fit within the literal parameters of the third
Carr factor, which concerns the agency’s treatment of similarly situated
non-whistleblowers. See Rickel v. Department of the Navy , 31 F.4th 1358, 1363 (Fed.
Cir. 2022). Nevertheless, we observe that the Carr factors were originally formulated
by a Merit Systems Protection Board administrative judge to address the facts of a
specific case. Rychen v. Department of the Army , 51 M.S.P.R. 179, 184-85 (1991). The
Board and the U.S. Court of Appeals for the Federal Circuit subsequently recognized
that these factors have broad applicability to whistleblower claims and have employed
them as a useful analytical framework for a wide variety of fact patterns. E.g., Carr,
185 F.3d at 1323. Much like the penalty factors in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 -06 (1981), the Carr factors are not intended to be an exhaustive
list, and Carr should not be read to preclude the Board from considering other relevant
evidence that does not fit neatly within the rubric. See Rickel, 31 F.4th 1358 at 1364
(“In determining whether the agency has carried its burden, the Board considers the
three nonexclusive Carr factors.”). Conversely, not every Carr factor will necessarily
be relevant in every particular case. See id. at 1365-66.14
Medical Leave Act of 1993, threatened to file a grievance about the matter, and
was subsequently reassigned, involuntarily, to Seattle. W-3 AF, Tab 16 at 19-23.
The CID Director was one of the officials who concurred in the reassignment.
W-3 AF, Tab 16 at 8; Tr., Day 2 at 84 (testimony of the CID Director). The
affected Special Agent filed a complaint with OSC, which found that the
reassignment was retaliatory, in violation of the Whistleblower Protection Act.
W-3 AF, Tab 16 at 18-31. We have reviewed this evidence, which the agency
does not dispute, and we find that it shows that, in 2010, the SAC in Philadelphia,
Pennsylvania engaged in whistleblower retaliation against this Special Agent.
However, having carefully reviewed OSC’s report and the other relevant
documents, we find no evidence that the CID Director herself acted with
retaliatory animus in that case. Rather, it appears that she and various other
officials approved the Philadelphia SAC’s reassignment request based on the
facially legitimate but pretextual reasons that she was given. W-3 AF, Tab 16
at 4-8. In other words, in that case, it was the CID Director who was the cat’s
paw.
The second employee was ASAC B, who filed an equal employment
opportunity (EEO) complaint after she was not selected for a promotion to the
position of SAC in Dallas, Texas. She named the CID Director as the
discriminating official. Tr., Day 2 at 10 (testimony of ASAC B). The following
month, the CID Director placed ASAC B on a performance improvement plan,
and ASAC B filed another EEO complaint about that action. Id. at 11 (testimony
of ASAC B). Approximately 5 months later, the CID Director proposed
ASAC B’s removal for lack of candor. W3-AF, Tab 15 at 72-75. The OCEFT
Director was the deciding official, and he did not sustain the charge. Id. at 76.
Nevertheless, he involuntarily reassigned ASAC B to agency headquarters in
Washington, D.C. Tr., Day 2 at 18-19 (testimony of ASAC B). Rather than
report to duty in Washington, D.C., ASAC B agreed with the agency that she
would retire. W-3 AF, Tab 15 at 79; Tr., Day 2 at 19-20 (testimony of ASAC B).15
Although this series of events may raise an inference of retaliation, in the absence
of a judgment from a tribunal of competent jurisdiction, it is impossible for us to
determine in the context of this IRA appeal whether retaliation in ASAC B’s case
actually occurred. The appellant argues on review that ASAC B filed a lawsuit in
Federal district court, which the agency settled almost immediately. PFR File,
Tab 4 at16; Tr., Day 2 at 20-21 (testimony of ASAC B). However, for reasons
that the Board has previously explained, we will not consider evidence of a
settlement or settlement negotiations in determining the existence or extent of
liability. See Hayden v. U.S. Postal Service , 15 M.S.P.R. 296, 302 (1983), aff’d,
758 668 (Fed. Cir. 1984) (Table). We therefore find that ASAC B’s case is not
competent evidence on whether the agency would have taken the same action in
the appellant’s case notwithstanding his protected whistleblowing.
The appellant also cites to an October 19, 2010 memorandum concerning
OCEFT and CID leadership. W-3 AF, Tab 17 at 4-8, Tab 30 at 17. He argues
that this memorandum shows that the agency, and the CID Director in particular,
have used involuntary reassignments as a tool of retaliation in other cases. W-3
AF, Tab 30 at 17. We have reviewed this memorandum, but we do not agree with
the appellant’s argument. The memorandum seems to show that numerous CID
and other OCEFT employees were unhappy with the climate in OCEFT and felt
that some personnel matters were being handled unfairly. W-3 AF, Tab 17 at 4-8.
However, nowhere in this document are the CID or OCEFT Directors implicated
personally, and there is no discussion of any sort of prohibited personnel practice.
In any event, we find that this vague, unsworn, triple-hearsay document does not
constitute probative evidence of whether the agency committed a prohibited
personnel practice in this case. See Cooper v. United States , 639 F.2d 727, 730,
226 Ct. Cl. 75 (1980) (finding triple hearsay to be “highly unreliable”).
Considering all of the evidence described above, we find that the agency
has shown by clear and convincing evidence that the OCEFT Director would have
made the same decisions even absent the appellant’s protected disclosures. The16
OCEFT Director’s stated reasons for making his decision are supported by and
consistent with the other evidence of record. There is little evidence of
retaliatory motive by the OCEFT Director, and there is no evidence to show that,
when he made his decision to promote the appellant to an ASAC position in
Seattle (a position for which the appellant had applied), he was even aware that
this would have been an undesirable outcome for the appellant. Although the
CID Director had significant retaliatory motive, the record shows that she did not
actually influence the ASAC selection decision in any way that she believed
would be disadvantageous to the appellant.
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
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.17
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain18
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 19
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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. 20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.21 | Marsden_Robert_J_DE-1221-14-0298-W-3 Final Order.pdf | 2024-02-13 | ROBERT J. MARSDEN v. ENVIRONMENTAL PROTECTION AGENCY, MSPB Docket No. DE-1221-14-0298-W-3, February 13, 2024 | DE-1221-14-0298-W-3 | NP |
2,352 | https://www.mspb.gov/decisions/nonprecedential/Slade_Leslie_C_CH-0752-19-0111-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LESLIE C. SLADE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-19-0111-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary Ratliff , Columbia, Missouri, for the appellant.
Andrew E. Zleit , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
On petition for review, the appellant has not challenged the administrative
judge’s specific jurisdictional findings, but rather submits over 200 pages of
medical documents. Petition for Review (PFR) File, Tabs 1, 3. However, she has
not explained why she could not have submitted these documents below.2 Nor
has she shown that the information contained in the documents, which are largely
dated from 2015 to February 14, 2018, was not available prior to the close of the
record below despite her due diligence. Thus, we decline to consider them. See
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); 5 C.F.R. § 1201.115(d). In any
event, she has not explained the relevance of such documents. For the same
reasons, we also decline to consider the appellant’s personnel documents
submitted on review, which are dated 2015 or earlier.3 PFR File, Tab 3 at 127-31.
The appellant also submits for the first time on review a medical document
dated February 20, 2019, regarding an appointment to obtain documentation to
2 The appellant’s vague assertions on review regarding her health and financial
situation, PFR File, Tab 1 at 4, fail to establish that her alleged new evidence was
unavailable despite her due diligence. Additionally, although the appellant also asserts
that she could not afford an employment attorney, PFR File, Tab 1 at 4, the Board has
generally found that an appellant’s lack of representation does not provide a basis for
granting review, see, e.g., Feathers v. Office of Personnel Management , 27 M.S.P.R.
485, 487 (1985).
3 The appellant also submits on review the Standard Form 50 regarding her resignation,
which is part of the record below and therefore not new. PFR File, Tab 3 at 126; see
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980 (stating that evidence
that is already a part of the record is not new). 2
clear her for employment. PFR File, Tab 3 at 24-25. The appellant has not
explained, and it is not clear, how this document is relevant to her alleged
involuntary resignation on June 7, 2018. Finally, the appellant’s bare claim that
the administrative judge was biased toward the agency, PFR File, Tab 1 at 5, fails
to show a deep -seated antagonism towards the appellant that would make fair
judgment impossible or overcome the presumption of honesty and integrity
accorded to administrative judges, and thus fails to provide a basis for reversal,
see Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002);
Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980).
After fully considering the filings in this appeal, we conclude that 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 RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Slade_Leslie_C_CH-0752-19-0111-I-1__Final_Order.pdf | 2024-02-13 | LESLIE C. SLADE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-19-0111-I-1, February 13, 2024 | CH-0752-19-0111-I-1 | NP |
2,353 | https://www.mspb.gov/decisions/nonprecedential/Hawker_Jeffrey_DC-1221-22-0006-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY HAWKER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-22-0006-W-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
E
laine Fitch , Esquire, Washington, D.C., for the appellant.
Amanda E. Shaw , Roanoke, Virginia, for the agency.
Timothy M. O’Boyle , Esquire, Hampton, 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 the appellant’s individual right of action (IRA) appeal for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant established exhaustion regarding his first two alleged
disclosures in his October 12, 2021 affidavit and failed to establish contributing
factor for several of his alleged disclosures through methods other than the
knowledge/timing test, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant exhausted disclosures (1) and (2), but the administrative judge’s
contrary findings do not warrant reversing the initial decision.
In response to the administrative judge’s order to establish Board
jurisdiction over his appeal, Initial Appeal File (IAF), Tab 3, the appellant filed
an October 12, 2021 affidavit in which he claimed to have made the following
disclosures:
(1)“concerns” regarding “studies or procedures being performed
incorrectly” expressed to individuals in the radiology department;
(2)“concern” regarding the safety of his supervisor’s performance of
“some procedures” expressed to his supervisor;
(3)his supervisor performed a carotid artery stent ( CAS) without using a
cerebral embolic protection device, which placed the patient at a
significant risk of a stroke, made to the agency Office of Inspector
General (OIG);2
(4)“multiple failures within the [radiology] department, patient safety
issues, and studies performed that did not meet the standards of care,”
made to an agency Human Resources Specialist; and
(5)radiologists were performing procedures, such as CAS and transjugular
intrahepatic portosystemic shunts (TIPS), beyond their scopes and the
scopes of the facility and staff, made to OIG.
IAF, Tab 5.
In finding that the appellant failed to exhaust disclosures (1) and (2), the
administrative judge, citing, inter alia, Ward v. Merit Systems Protection Board ,
981 F.2d 521, 526 (Fed. Cir. 1992), stated that to satisfy the exhaustion
requirement, the appellant must inform the Office of Special Counsel (OSC) of
the precise ground of his whistleblowing charge, giving OSC a sufficient basis to
pursue an investigation that might lead to corrective action. IAF, Tab 11, Initial
Decision (ID) at 9. Based on the Board’s clarification of the substantive
requirements of exhaustion in Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶¶ 10-11, which was issued after the initial decision, we agree
with the appellant’s argument on review that such requirements are met when an
appellant has provided OSC with sufficient basis to pursue an investigation. Id.,
¶ 10; Petition for Review (PFR) File, Tab 3 at 15. The Board also stated in
Chambers that its jurisdiction over an IRA appeal is limited to those issues that
have been previously raised with OSC. 2022 MSPB 8, ¶ 10. An appellant may
demonstrate exhaustion through his initial OSC complaint or correspondence with
OSC, other sufficiently reliable evidence such as an affidavit or declaration
attesting that he raised with OSC the substance of the facts in his Board appeal,
or unrebutted statements to that effect on a certified initial appeal form. Id.,
¶ 11 & n.7.
Applying the Chambers standard, we find that disclosures (1) and (2) were
exhausted with OSC as evidenced by OSC’s August 2021 close-out letter. The
letter stated that the appellant alleged that he “discussed [his] concerns about [his
supervisor’s] proficiency and perceived lack of training with Imaging Services3
staff.” IAF, Tab 1 at 16. As the appellant’s supervisor was the Chief of Imaging
Service and in the radiology department, id. at 41; Hawker v. Department of
Veterans Affairs , MSPB Docket No. DC -1221-14-0802-W-1, Initial Appeal File
(0802 IAF), Tab 1 at 13, the inclusion of this alleged disclosure in the close-out
letter, which was broad enough to encompass both disclosures (1) and (2),
demonstrates that the appellant gave OSC a sufficient basis to pursue an
investigation with a scope covering those disclosures.
However, because we agree with the administrative judge that the
appellant’s alleged disclosures failed to support a nonfrivolous allegation of
Board jurisdiction,2 the administrative judge’s findings that the appellant failed to
establish exhaustion for disclosures (1) and (2) did not prejudice the appellant’s
substantive rights and provide no basis for reversing the initial decision.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
The appellant failed to nonfrivolously allege contributing factor for disclosures
(1), (3), (4), and (5) through methods other than the knowledge/timing test.
We also agree with the administrative judge’s findings supporting the
conclusion that, for disclosures (1), (3), (4), and (5), the appellant failed to
2 The appellant’s assertion that the administrative judge dismissed the appeal due to the
appellant’s failure to file his original OSC complaint on appeal, PFR File, Tab 3
at 17-18, is incorrect, as the administrative judge located the appellant’s original OSC
complaint in the record of one of the appellant’s prior Board appeals, incorporated it
into his analysis, ID at 11 & n.10, 12 & n.11, 13, 17 n.16, 19, 21 n.19, and dismissed
the appeal for lack of jurisdiction on other grounds. We also find unpersuasive the
appellant’s argument, citing Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1369 (Fed. Cir. 2020), that the administrative judge’s review of the evidence “in
support of” his allegations constituted reversible error. PFR File, Tab 3 at 22-23.
Hessami states that the Board may not dismiss a whistleblower reprisal appeal on
jurisdictional grounds based on a summary review of the evidence on the merits, or by
crediting the agency’s interpretation of the evidence as to whether an appellant made a
prima facie case. 979 F.3d at 1368-69. It is apparent from the administrative judge’s
analysis that he found that the appellant failed to make a nonfrivolous allegation of
jurisdiction based on the appellant’s October 12, 2021 affidavit—the document the
appellant submitted in response to the order to establish jurisdiction—and not based on
a summary review of the evidence on the merits or by crediting the agency’s
interpretation of the evidence. ID at 15-21. The administrative judge’s denial of
jurisdiction thus did not violate the proscriptions in Hessami. 4
nonfrivolously allege contributing factor through the knowledge/timing test. ID
at 15-16, 18, 20, 21. However, if the appellant fails to satisfy the
knowledge/timing test, the administrative judge is required to consider whether
the appellant proved contributing factor through other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing or protected activity was personally
directed at the proposing or deciding officials, and whether these individuals had
a desire or motive to retaliate against the appellant. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 65 . The administrative judge did not
address these other methods, but even when considered, the appellant still failed
to establish contributing factor.
The agency’s reasons for its personnel actions—which all stemmed from
the appellant’s lack of competence—were strong, as shown by evidence the
appellant filed on appeal. In addition to two unsatisfactory performance
appraisals and peer reviews—mostly performed by “outside radiologists”—
confirming quality problems in the appellant’s work, IAF, Tab 1 at 40-41, 43-44,
51-68; 0802 IAF, Tab 1 at 22, the appellant stated in his OSC complaint that
during his second week of employment, which was before he engaged in any
whistleblowing activity, IAF, Tab 1 at 16, 99, his supervisor and the Chief of
Staff suggested that he needed additional training and that the Chief of Staff told
him that it would be better if he “left on [his] own . . . as opposed to being
terminated later.” 0802 IAF, Tab 1 at 13. This conversation appears to have been
confirmed by the appellant’s supervisor’s notation on the appellant’s performance
appraisal stating that on May 6, 2013, the supervisor discussed the appellant’s
performance and “poor procedural skills and store of knowledge” with the Chief
of Staff. IAF, Tab 1 at 40. Further, the appellant stated in his OSC complaint
that in June 2013, which was prior to any of the alleged whistleblowing activity,
his supervisor said that the appellant did not bring the level of expertise the
agency had hoped for when they hired him. 0802 IAF, Tab 1 at 13.5
For disclosures (1) and (4) regarding unidentified “studies,” “procedures,”
“failures,” and “issues,” because the appellant failed to specify what was
disclosed, there is no indication that the appellant’s whistleblowing activity was
personally directed at the officials responsible for the alleged personnel actions.
Nor is there any indication that those officials had a motive to retaliate against
him because the disclosures, for instance, could have reflected negatively on the
radiology department or medical center. Accordingly, considering methods for
establishing contributing factor other than the knowledge/timing test, the
appellant still failed to establish contributing factor for disclosures (1) and (4).
On the other hand, disclosure (3), which was made to OIG and addressed
the appellant’s supervisor’s allegedly unsafe performance of a CAS, was
personally directed at the appellant’s supervisor, who it can be inferred could
have had a motive to retaliate against the appellant because of it. Further,
disclosure (5), which was also made to OIG and addressed radiologists
performing CAS and TIPS beyond their scopes, though not personally directed at
any named individuals in the allegation, could have created a motive to retaliate
against the appellant in his supervisor as manager of the radiology department
and perhaps even in the Chief of Staff and Director . However, considering the
totality of the evidence, including the absence of any indication or allegation that
those officials knew of his OIG disclosures when they took the alleged personnel
actions, the strength of the agency’s reasons for its personnel actions, and the fact
that—as evidenced by the appellant’s own admissions—the agency’s
identification of the appellant’s performance issues well preceded any of his
alleged disclosures, the appellant also failed, under methods for establishing
contributing factor other than the knowledge/timing test, to nonfrivolously allege
contributing factor for disclosures (3) and (5).3
3 The appellant filed a motion after the close of the record on review requesting leave to
file an additional pleading explaining how two Board decisions issued after he filed his
petition for review— Skarada v. Department of Veterans Affairs , 2022 MSPB 17, and
Wilson v. Department of Veterans Affairs , 2022 MSPB 7—support his arguments. PFR6
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.
File, Tab 8. In support of his motion, he cites the Board’s discussions relating to
whether the appellants in those cases reasonably believed they disclosed evidence of a
substantial and specific danger to public health or safety. Id. at 5 (citing Skarada,
2022 MSPB 17, ¶ 12 n.3; Wilson, 2022 MSPB 7, ¶ 40). Once the record closes on
review, no additional evidence or argument will be accepted unless it is new and
material and was not readily available before the record closed. 5 C.F.R.
§ 1201.114(k). We considered Skarada, Wilson, and other recent Board decisions in
whistleblower reprisal appeals, and fail to discern how they present a reason to disturb
the initial decision. Because our review of those cases does not show a need for any
additional pleadings, the appellant’s motion is denied.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,8
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Hawker_Jeffrey_DC-1221-22-0006-W-1_Final_Order.pdf | 2024-02-13 | JEFFREY HAWKER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-22-0006-W-1, February 13, 2024 | DC-1221-22-0006-W-1 | NP |
2,354 | https://www.mspb.gov/decisions/nonprecedential/Kidalov_Maxim_V_SF-1221-16-0530-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAXIM V. KIDALOV,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-16-0530-W-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maxim V. Kidalov , Monterey, California, pro se.
Michelle J. Hirth , Monterey, 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
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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
supplement the administrative judge’s analysis of the contributing factor criterion
for one protected activity, we AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The following facts, as further detailed in the initial decision, appear to be
undisputed. In February 2009, the agency appointed the appellant to a
tenure-track Assistant Professor position specializing in contract law at the Naval
Postgraduate School (NPS), Graduate School of Business and Public Policy
(GSBPP). Kidalov v. Department of the Navy , MSPB Docket No. SF -1221-16-
0530-W-1, Initial Appeal File (IAF), Tab 76, Initial Decision (ID) at 2. The
position generally required that he do three things: teach, engage in significant
research and writing, and engage in service to the school and agency community.
Id. In this time-limited position, the appellant was not guaranteed promotion and
tenure, but he was expected to work toward and eventually apply for promotion
and tenure.2 ID at 2-3.
2 For an Assistant Professor such as the appellant, promotion and tenure go
hand-in-hand; promotion may not be granted unless tenure is granted. See Kidalov v.
Department of the Navy , MSPB Docket No. SF-1221-16-0530-S-1, Stay Appeal File
(SAF), Tab 11 at 414. Therefore, to the extent that we discuss the appellant’s tenure,
our findings apply equally to his nonpromotion. 2
After a tenure-track employee such as the appellant applies for tenure at the
GSBPP, there are a number of steps to determine whether tenure will be granted.
Generally speaking, the appellant’s qualifications are sequentially considered by
(1) a School Evaluation Committee (SEC), (2) a Faculty Promotion Council
specific to the GSBPP (GSBPP FPC), (3) the Dean of the GSBPP, (4) a Faculty
Promotion Council for the broader school (NPS FPC), (5) a Dean’s Advisory
Council (DAC), (6) the NPS Provost, and (7) the NPS President. ID at 3-4.
While each of the others evaluate a candidate’s qualifications and make
recommendations, the decision to award or deny tenure ultimately lies with the
NPS President. ID at 4.
The appellant became eligible for, and began participating in, the tenure
application process in 2014. After gathering relevant information from the
appellant, agency officials, and reviewers from outside the agency, the SEC
“unanimously recommend[ed] with reservation” that he be granted tenure. ID
at 5; IAF, Tab 13 at 83-86. The GSBPP FPC conducted an initial straw vote of 4
in favor, 8 neutral, and 9 opposed but held a final vote after further consideration
with 13 in favor and 5 opposed. ID at 5-6; IAF, Tab 13 at 87-89. The Dean of
the GSBPP recommended tenure. ID at 6; IAF, Tab 13 at 87-89. The NPS FPC
expressed several reservations about the appellant’s candidacy but ultimately
voted 11 in favor and 2 opposed. ID at 6; IAF, Tab 20 at 79-83. The DAC voted
1 in favor and 3 opposed. ID at 6; IAF, Tab 20 at 83. Finally, the NPS Provost
recommended that the appellant not be granted tenure, and the NPS President
adopted that recommendation. ID at 6-7; IAF, Tab 20 at 88-89. Following that
March 2015 decision, the agency granted the appellant a term appointment to
wrap up his work, as is customary for individuals denied tenure. ID at 4, 7.
Over the following months, the appellant challenged the agency’s decision
to deny him tenure in a number of forums. ID at 7. As a result of an internal
challenge, the NPS President concluded that the GSBPP FPC made a procedural
error by failing to include reasons for the votes opposed to the appellant’s tenure.3
ID at 8; IAF, Tab 13 at 108-13. Therefore, he instructed the necessary parties to
reconsider the appellant’s application. The NPS President subsequently informed
the appellant that, following re-review of his candidacy, the agency would not
award him promotion and tenure. ID at 10; IAF, Tab 13 at 114.
The appellant also filed a complaint with the Office of Special Counsel
(OSC), in which he alleged retaliation for protected disclosures and activities. ID
at 7; IAF, Tab 10 at 13-262. In March 2016, OSC closed the complaint and this
IRA appeal followed.3 ID at 7-8; IAF, Tab 1 at 10. After developing the record
and holding a 4-day hearing, the administrative judge issued an initial decision
that denied the appellant’s request for corrective action. ID at 1.
The administrative judge considered the appellant’s 12 alleged disclosures
and activities. ID at 28-57. She found that he met his burden of proving that
Activities 1, 4, 5, 7, and a portion of 11 were protected. Id. Of those, she
determined that the appellant met his burden of proving that Activities 5, 7, and a
portion of 11 were a contributing factor in the personnel action at issue—the
agency’s decision to deny him promotion and tenure. ID at 58-66.
Although the administrative judge found that the appellant presented a
prima facie case of whistleblower retaliation, she also determined that the agency
met its burden of proving that it would have taken the same action in the absence
of the appellant’s protected disclosures and activities. ID at 66-112. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 5.
The agency has filed a response and the appellant has replied. PFR File,
Tabs 9-10.4
3 The appellant separately filed a request to stay his appointment’s expiration. SAF,
Tab 1; see 5 C.F.R. § 1209.8. The administrative judge denied the stay request. SAF,
Tabs 9, 12. The appellant does not appear to challenge that stay decision on review.
See McCarthy v. International Boundary and Water Commission , 116 M.S.P.R. 594,
¶ 14 (2011) (explaining the process for challenging a stay decision), aff’d, 497 F. App’x
4 (Fed. Cir. 2012).
4 The appellant also submitted a motion for leave to file a supplemental brief regarding
statutory changes and new precedent issued while he was awaiting a Board decision in
this appeal. PFR File, Tab 13 (referencing, e.g., Hessami v. Merit Systems Protection4
ANALYSIS
Once jurisdiction is established in an IRA appeal such as this, an appellant
may be entitled to corrective action if he shows by preponderant evidence that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected
disclosure or activity was a contributing factor in the agency’s decision to take or
fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).5 5 U.S.C.
Board, 979 F.3d 1362 (Fed. Cir. 2020)). The agency has opposed the motion. PFR
File, Tab 19. We find that these matters do not warrant further argument or a different
result. Among other things, the appellant is attempting to present a new constitutional
argument as it relates to the appointment of the administrative judge that presided over
his appeal. PFR File, Tab 13 at 5-7 (referencing Lucia v. Securities and Exchange
Commission, 138 S. Ct. 2044 (2018) (holding that the Securities and Exchange
Commission’s appointment of Administrative Law Judges by staff members, rather than
the Commission itself, violated the Appointments Clause); Helman v. Department of
Veterans Affairs, 856 F.3d 920, 926-29 (Fed. Cir. 2017) (finding that a provision
concerning the finality of an administrative judge’s decision in an action taken under
38 U.S.C. § 713 violated the Appointments Clause and indicating that additional
arguments about the separation of powers were moot)). We will not accept further
argument about his Appointments Clause claim, in particular, because it is belated. See
McClenning v. Department of the Army , 2022 MSPB 3, ¶ 25 (declining to consider a
new Appointments Clause claim that was raised for the first time on review). The
appellant did not raise his constitutional arguments below, in his petition for review, or
in the immediate aftermath of the case precedent he relies upon, throughout which he
was represented by an attorney. Compare IAF, Tab 6 (designating an attorney in June
2016), with PFR File, Tab 11 (withdrawal of the same attorney in 2019). He instead
waited until years after to raise these new constitutional arguments for the first time.
PFR File, Tab 13 (April 2022 motion seeking permission to present new constitutional
arguments). To the extent that the appellant is attempting to present a separation of
powers claim as well, it is similarly belated. Moreover, the Board lacks the authority to
consider such a claim, which must instead be pursued through the judiciary. See Jones
Brothers, Inc. v. Secretary of Labor , 898 F.3d 669, 674 (6th Cir. 2018) (“Each of the
three branches of the [F]ederal [G]overnment . . . has an independent obligation to
interpret the Constitution[,] [b]ut only the Judiciary enjoys the power to invalidate
statutes inconsistent with the Constitution.”) (citing Marbury v. Madison , 5 U.S.
(1 Cranch) 137 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is. . . . If two laws conflict with each other, the courts
must decide on the operation of each.”)).
5 The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465, which went into effect on December 27, 2012, expanded
the grounds on which an IRA appeal may be filed with the Board. See Hooker v.
Department of Veterans Affairs , 120 M.S.P.R. 629, ¶ 9 (2014). Prior to the enactment5
§ 1221(e)(1); 5 C.F.R. § 1201.57(c)(4). However, the Board will not order
corrective action if the agency then demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of
Veterans Affairs , 121 M.S.P.R. 221, ¶ 24 (2014); see Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶¶ 12-14 (2015) (applying the burden-shifting scheme
of 5 U.S.C. § 1221(e) to a claim of reprisal for protected activity under 5 U.S.C.
§ 2302(b)(9)(B)).6
The appellant’s credibility arguments are unavailing.
Before turning to the specific allegations at issue in this appeal, we point
out that the administrative judge made some general credibility findings. ID
at 21-26. She found that the appellant and another witness, the GSBPP Associate
Dean, lacked credibility.7 ID at 22-26. As to the appellant, the administrative
of the WPEA, an appellant could only file an IRA appeal with the Board based on
allegations of whistleblower reprisal under section 2302(b)(8). See Wooten v.
Department of Health and Human Services , 54 M.S.P.R. 143, 146 (1992), superseded by
statute as stated in Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 5
(2014).
The Board has held that the WPEA should be applied when the appellant’s protected
activity occurred before, but the relevant personnel actions occurred after the
December 27, 2012 effective date of the WPEA because the agency knew of the parties’
rights, liabilities, and duties under the WPEA when it took, or failed to take, the
personnel actions. See Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 50-51. Here, the disclosures and activities at issue occurred between December 2010
and February 2015, IAF, Tab 71 at 5-19, and the personnel action occurred in
March 2015, when the agency denied the appellant tenure or promotion, IAF, Tab 1
at 13. Thus, the WPEA applies in this appeal.
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. The changes made by the NDAA do not implicate the issues in this
appeal.
7 The titles and roles of some individuals involved in this appeal changed over the
relevant time period. For example, the same individual is described in the initial
decision as the appellant’s mentor, an Associate Professor, a Professor, and the GSBPP
Associate Dean. E.g., ID at 23, 30 n.9. For the sake of clarity, we will use a single
title.6
judge explained that he appeared excessively rehearsed. ID at 22. She also found
that he often described things with an extreme assuredness that appeared
unwarranted. ID at 24. In addition, the administrative judge found that some of
the appellant’s testimony was either internally inconsistent or inconsistent with
other evidence of record. ID at 23-25.
On review, the appellant’s petition begins with a number of challenges to
the administrative judge’s credibility findings. PFR File, Tab 5 at 4-12.8 As
further explained below, we find these arguments unavailing.
The Board has recognized a number of factors that may be relevant in
resolving issues of credibility. Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987). Some of those factors include a witness’s character, the
contradiction of the witness’s version of events by other evidence, the inherent
improbability of the witness’s version of events, and the witness’s demeanor. Id.
The Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The appellant first argues that the administrative judge erred by deeming
him not credible on any and all matters. PFR File, Tab 5 at 4. However, this
misrepresents the administrative judge’s findings. Although the administrative
judge did provide general credibility observations, she also addressed the
appellant’s credibility as it pertained to specific matters. Compare ID at 21-26,
with ID at 35-38. For example, concerning Activity 3, the appellant described an
exchange in which the GSBPP Dean asked him to advocate on behalf of the
GSBPP and the appellant declined by reciting rules of the South Carolina bar,
8 It appears that the appellant mistakenly included the same credibility arguments in two
separate sections of his petition for review, containing nearly identical language.
Compare PFR File, Tab 5 at 4-12, with id. at 19-28. Although we have considered both,
we will exclusively cite only one.7
verbatim. ID at 35; Hearing Transcript 1 (HT1) at 100-01 (testimony of the
appellant). The administrative judge noted that the GSBPP Dean’s testimony did
not corroborate that claim, and she further found it implausible that the appellant
would recite, verbatim, the South Carolina bar rules. ID at 36; Hearing
Transcript 3 (HT3) at 730 (testimony of the GSBPP Dean). Conversely, the
administrative judge appears to have solely relied on and credited the appellant’s
testimony to find that he did engage in Activity 4. ID at 37-38; HT1 at 118-21
(testimony of the appellant).
The appellant also suggests that, while the Board generally defers to
demeanor-based credibility findings, the deference should be limited when
analyzing whether an agency has met its burden of proving by clear and
convincing evidence that it would have taken the same action in the absence of
protected disclosures or activities. PFR File, Tab 5 at 4-5 (referencing Whitmore
v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012); Mattil v. Department of
State, 118 M.S.P.R. 662, ¶ 29 n.3 (2012)). We disagree. As the Board explained
in Mattil, the U.S. Court of Appeals for the Federal Circuit’s decision in
Whitmore requires an evaluation of all the pertinent evidence in determining
whether an agency met its clear and convincing burden; exclusively relying on the
agency’s testimonial evidence in support of its position—without adequately
considering the appellant’s contrary evidence—is inadequate. Mattil,
118 M.S.P.R. 662, ¶ 29 & n.3 (citing Whitmore, 680 F.3d at 1368 (explaining that
the Board must evaluate the evidence regarding the agency’s burden “in the
aggregate,” considering both evidence that supports and detracts from a
conclusion that the agency met its burden)). Neither case, however, requires that
we afford demeanor-based credibility findings any less deference. See Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285, ¶¶ 31-33 (2013) (discussing
the requirements of Whitmore while still deferring to the administrative judge’s
demeanor-based credibility findings); Durr v. Department of Veterans Affairs ,
119 M.S.P.R. 195, ¶¶ 14-15 (2013) (remanding for an administrative judge to8
comply with the requirements of Whitmore, while recognizing that the
administrative judge may need to resolve conflicting testimony based on the
demeanor of witnesses).
The appellant next presents several arguments that suggest we should
overturn the administrative judge’s demeanor-based credibility findings. For
example, the appellant asserts that the administrative judge improperly faulted his
training as a lawyer and ability to speak at length about certain issues.9 PFR File,
Tab 5 at 5-8. In fact, the administrative judge simply observed that the
appellant’s legal training likely contributed to his testimony, which oftentimes
appeared to be more of a rehearsed legal argument than an explanation of
observed facts. ID at 22. The appellant also argues that the administrative judge
improperly faulted his testimony for “extreme assuredness.” PFR File, Tab 5
at 8-9. However, the administrative judge thoroughly supported that
characterization with examples, ID at 24, which the appellant has not
persuasively disputed. While the appellant disagrees with them, he has not
presented sufficiently sound reasons for overturning the administrative judge’s
well-reasoned demeanor -based credibility findings.
As previously mentioned, in addition to demeanor-based credibility
findings, the administrative judge found that the appellant’s general credibility
was diminished by inconsistencies between his testimony and the remainder of
9 Within this argument, the appellant references his motion for discovery -related
sanctions. PFR File, Tab 5 at 7-8. The administrative judge denied that motion but
concluded that it would be inappropriate to consider some specific evidence because the
agency was unable to produce explanatory documents. ID at 10-21. To the extent that
the appellant’s credibility arguments could also be construed as an argument that the
administrative judge erred in denying his motion for sanctions, we have considered the
matter and find no abuse of discretion. See Defense Intelligence Agency v. Department
of Defense, 122 M.S.P.R. 444, ¶ 16 (2015) (recognizing that administrative judges have
broad discretion to regulate the proceedings before them, including the authority to rule
on discovery motions and to impose sanctions as necessary to serve the ends of justice);
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 9 (recognizing that an
administrative judge’s determination regarding sanctions will not be reversed, absent an
abuse of discretion).9
the record. In an example, the administrative judge explained that the appellant
described a witness’s prior sworn testimony, definitively, in a way that was
inconsistent with the evidence of record. ID at 23-24; compare IAF, Tab 1
at 47-48, and Hearing Transcript 2 (HT2) at 510 (testimony of the appellant),
with IAF, Tab 40 at 197, and HT3 at 686 (testimony of the SEC Chair), 707,
709-10 (testimony of a GSBPP FPC member). Put more simply, the appellant
insisted that the GSBPP Associate Dean advocated against his tenure during the
GSBPP FPC meeting, but the evidence did not support that claim. On review, the
appellant presents a complicated argument to suggest that he merely made a
reasonable and valid deduction. PFR File, Tab 5 at 9-11. However, in doing so,
he seems to acknowledge that multiple firsthand witnesses were asked about the
matter during his Board hearing and none corroborated his claim. Id. at 10-11;
HT3 at 86 (testimony of the SEC Chair), 707, 718-19 (testimony of the GSBPP
Dean); Hearing Transcript 4 (HT4) at 873-74 (testimony of a GSBPP FPC and
DAC member). After considering the appellant’s arguments, we are not
persuaded that the administrative judge’s credibility finding on this point was
erroneous. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
In a final argument concerning the administrative judge’s general
credibility findings, the appellant argues that the administrative judge improperly
blamed him for staying on tenure track after engaging in protected activity. PFR
File, Tab 5 at 11-12. Once again, this misrepresents the administrative judge’s
observations. The administrative judge simply acknowledged the internal
inconsistencies in the appellant’s testimony. ID at 24-25. On the one hand, the
appellant testified that he had no indications that he would have difficulty getting
tenure. HT1 at 27, 30-31 (testimony of the appellant). On the other hand, he
testified that he was afraid tenure would be denied in reprisal for protected10
activity, while more generally describing several individuals who would influence
the tenure decision as unethical and vindictive. E.g., HT1 at 82, 197 (testimony
of the appellant); HT2 at 418 (testimony of the appellant). The administrative
judge’s recognizing this does not impugn the appellant’s decision to remain with
the agency; it correctly recognizes that the appellant’s testimony appeared
somewhat inconsistent.
The administrative judge correctly analyzed the appellant’s prima facie case of
reprisal.
As we previously recognized, the appellant has the burden of proving that
he made a protected disclosure or engaged in protected activity, and that the
protected disclosure or activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action. Supra ¶ 9. On those points, the
administrative judge found that the appellant met his burden of proving that
Activities 1, 4, 5, 7, and a portion of 11 were protected. ID at 28-57. Of those,
she determined that the appellant met his burden of proving that
Activities 5, 7, and a portion of 11 were a contributing factor in the personnel
action at issue—the agency’s decision not to grant him promotion and tenure. ID
at 58-66. On review, the appellant presents arguments pertaining to each of the
12 disclosures and activities he asserted. PFR File, Tab 5 at 13-19. We will
address each in turn.
Activity 1—December 2010 communications regarding the Civilian
Expeditionary Workforce
The appellant’s first alleged activity is generally summarized10 as follows:
the appellant expressed interest in an overseas mission whereby he would provide
procurement advice through the Civilian Expeditionary Workforce. IAF, Tab 40
at 240-42. Agency officials expressed some reservations because it would
interfere with his normal course load. Id. at 244-47. While discussing the matter
10 A more detailed explanation of the appellant’s 12 alleged disclosures and activities is
included in the appellant’s closing brief, IAF, Tab 71 at 5-19, and the initial decision,
ID at 28-57.11
with one of those agency officials (the GSBPP Associate Dean), the appellant
explained that Department of Defense (DOD) policy precluded retaliation for
expressing interest in or actually serving an expeditionary requirement. IAF,
Tab 10 at 264-65. The GSBPP Associate Dean responded by suggesting that the
provision would not apply if the agency denied his request to serve the mission.
Id. The appellant then replied by reasserting that it would. Id.
The administrative judge found that the aforementioned reply message
constituted a protected disclosure but the appellant failed to prove the
contributing factor requirement. ID at 31, 59-61. She reasoned that this activity
was too remote in time to satisfy the knowledge/timing test and the appellant
failed to otherwise establish that his disclosure contributed to the agency’s
promotion and tenure decision. ID at 59-61.
On review, the appellant argues that the administrative judge failed to
account for other officials’ role in the matter. PFR File, Tab 5 at 13. He seems
to suggest that the protected activity extended beyond the email message
identified by the administrative judge as protected to also include the prior
conversations during which agency officials expressed reservations about him
accepting the overseas mission. Id. However, even if it violated DOD policy or
was otherwise inappropriate for those officials to express reservations about him
accepting the overseas mission, the appellant has not clearly shown that he
disclosed the same. Further, even if he had, the appellant has failed to articulate
any basis for us to conclude that these conversations contributed to the agency
denying him promotion and tenure more than 3 years later. See Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 25 (2015) (recognizing that the most
common way to satisfy the contributing factor requirement is through the
knowledge/timing test); see also, e.g., Costello v. Merit Systems Protection
Board, 182 F.3d 1372, 1377 (Fed. Cir. 1999) (finding that “[a] two-year gap
between disclosures and the allegedly retaliatory action is too long an interval to
justify an inference of cause and effect between the two”).12
Activity 2—Late 2011 communications regarding intellectual property
protections
The appellant’s second alleged activity is generally summarized as follows:
a student of the appellant, who was also a Contract Specialist at the NPS, asked
him a question about Government contracting and intellectual property. HT1
at 84-85 (testimony of the appellant). The appellant reportedly responded by
recommending that the school include particular language in contracts to ensure
the Government retains rights to intellectual property developed by contractors,
and he followed up by providing the same recommendation to other agency
officials. Id.; IAF, Tab 10 at 275-76.
The appellant argued that this was a protected disclosure because he was
revealing gross mismanagement or gross waste of funds in the form of millions of
dollars lost if the agency failed to use proper contract language protecting
intellectual property. HT1 at 92-94 (testimony of the appellant). The
administrative judge disagreed. ID at 31-35. She found that, inter alia, the
appellant may have disclosed the potential for, but he did not disclose any actual,
waste of funds. ID at 35.
On review, the appellant appears to argue that existing contracts were
already at risk for a waste of funds when he made this alleged disclosure. PFR
File, Tab 5 at 13. Alternatively, he suggests that his disclosure was protected
even if it revealed the potential for gross mismanagement or a waste of funds. Id.
However, the only evidence the appellant cites for the underlying argument is his
own testimony, agreeing when asked if he “became aware that some contracts for
services provided to NPS did not provide adequate protections for intellectual
property rights.” Id.; HT1 at 82-84 (testimony of the appellant). In other words,
he has not identified any actual contracts that were flawed or actual losses that
resulted.
The Federal Circuit has cautioned that while “a disclosure of an impending
action can qualify . . . we do not intend to convey the idea that any mere thought,13
suggestion, or discussion of an action that someone might consider to be a
violation of a law, rule, or regulation is a justification for a whistleblower
complaint. Discussion among employees and supervisors concerning various
possible courses of action is healthy and normal.” Reid v. Merit Systems
Protection Board , 508 F.3d 674, 678 (Fed. Cir. 2007). The context here suggests
that the appellant simply answered a legal question by providing legal advice of a
best practice. It does not suggest that he disclosed or reasonably believed that he
was disclosing a violation of law, gross mismanagement, gross waste of funds, or
any other category of protected disclosure.
Activity 3—Refused request for personal representation
The appellant’s third alleged activity is generally summarized as follows:
the GSBPP Dean reportedly asked the appellant to provide professional advisory
service and advocacy for the GSBPP, to oppose the agency at large. HT1
at 99-101 (testimony of the appellant). The appellant reportedly declined,
indicating that it would violate an applicable rule from the South Carolina bar,
which he recited verbatim. Id.
The administrative judge recognized that the GSBPP Dean provided
testimony that contradicted the appellant’s claim. ID at 36; HT3 at 730
(testimony of the GSBPP Dean). She also concluded that the appellant’s
testimony on the matter, particularly the claim that he recited the South Carolina
bar rule, verbatim, was not plausible. ID at 36. Accordingly, the administrative
judge found that he failed to prove, by preponderant evidence, that this
conversation even occurred. Id. She alternatively found that, even if the
conversation did occur as alleged by the appellant, it did not amount to a
protected disclosure or activity. ID at 37.
On review, the appellant challenges the administrative judge’s findings by
asserting that it was more implausible that he did not know the bar rule, verbatim,
given his prior employment history as an in-house lawyer at a corporation and
counsel for a U.S. Senate committee. PFR File, Tab 5 at 14; IAF, Tab 20 at 90.14
In essence, the appellant is asking that we overturn the administrative judge’s
well-reasoned credibility findings, but we find no basis for doing so. See Crosby,
74 M.S.P.R. at 105-06.
Activity 4—February 2012 communications with the Inspector General
The appellant’s fourth alleged activity is generally summarized as follows:
the appellant answered questions from the agency’s Inspector General in concert
with an investigation as to whether the NPS Provost and President accepted meals
and alcohol as gifts from a prohibited source. HT1 at 118-22 (testimony of the
appellant).
The administrative judge found that this activity was protected by
section 2302(b)(9)(C). ID at 37-38. However, she found that the appellant failed
to prove that it was a contributing factor in the agency’s promotion and tenure
decision because there was no evidence that anyone who participated in the tenure
decision had knowledge of this activity. ID at 61-62.
On review, the appellant’s sole argument pertaining to Activity 4 is that
while the administrative judge correctly found his activity protected, she “omitted
the context: NPS/GSBPP culture of heavy reliance on slush funds funded by
illegal gifts.” PFR File, Tab 5 at 14. As follows, we modify the initial decision
to supplement the administrative judge’s contributing factor analysis for this
protected activity, while still finding that the appellant did not meet his burden.
An appellant may establish the contributing factor criterion through the
knowledge/timing test, i.e., proof that the official taking the personnel action
knew of the whistleblowing and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the
whistleblowing was a contributing factor in the personnel action. 5 U.S.C.
§ 1221(e)(1). But the knowledge/timing test is not the only way to demonstrate
the contributing factor element. Dorney v. Department of the Army , 117 M.S.P.R.
480, ¶ 14 (2012). The Board will also consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the15
personnel action, whether the whistleblowing was personally directed towards the
officials taking the action, or whether these individuals had a desire or motive to
retaliate against the appellant. Id., ¶ 15.
The administrative judge recognized these standards when informing the
parties of their burdens of proof in this appeal. IAF, Tab 3 at 4-5. She also
recounted the same in the initial decision. ID at 58-59. However, for Activity 4,
the administrative judge solely discussed the knowledge/timing test while finding
that the appellant failed to prove the contributing factor criterion. ID at 61-62.
Looking beyond the knowledge/timing test, we find that the appellant has
not otherwise established the contributing factor criterion for Activity 4. As
detailed throughout this decision and the initial decision, evidence pertaining to
the agency’s reasons for taking the personnel action is strong. ID at 66-100.
Plus, Activity 4 was not personally directed towards the officials taking the
actions at issue in this appeal. Activity 4 was instead directed toward a prior NPS
Provost and President that were removed, i.e., ones that preceded the NPS
Provost and President that played roles in the personnel action before us.
Compare HT1 at 118, 122 (testimony of the appellant, describing the former NPS
Provost and President as being removed by the agency as a result of the 2012
investigation in which he participated), 98, 196 (testimony of the appellant,
describing the new Provost and President who ruled on the appellant’s tenure as
starting in the summer of 2013), with IAF, Tab 20 at 88-89 (2015 decision, signed
by the new NPS Provost and President, denying the appellant tenure). Finally,
the appellant has not directed us to persuasive argument or evidence that the new
NPS Provost and President had a desire or motive to retaliate against the
appellant for Activity 4. His generic and cursory claim about the culture at the
agency is not one that suffices for purposes of finding that Activity 4, which
occurred years earlier and concerned other individuals, improperly motivated
those responsible for denying him promotion and tenure.16
Activity 5—Legal advice regarding Acquisition Chair task order
The appellant’s fifth alleged activity is generally summarized as follows:
agency officials wanted to contract with a retired military officer to serve as its
Chair of Acquisition. HT1 at 129 (testimony of the appellant). Although the
agency had done the same in years past, a question arose as to whether the
contract would be improper because the work requested was inherently
governmental. HT2 at 564-65 (testimony of the NPS Contracting Officer); HT3
at 730-31 (testimony of the GSBPP Dean), 790-91 (testimony of the GSBPP
Associate Dean). The official in charge of requesting the contractual services, the
GSBPP Associate Dean, asked the appellant for his legal opinion on the matter
and the appellant indicated that it would, in fact, be improper. HT1 at 129-32
(testimony of the appellant); IAF, Tab 10 at 320-26, 329-33.
The administrative judge found that the appellant proved that this was a
protected disclosure. ID at 38-40. She explained that he had a reasonable belief
that the information contained in his conversations about the contract revealed a
violation of applicable contracting regulations. ID at 40. The administrative
judge further found that the appellant proved that this disclosure was a
contributing factor to the agency’s promotion and tenure decision, based on the
knowledge/timing test. ID at 62-63.
Even though the administrative judge found that the appellant met his
burden for Activity 5, the appellant’s petition for review contains an argument
about the same. As best as we can understand, the appellant alleges that the
administrative judge mischaracterized the nature of the conversation between him
and the GSBPP Associate Dean, during which the appellant made the disclosure.
PFR File, Tab 5 at 14-15. While the administrative judge surmised that the
GSBPP Associate Dean was merely trying to understand why the proposed
contract was improper, when it had been accepted in years past, ID at 40, the
appellant suggests that he instead had nefarious intentions of trying to circumvent
hiring policies to pay the Chair of Acquisition far more than would be permissible17
if he were a Government employee, PFR File, Tab 5 at 14-15. Although we will
further discuss the motive to retaliate below, we are not persuaded by the
appellant’s speculation on this point. The administrative judge expressly
recognized that the appellant’s disclosure contributed to the GSBPP Associate
Dean having the unexpected and significant burden of not being able to contract
for the Chair of Acquisition. ID at 103.
Activity 6—Objection to advice to Embassy Suites
The appellant’s sixth alleged activity is generally summarized as follows:
after the NPS contracted with the Embassy Suites to host a symposium, the NPS
delayed payment because of an accounting matter. HT3 at 590-92 (testimony of
the NPS Contracting Officer). According to the appellant, the GSBPP Associate
Dean approached him after a Bible study with a plan to get rid of the NPS
Contracting Officer for the delay by having the Embassy Suites put the contract
into collections. Id.; HT1 at 186-89 (testimony of the appellant). The appellant
reportedly responded by indicating that this would violate 18 U.S.C. § 205.11
HT1 at 189 (testimony of the appellant).
The administrative judge found that the appellant failed to prove that this
alleged disclosure occurred. ID at 41-44. She found his testimony on the matter
not credible. ID at 42. Alternatively, she found that, even if the conversation
occurred as the appellant alleged, he did not have a reasonable belief that the plan
11 Section 205 of Title 18 of the U.S. Code provides, in pertinent part, as follows:
(a) Whoever, being an officer or employee of the United States in the executive,
legislative, or judicial branch of the Government or in any agency of the United States,
other than in the proper discharge of his official duties—
(1) acts as agent or attorney for prosecuting any claim against the United States, or
receives any gratuity, or any share of or interest in any such claim, in consideration of
assistance in the prosecution of such claim; or
(2) acts as agent or attorney for anyone before any department, agency, court, court-
martial, officer, or civil, military, or naval commission in connection with any covered
matter in which the United States is a party or has a direct and substantial interest;
shall be subject to the penalties set forth in section 216 of this title.18
violated 18 U.S.C. § 205. ID at 43; see Mithen v. Department of Veterans Affairs ,
122 M.S.P.R. 489, ¶ 24 (2015) (recognizing that an individual making a
disclosure may be protected from retaliation for whistleblowing based on his
reasonable belief that his disclosure evidenced one or more of the categories of
wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his belief is mistaken),
aff’d per curiam , 652 F. App’x 971 (Fed. Cir. 2016). The administrative judge
explained that while that provision generally prohibits a Federal employee from
acting as an agent or attorney for prosecuting any claim against the United States
or receiving any gratuity or share of such claim, the alleged plan at issue was to
merely advise the Embassy Suites of an option it could pursue to expedite the
payment it was owed. ID at 43-44.
On review, the appellant challenges the administrative judge’s credibility
findings, but he has not presented any persuasive basis for us to disturb them.
PFR File, Tab 5 at 15-16. The appellant also reasserts that the alleged plan to
inform the Embassy Suites that it could file a collection action to recoup the
payment it was owed would have violated 18 U.S.C. § 205, but we are not
persuaded. Id. Even if the GSBPP Associate Dean did have a conversation with
the appellant, indicating that he would recommend to the Embassy Suites that it
could speed up payment by “put[ting] it in collections,” as the appellant alleges, a
disinterested observer would not consider that a violation of 18 U.S.C. § 205.
HT1 at 188 (testimony of the appellant); see Mithen, 122 M.S.P.R. 489, ¶ 24
(recognizing that the test for reasonableness 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 of the agency evidence the
wrongdoing disclosed); Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 9 (2013) (considering an appellant’s lack of special expertise in legal
matters as a factor in the reasonableness of her belief that an agency violated a
law, rule, or regulation). 19
Activity 7—Communications regarding the McGraw-Hill company contract
The appellant’s seventh alleged activity is generally summarized as
follows: agency officials asked the appellant to review a proposed contract with
McGraw-Hill. HT1 at 199-202 (testimony of the appellant); IAF, Tab 10
at 299-307. In reviewing the proposed contract, the appellant identified and
reported a problem with an unlimited indemnity provision in the agreement. HT1
at 203-06 (testimony of the appellant); IAF, Tab 10 at 299-307.
The administrative judge found that the appellant proved that Activity 7
was a protected disclosure because it revealed that the agency’s proposed contract
would violate the Anti-Deficiency Act. ID at 44-45. She also found that the
appellant met his burden of proving that this disclosure was a contributing factor
in the agency’s promotion and tenure decision, based on the knowledge/timing
test. ID at 63-64.
Although the administrative judge found that the appellant met his burden
regarding Activity 7, she included a footnote explaining that the appellant
provided misleading testimony about the dangers of the proposed indemnity
provision. ID at 45, n.13. In short, the appellant estimated that the indemnity
provision posed a financial risk of up to $5,000,000,000, but the administrative
judge found that his estimate was based on assumptions that were, at best,
strained. Id. On review, the appellant essentially disagrees, asserting that the
administrative judge improperly “berated” him for his belief as to the financial
risk. PFR File, Tab 5 at 16. We find nothing improper about the administrative
judge’s analysis. She simply recognized that while the appellant met his burden
for Activity 7, some of his testimony about the matter was questionable.
Activity 8—Refusal to participate in media efforts to discredit an agency
Inspector General report
The appellant’s eighth alleged activity is generally summarized as follows:
several NPS faculty members disagreed with the findings included in an Inspector
General report about the NPS Provost accepting gifts from a prohibited source.20
HT3 at 737 (testimony of the GSBPP Dean). During efforts to set the record
straight, two members of the faculty asked the appellant to write an editorial
arguing that the NPS Provost’s actions were not illegal, but the appellant
declined. HT1 at 229-37 (testimony of the appellant). According to the
appellant, he was refusing to do something that would have violated the law. Id.
at 236-37; see Consolidated Appropriations Act, 2012, Pub. L. No. 112 -74,
125 Stat. 786, 804 § 8001 (“No part of any appropriation contained in this Act
shall be used for publicity or propaganda purposes not authorized by the
Congress”).
The administrative judge found that the appellant failed to prove that he
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(D). ID at 45-48. This
provision prohibits retaliation for an employee’s refusal to obey an order that
would require he violate a law. 5 U.S.C. § 2302(b)(9)(D). In short, the
administrative judge concluded that the appellant may have been asked to write
an editorial, but he failed to prove that those individuals ordered him to do so
during working hours in potential violation of law. ID at 46-48. Therefore, his
refusal was not protected by section 2302(b)(9)(D), because that provision applies
only in the context of an order, and only if that order is unlawful.12 Id.
On review, the appellant reasserts that while the professors who made the
request were not in his immediate chain of command, they nonetheless had the
authority to tell him what to do. PFR File, Tab 5 at 16-17. He further argues that
12 As the administrative judge correctly recognized, at the time the appellant filed this
appeal, section 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.” ID at 46. The Federal Circuit considered the provision and held that
“law” only included statutes. Rainey v. Merit Systems Protection Board , 824 F.3d
1359, 1361-62, 1364-65 (Fed. Cir. 2016). However, on June 14, 2017, while the
appellant’s petition for review was pending in the instant appeal, the President signed
an amendment to section 2302(b)(9)(D), so that it now provides protections for
“refusing to obey an order that would require the individual to violate a law, rule, or
regulation.” Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 12. Nevertheless,
the Board has determined that this expansion does not apply to events occurring before
its enactment, and so it does not change the analysis in this case. Id., ¶ 19. 21
he interpreted their request as not only an order, but one to complete the task
during working hours, not on his personal time. Id. However, the appellant has
not identified any persuasive evidence in support of his position. In fact, it
appears that the only evidence supporting his version of the events is the
appellant’s own testimony, which the administrative judge found not credible,
based on his demeanor, evasiveness, and the inherent improbability of his version
of events. ID at 47 (referencing HT1 at 229-37 (testimony of the appellant); HT2
at 414-16 (testimony of the appellant)). We discern no basis for overturning
those findings. See Haebe, 288 F.3d at 1301.
Activity 9—The appellant’s research as an Assistant Professor
The appellant’s ninth alleged activity is generally summarized as follows:
the appellant’s academic research and writing efforts included the topic of
contracting between the agency and small businesses. HT1 at 240-45 (testimony
of the appellant). According to the appellant, the resulting papers included
protected disclosures because they described agency shortcomings, such as the
NPS failing to reach its stated goal of the percentage of contract dollars spent on
contracts with small businesses. IAF, Tab 10 at 349-408, 645-824, Tab 71
at 15-16.
The administrative judge found that the appellant failed to prove that he
reasonably believed the contents of his research papers disclosed a violation of
law, rule, or regulation. ID at 48-50. She explained that he essentially had
focused on the barriers that small businesses faced in fully participating in
Government contracting and what NPS could do to better facilitate those efforts.
ID at 49. The administrative judge further found that while the research papers
discussed the agency’s small business goals, they did not include any assertion
that the agency violated associated regulations. ID at 50.
On review, the appellant suggests that while the research papers at issue
did not disclose specific violations of law or regulation, they did disclose how the
agency failed to meet goals, policies, or rules. PFR File, Tab 5 at 17.22
Specifically, he alleges that his report “called on NPS to implement the required
controls, outreach, effective competition, and warned that Senior Executives in
charge of NPS must improve practices or risk poor ratings on compliance and
spending goal increases.” Id. However, we reaffirm that it was the appellant’s
burden of proving, by preponderant evidence, that he made a protected disclosure.
We find nothing in his argument on review to reach a conclusion different than
the administrative judge concerning Activity 9. While the appellant has presented
vague assertions that the agency needed to improve when it came to small
business contracting, and his research papers contain much more complicated,
academic discussions of the same, he has not clearly articulated and identified
when and how he made a specific disclosure of a violated law, rule, or regulation.
See generally Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006)
(recognizing that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing regarding broad or imprecise matters).
Activity 10—Objecting to an order to fail a student’s thesis
The appellant’s tenth alleged activity is generally summarized as follows:
for one particular student, the appellant both supervised her thesis and
co-authored a separate paper with her that included the thesis. HT1 at 250
(testimony of the appellant). After the appellant submitted the thesis to the
Acquisition Research Program for editing support, the appellant alleges that the
GSBPP Associate Dean directed him to fail the student, remove her from the
submission, or both, and the appellant refused. Id. at 251; HT2 at 283-84
(testimony of the appellant).
The administrative judge found that the appellant failed to prove that
Activity 10 was protected. ID at 50-53. The appellant characterized the
interaction as him refusing to obey an order that would violate the law. IAF,
Tab 71 at 16. Instead, the administrative judge found that the evidence suggested
the GSBPP Associate Dean had simply expressed concern and confusion as to
why the appellant had submitted the student’s thesis for editing support. ID23
at 51-52. In essence, while the appellant had funding to support the editing of his
own work, the student’s work did not appear to qualify, so the GSBPP Associate
Dean questioned whether the appellant either had done the student’s work himself
or had submitted the student’s work as his own. Id. Alternatively, the
administrative judge found that, even if the GSBPP Associate Dean had ordered
the appellant to fail the student, the appellant did not establish how doing so
would have violated the law. ID at 52-53.
On review, the appellant argues that funded researchers routinely work in
conjunction with students and the record contains no evidence of a ban on doing
so. PFR File, Tab 5 at 18. However, even if true, that does not require a
different result. The administrative judge found that the appellant did not show
that the GSBPP Associate Dean gave him any order, much less an unlawful one.
ID at 51-53. The appellant’s assertions concerning the propriety of his
submission for editing support do not address either of those dispositive
conclusions.
Activity 11—Perceiving the appellant as an associate of whistleblowers
The appellant’s eleventh alleged activity is generally summarized as
follows: according to the appellant, two agency employees, a Contract Specialist
and the Director of the NPS Contracting Directorate, were perceived as
whistleblowers for a number of reasons. HT2 at 298-99 (testimony of the
appellant). He further alleged that the agency perceived him as an associate of
those individuals. Id.
Regarding the Contract Specialist, the administrative judge found that she
did qualify as a whistleblower based on a paper she authored that included claims
of Anti-Deficiency Act violations; she did not qualify as a whistleblower on the
other bases asserted by the appellant: being involved either in contracts that were
highlighted in a presentation about bad contracting, or in an Inspector General
investigation. ID at 54-56. Regarding the Director of the NPS Contracting
Directorate, the administrative judge found that she did qualify as a24
whistleblower based on evidence that she cooperated with an Inspector General
investigation. ID at 55-56. She also found that the appellant proved that he was
perceived as an associate of those whistleblowers. ID at 56. Finally, the
administrative judge found that the appellant’s association with the Contract
Specialist was a contributing factor in the agency’s promotion and tenure
decision, but not his association with the Director of the NPS Contracting
Directorate. ID at 64-65.
On review, the appellant argues that the administrative judge discounted
the whistleblowing of the Contract Specialist and the Director of the NPS
Contracting Directorate, “baselessly speculating they might be incompetent.”
PFR File, Tab 5 at 18-19. Once again, the relevance of this argument is not
readily apparent, and it generally misrepresents the administrative judge’s
findings. As explained above, the administrative judge determined that the
appellant failed to prove that the Contract Specialist was perceived as a
whistleblower in connection with an ad hoc committee’s presentation about bad
contracting within the NPS. ID at 54-55. Based on her review of that
presentation, the administrative judge concluded that the presentation may have
portrayed the Contract Specialist—rightly or wrongly—as incompetent, but did
not portray her as a whistleblower. ID at 55; IAF, Tab 10 at 843-44. The
appellant’s argument on review does not warrant a different conclusion.
Activity 12—Advice regarding the appropriate contracting vehicle
The appellant’s twelfth alleged activity is generally summarized as follows:
the GSBPP Associate Dean tasked the appellant with determining whether the
agency could require that research funds be awarded through contracts rather than
grants. HT2 at 304-06 (testimony of the appellant). The appellant researched the
matter and provided a response. Id. at 308-09.
The administrative judge found that the appellant essentially verified
another agency official’s legal opinion; his communications did not reveal a
violation of law, rule, regulation, or other protected disclosure. ID at 57. She25
further found that while the appellant testified that he believed the GSBPP
Associate Dean was asking the question for nefarious purposes, he did not
disclose the same. Id.
On review, the appellant asserts that the administrative judge “ruled that [a]
disclosure within legal advice is unprotected” when, in fact, Government lawyers’
advice can be protected. PFR File, Tab 5 at 19. However, the administrative
judge did not find that lawyerly advice cannot be protected; rather, she found that
the appellant’s answer when asked to verify a legal opinion was not a protected
disclosure of agency wrongdoing. ID at 57. The appellant has failed to present
us with any reason to conclude otherwise. Based on his own testimony about the
matter, it appears that the appellant did not disclose that a violation of law, rule,
regulation, or other impropriety had occurred; he simply provided an answer
when asked what the applicable laws, rules, and regulations required. HT2 at 309
(testimony of the appellant).
In sum, as detailed above, we agree with the administrative judge’s
findings as to the appellant’s alleged protected activities and whether he met his
burden to prove those activities contributed to the agency’s decision to deny him
tenure and promotion.
The administrative judge correctly found that the agency proved, by clear and
convincing evidence, that it would have denied the appellant a promotion and
tenure in the absence of his protected activities.
When an appellant meets his burden to establish a prima facie case of
reprisal for whistleblowing, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 26 (2016). Clear and convincing evidence is “that measure
or degree of proof that produces in the mind of the trier of fact a firm belief as to
the allegations sought to be established.” 5 C.F.R. § 1209.4(e). In determining
whether an agency has met this burden, the Board will consider the following26
factors: (1) the strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999); Scoggins, 123 M.S.P.R. 592, ¶ 26. The Federal
Circuit has held that “[e]vidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusion.”
Whitmore, 680 F.3d at 1368; Scoggins, 123 M.S.P.R. 592, ¶ 26.
The administrative judge conducted an extensive analysis of the three Carr
factors to determine that the agency met its burden. ID at 66-112. The majority
of that analysis involved the first Carr factor. The administrative judge found
that the agency had strong evidence in support of its promotion and tenure
decision. ID at 66-100. For the second Carr factor, she found that several
individuals involved in the agency’s promotion and tenure decision had varying
degrees of motive to retaliate, but that motive was not strong for any. ID
at 100-10. Finally, she found that there was little evidence of comparators for
purposes of the third Carr factor, and that evidence which was available rendered
the factor neutral. ID at 110-11. On balance, the administrative judge concluded
that the evidence in support of the agency’s promotion and tenure decision was
far stronger than the motive to retaliate. ID at 111-12.
On review, the appellant first argues that the administrative judge’s
analysis of the Carr factors is flawed because she placed the burden of proof on
him, rather than on the agency. PFR File, Tab 5 at 28. We disagree. The
administrative judge utilized the proper standard, requiring that the agency prove
that it would have taken the same action notwithstanding the appellant’s protected
activities. E.g., ID at 66. While she did discuss the appellant’s arguments and27
matters that detracted from the agency’s case, consistent with the requirements of
Whitmore, she did not improperly place the burden of proof on the appellant.
The appellant next disputes the administrative judge’s findings concerning
the first Carr factor by reasserting that his performance warranted promotion and
tenure. PFR File, Tab 5 at 29-48. Specifically, he disagrees with her finding that
the SEC gave strong reasons for its decision to recommend the appellant with
reservations. On this point, the appellant essentially disputes each of the
administrative judge’s findings by presenting separate arguments for his
performance, including the number and quality of his publications in academic
journals, id. at 29-33, the number of theses he advised, id. at 34-35, the amount of
funding he secured, id. at 35-36, the quality of his teaching, id. at 36-40, his
service, id. at 40-41, his collegiality, id. at 42-45, and his prior performance
ratings, id. at 46-47. Although we have considered each of his arguments, we are
not persuaded, as further explained in the examples below.
As previously recognized, the SEC is one of many groups or individuals
that considered the appellant’s qualifications before “unanimously
recommend[ing] with reservation” that he be awarded tenure. Supra ¶ 4; IAF,
Tab 13 at 83-86. In addition to providing the first significant evaluation of a
promotion and tenure candidate, upon which subsequent evaluations may rely, the
record suggests that the SEC’s evaluation is the most extensive. The SEC gathers
information from various sources, such as former students and peers at outside
institutions, before issuing a detailed report about the candidate’s strengths and
weaknesses. Kidalov v. Department of the Navy , MSPB Docket No. SF-1221-16-
0530-S-1, Stay Appeal File (SAF), Tab 11 at 430-35. In the appellant’s case, the
SEC’s detailed assessment recognized some areas in which he had provided
meaningful contributions, and others in which the SEC deemed him to have
struggled. For example, the SEC concluded that his distance learning work
needed improvement and reviews of his collegiality were mixed because some
peers found that he was not reliable or timely in completing tasks. IAF, Tab 1328
at 86. In another example, the SEC found that while his research was highly
valued among his peers, he had “limited impact in the traditional academic
literature.” Id.
As he did below, the appellant argues that it was improper for the SEC to
issue its recommendation with reservations, which he characterizes as a “scarlet
letter.” PFR File, Tab 5 at 29-30. However, the administrative judge provided a
detailed analysis of the SEC, how it came up with its final assessment, and the
requirement that it provide an “objective evaluation” regarding the appellant’s
candidacy for promotion and tenure. ID at 76-79. Despite the appellant’s
suggestion that the SEC should have provided a more definitive recommendation,
the administrative judge found nothing in the agency’s policies preventing the
SEC from expressing reservations as part of its conclusion. ID at 78-79; SAF,
Tab 11 at 429-35. On review, the appellant points to the instruction for a “clear
recommendation.” PFR File, Tab 5 at 29; IAF, Tab 13 at 70. However, we are
not persuaded that a “clear recommendation” requires a simple yes or no, devoid
of any qualifiers or other explanatory signals.
In another example, we note that the administrative judge provided a
lengthy analysis of the appellant’s and his peers’ publications. ID at 96-99.
Among other things, she found that the appellant was advised to increase the rate
of publication during his third-year review, but he failed to do so. ID at 96. She
further found that the appellant produced fewer publications than two specific
comparators he identified. ID at 96-97. The administrative judge also recognized
that his peers gave mixed reviews on the quality of the journals in which he
published. ID at 98-99. While the appellant asserted that the GSBPP Associate
Dean told him in which journals to publish, the administrative judge found that
testimony not credible. Id.
On review, the appellant disagrees with each of the administrative judge’s
findings concerning the quantity and quality of the journals in which he
published. PFR File, Tab 5 at 30-33. However, we find his arguments are not29
persuasive. Moreover, we agree with the administrative judge’s broader
conclusion—the appellant continually treats the promotion and tenure decision as
if it were based on his accomplishing a set number of tasks, but that
oversimplifies the agency’s holistic decision-making process. ID at 71-72, 111.
For example, the appellant repeatedly has argued that seven was the target
number of publications for promotion and tenure, and he met that target. PFR
File, Tab 5 at 30-32; IAF, Tab 71 at 23. However, he seems to have no evidence,
other than his own testimony, to support that assertion. HT1 at 43 (testimony of
the appellant); HT2 at 400-01 (testimony of the appellant). After reviewing
agency policy regarding promotion and tenure, we find no set target number of
publications. See, e.g., SAF, Tab 11 at 410-14; IAF, Tab 13 at 53-55.
To be clear, the appellant’s publications were, in many respects, praised. A
notable example of this is reflected in the SEC evaluation of his candidacy for
promotion and tenure, which included “predominantly positive” reviews by both
agency officials and members of academia from outside the agency. IAF, Tab 13
at 84-86. However, one external reviewer from Ohio State University explained
that while the appellant’s scholarly activity was very good, it would not meet his
university’s standards for tenure “due to the quality of the journals in which he
placed his research, the rate of productivity, and number of citations to his work
by other scholars.” Id. at 85-86. As previously mentioned, the SEC gathers such
external reviews of a tenure candidate’s research as part of its recommendation.
SAF, Tab 11 at 431. The record paints a similar picture in other aspects of the
appellant’s candidacy: while he was largely considered an effective educator,
officials found his teaching in a distance learning capacity lacking; while some of
his peers considered the appellant a good colleague, others found him unreliable
and untimely. IAF, Tab 13 at 86. In other words, the appellant’s reviews were
largely good, but mixed. Although it appears unlikely that the agency would have
denied the appellant promotion and tenure based on any one of his perceived30
deficiencies, their sum caused a notable number of evaluators to recommend that
his candidacy be denied.
As thoroughly detailed throughout the initial decision, the record contains
substantial evidence of the appellant’s mixed reviews and the underlying causes
for concern about his candidacy, both in terms of documentation and witness
testimony that the administrative judge found credible. A small sampling of that
evidence includes testimony from the SEC Chair about her unfavorable view of
the appellant’s publications and teaching, HT3 at 645, 649-51 (testimony of the
SEC Chair), testimony about faculty observations of the appellant’s teaching and
the resulting concerns, HT3 at 752-55 (testimony of an SEC member),
documentation of the appellant’s untimeliness, even in the context of his
promotion and tenure submissions, IAF, Tab 43 at 29, 31-33, 49-55, and
documentation of distance learning students’ complaints about many aspects of
his teaching, such as his untimeliness and disorganization, id. at 66, 75-76.
While the appellant insists that he deserved promotion and tenure, we agree with
the administrative judge’s conclusion that the agency presented strong evidence
in support of its decision.
The appellant’s final arguments concern the administrative judge’s
conclusions regarding the second Carr factor—the motive to retaliate. PFR File,
Tab 5 at 48-60. To recall, the appellant presented a prima facie case of reprisal
concerning the following activities:
Activity 5—the appellant’s disclosure to the GSBPP Associate Dean
that a proposed contract for a Chair of Acquisition would violate
applicable contracting regulations in response to a question about the
same;
Activity 7—the appellant’s disclosure to agency officials that a
proposed McGraw-Hill contract would violate the Anti-Deficiency Act
in response to a request from the GSBPP Dean that he review the
contract; and
Activity 11—the appellant’s association with a whistleblower, who was
both a student and Contract Specialist for the agency, who disclosed
Anti-Deficiency Act violations in a paper she authored. 31
Supra ¶¶ 35-37, 41-43, 53-54.
To also recall, the appellant’s qualifications for promotion and tenure were
considered by and evaluated as follows:
(1) the SEC “unanimously recommend[ed] with reservation” that he
be granted tenure;
(2) the GSBPP FPC voted 13 in favor and 5 opposed to granting the
appellant tenure;
(3) the Dean of the GSBPP recommended tenure;
(4) the NPS FPC voted 11 in favor and 2 opposed to granting tenure;
(5) the DAC voted 1 in favor and 3 opposed to granting tenure;
(6) the NPS Provost recommended that the appellant not be granted
tenure; and
(7) the NPS President denied the appellant promotion and tenure.
Supra ¶¶ 3-5.
The administrative judge first found that the SEC members themselves had
little, if any, awareness of the appellant’s protected activity or motive to retaliate.
ID at 100-01. However, she acknowledged that the SEC relied on information
from two pertinent individuals, an individual who once served as the appellant’s
Area Chair and the GSBPP Associate Dean. ID at 101. For the Area Chair, the
administrative judge found no evidence he knew of Activities 5, 7, or 11. ID
at 102. For the GSBPP Associate Dean, she found that he had the greatest motive
to retaliate, given his knowledge of and involvement in Activity 5, but that
motive still was not strong. ID at 103-04. The administrative judge further
found no evidence that the GSBPP Associate Dean was even aware of
Activities 7 or 11. ID at 104.
Moving past the SEC to other evaluators of the appellant’s promotion and
tenure candidacy, the administrative judge found no evidence of the official
responsible for the GSBPP FPC process having been aware of the appellant’s
protected activities. ID at 104-05. Next, she found that the GSBPP Dean was
aware of Activities 5 and 7, and had some limited motive to retaliate, but he32
actually recommended the appellant be granted tenure. ID at 105-06. The
administrative judge then found that a Professor who was involved in both the
NPS FPC and the DAC was aware of Activity 7 and the underlying contract, and
had some limited motive to retaliate. ID at 107-08. She next found no evidence
that the DAC members who voted against the appellant’s tenure or the Provost
who recommended he not be granted tenure had any knowledge of his protected
activities. ID at 109. Finally, the administrative judge found that the President,
who made the final decision to deny the appellant tenure, was only aware of
Activity 11. Id. She further found that the context suggested that the President
had little motive to retaliate and was likely considering that activity a positive
because it was ultimately bringing renown to the NPS. Id.
On review, the appellant argues that the record presents a convincing
mosaic of strong retaliatory motives for numerous officials involved in the
promotion and tenure process, such as the NPS President, the Provost, various
Deans, Acting Deans, or Associate Deans, the members of the NPS FPC, and the
members of the DAC. PFR File, Tab 5 at 48-60. In large part, the appellant’s
argument relies on cases wherein the Board found that an individual’s disclosures
of subordinate employees’ wrongdoing created a motive to retaliate on the part of
their supervisors. Id. at 49; see, e.g., Chavez, 120 M.S.P.R. 285, ¶¶ 32-33.
According to the appellant, “Board law makes clear [that] these motives are
strong . . . as a matter of law.” PFR File, Tab 5 at 49. We disagree.
While it is true that officials who are not directly implicated in a protected
disclosure may still have a motive to retaliate, these matters are considered on a
case-by-case basis. See, e.g., Robinson v. Department of Veterans Affairs ,
923 F.3d 1004, 1019 -20 (Fed. Cir. 2019) (discussing a professional motive to
retaliate when assessing the second Carr factor); Whitmore, 680 F.3d at 1371
(recognizing that an individual may have a motive to retaliate for a protected
disclosure, even if “outside that whistleblower’s chain of command, not directly
involved in alleged retaliatory actions, and not personally named in the33
whistleblower’s disclosure”); Runstrom v. Department of Veterans Affairs ,
123 M.S.P.R. 169, ¶ 17 (2016) (finding little evidence of retaliatory motive for
the whistleblower’s supervisor; no evidence that another official was even aware
of the whistleblowing; and evidence that the disclosure did not reflect negatively
on the one official who potentially had a motive to retaliate based on his
supervising the alleged wrongdoer, because the agency quickly investigated and
found no wrongdoing). Moreover, the appellant’s arguments in this regard omit
pertinent facts and findings by the administrative judge which run counter to the
appellant’s assertions. For example, while the appellant argues that the Provost
had a strong motive to retaliate by virtue of his position, PFR File, Tab 5 at 49, he
seems to ignore the administrative judge’s conclusion that the Provost was
altogether unaware of his protected activities, ID at 109. While the appellant
argues that the GSBPP Professor who sat on the DAC also had a strong motive to
retaliate by virtue of his position, PFR File, Tab 5 at 49, he seems to ignore the
fact that the Professor at issue was the only member of the DAC who voted in
favor of his candidacy, IAF, Tab 20 at 83, 85; HT4 at 857-62 (testimony of the
DAC member).
The appellant also presents extensive arguments alleging that the
administrative judge failed to properly account for the financial motives of
individuals involved in the agency’s promotion and tenure decision. PFR File,
Tab 5 at 49-54. As an example, even though he has alleged that he saved the
agency as much as $5,000,000,000 by disclosing that a proposed McGraw-Hill
contract would violate the Anti-Deficiency Act (Activity 7), he suggests that
agency officials were motivated to retaliate for that disclosure because it
threatened the agency’s funding. Compare id. at 50, with HT1 at 212 (testimony
of the appellant). He also discusses the findings of financial improprieties by the
agency’s Inspector General, suggesting that those instances of wrongdoing
support his case, without clearly articulating how the one has anything to do with
the other. PFR File, Tab 5 at 50-53. Again, we are not persuaded. The34
administrative judge provided a well-reasoned analysis of the pertinent officials
and their potential motive to retaliate. ID at 100-10.
Although the appellant’s petition for review references the third Carr
factor, it does not clearly articulate any argument about the same. PFR File,
Tab 5 at 28. In short, the administrative judge found that there was limited
evidence of comparators, but that the evidence which was available showed that
the agency analyzed the appellant’s qualifications in a manner consistent with
other candidates. ID at 110-11; IAF, Tab 61 at 6-7, 56-58. She therefore
concluded that the third Carr factor was neutral. ID at 110-11. Absent any
substantive argument to the contrary, we find no basis for reaching a contrary
conclusion.
Despite the appellant’s numerous arguments to the contrary, we agree with
the administrative judge’s findings. Although the appellant presented a prima
facie case of whistleblower reprisal, the agency met its burden of proving by clear
and convincing evidence that it would have taken the same personnel action in the
absence of his protected activity. Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS13
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.35
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The36
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file37
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.14 The court of appeals must receive your
14 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 38
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.39 | Kidalov_Maxim_V_SF-1221-16-0530-W-1__Final_Order.pdf | 2024-02-13 | MAXIM V. KIDALOV v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-16-0530-W-1, February 13, 2024 | SF-1221-16-0530-W-1 | NP |
2,355 | https://www.mspb.gov/decisions/nonprecedential/Green_Rukhsana_N_DC-0752-22-0157-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUKHSANA N. GREEN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-22-0157-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rachelle S. Young , Esquire, Washington, D.C., for the appellant.
Joseph Rieu , Esquire, Arlington, 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 the agency’s indefinite suspension action based on the suspension of her
security clearance. On petition for review, the appellant argues that her position
does not require a security clearance or access to classified information.
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 | Green_Rukhsana_N_DC-0752-22-0157-I-1 Final Order.pdf | 2024-02-13 | RUKHSANA N. GREEN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-22-0157-I-1, February 13, 2024 | DC-0752-22-0157-I-1 | NP |
2,356 | https://www.mspb.gov/decisions/nonprecedential/Cadena_Juan_M_DE-0752-18-0136-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN M. CADENA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-0752-18-0136-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Juan M. Cadena , Laredo, Texas, pro se.
Joey Ann Lonjers , 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
dismissed his appeal as untimely filed by 1 day without good cause shown for the
delay. On petition for review, the appellant argues that the administrative judge
failed to apply the seven factors for determining whether good cause exists to
waive the time limitations as outlined in Alonzo v. Department of the Air Force ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
4 M.S.P.R. 180, 183-84 (1980), and instead improperly relied upon the four
factors set forth in Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Petition for Review (PFR)
File, Tab 1 at 3. He also states that the administrative judge improperly failed to
rely upon or cite Board case law. Id.
The appellant presents a number of other arguments, including challenging
the administrative judge’s statement that, although the filing delay was minimal,
it was nearly two days because his facsimile was transmitted at 8:39 pm. Id. at 4.
He also cites Board and U.S. Court of Appeals for the Federal Circuit precedent
in which the filing deadline was waived when there was only a 1 -day delay. Id.
at 4-5. He asserts that he relied upon the advice of the lawyer provided by his
union that his appeal was due on January 18, 2018, even though it was actually
due on January 17, 2018, and that the administrative judge should have
considered him pro se after he received the initial incorrect advice. Id. at 5-6.
The appellant also argues that the administrative judge failed to give proper
weight to his health condition, that of his daughter, and his inability to afford an
attorney. Id. at 6-7. Furthermore, he states that he was not negligent because he
acted based upon the advice of his prior representative. Id. at 7. He also argues
that the agency would not be prejudiced because of the minimal delay and
because he waived his right to a hearing. Id. at 8.
Generally, we grant petitions such as 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 of2
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 | Cadena_Juan_M_DE-0752-18-0136-I-1__Final_Order.pdf | 2024-02-13 | JUAN M. CADENA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-18-0136-I-1, February 13, 2024 | DE-0752-18-0136-I-1 | NP |
2,357 | https://www.mspb.gov/decisions/nonprecedential/OReilly_Shelia_R_DC-1221-21-0640-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHELIA R. O'REILLY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-21-0640-W-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
helia R. O'Reilly , Ashburn, Virginia, pro se.
Lorna J. Jerome , Esquire, and Edith L. Moore McGee , 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 argues that she exhausted her claims of reprisal
for protected whistleblower activity with the Office of Special Counsel . Petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for Review File, Tab 1 at 3. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 | OReilly_Shelia_R_DC-1221-21-0640-W-1_Final_Order.pdf | 2024-02-13 | null | DC-1221-21-0640-W-1 | NP |
2,358 | https://www.mspb.gov/decisions/nonprecedential/OReilly_Shelia_R_DC-0752-21-0310-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHELIA R. O’REILLY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-21-0310-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
helia R. O'Reilly , Ashburn, Virginia, pro se.
Lorna Jerome and Edith L. Moore McGee , 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 alleged constructive removal for lack of Board
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
We have considered the appellant’s arguments but discern no error in the
administrative judge’s finding that the appellant’s disability retirement was not a
constructive removal within the Board’s jurisdiction. The appellant’s mere
disagreement with the administrative judge’s factual findings does not warrant a
different conclusion. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). Insofar as the appellant contends that the
administrative judge was biased, we find that she has not provided evidence that
would overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . See Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | OReilly_Shelia_R_DC-0752-21-0310-I-1_Final_Order.pdf | 2024-02-13 | null | DC-0752-21-0310-I-1 | NP |
2,359 | https://www.mspb.gov/decisions/nonprecedential/Lewis-Linton_Emmanuel_SF-0752-21-0270-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EMMANUEL LEWIS-LINTON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-21-0270-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Emmanuel Lewis-Linton , Calexico, California, pro se.
John Ferriter , Esquire, and Nelson Wong , Esquire, 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 based on the charges of absence without leave (AWOL) and
unprofessional conduct. On petition for review, the appellant challenges the
administrative judge’s credibility findings and argues that 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 factually and legally erred in upholding both the AWOL and unprofessional
conduct charges. He also argues that the administrative judge erred in upholding
the penalty of removal by improperly deferring to the deciding official’s
judgment and by disregarding relevant comparator cases. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Lewis-Linton_Emmanuel_SF-0752-21-0270-I-1_Final_Order.pdf | 2024-02-13 | null | SF-0752-21-0270-I-1 | NP |
2,360 | https://www.mspb.gov/decisions/nonprecedential/Young_Mark_DC-0752-21-0264-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK YOUNG,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-21-0264-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
rista Kraics , Esquire, Stafford, Virginia, for the appellant.
Melissa Martinez , Esquire, and John Schettler 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
dismissed his involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant asserts that the administrative judge erred by denying
him the opportunity to present evidence concerning his hostile work environment
allegation and by failing to explain her conclusion on that point, asserts that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge made several errors in conducting the hearing and appeal,
and generally disputes certain factual findings .2 Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 To the extent the appellant is alleging that the administrative judge committed an
abuse of discretion by disallowing evidence on his hostile work environment claim, the
appellant has failed to provide a basis for review because he has not shown that relevant
evidence that could have affected the outcome of the case was disallowed. See
Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12 (2004), aff'd,
121 F. App'x 865 (Fed. Cir. 2005) (stating that, to obtain reversal of an initial decision
on the ground that the administrative judge abused his discretion in excluding evidence,
the petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed); see also 5 C.F.R. § 1201.115(c) (stating that the
Board may grant a petition for review when the administrative judge’s rulings involved
an abuse of discretion, and the resulting error affected the outcome of the case).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. | Young_Mark_DC-0752-21-0264-I-1_Final_Order.pdf | 2024-02-13 | MARK YOUNG v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-21-0264-I-1, February 13, 2024 | DC-0752-21-0264-I-1 | NP |
2,361 | https://www.mspb.gov/decisions/nonprecedential/Voss_David_A_CH-0752-18-0218-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. VOSS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-18-0218-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Voss , Arden Hills, Minnesota, pro se.
Karin A. Greeman , Esquire, Bloomington, Minnesota, 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 furlough appeal as moot. On petition for review, the appellant
argues that the furlough was improper and challenges the merits of the agency’s
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 | Voss_David_A_CH-0752-18-0218-I-1 Final Order.pdf | 2024-02-13 | DAVID A. VOSS v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-18-0218-I-1, February 13, 2024 | CH-0752-18-0218-I-1 | NP |
2,362 | https://www.mspb.gov/decisions/nonprecedential/Stinnett_Gregory_P_DA-3443-23-0035-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY P. STINNETT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DA-3443-23-0035-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory P. Stinnett , Cibolo, Texas, pro se.
Rebecca Gervasi , Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the agency’s decision to find him ineligible for a
vacant position due to his status as an annuitant for lack of jurisdiction. On
petition for review, the appellant argues, in part, that the Office of Personnel
Management (OPM) was involved in the agency’s decision to find him ineligible
for the position because OPM administers the Federal Employees’ Retirement
System under which he receives an annuity, and the agency should not have found
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
him to be ineligible because he was willing to waive his annuity. Generally, we
grant petitions such as 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 | Stinnett_Gregory_P_DA-3443-23-0035-I-1_Final_Order.pdf | 2024-02-13 | GREGORY P. STINNETT v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-3443-23-0035-I-1, February 13, 2024 | DA-3443-23-0035-I-1 | NP |
2,363 | https://www.mspb.gov/decisions/nonprecedential/Parchment_Jasmine_AT-3443-22-0357-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASMINE PARCHMENT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-3443-22-0357-I-1
DATE: February 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jasmine Parchment , Richmond Hill, Georgia, pro se.
John S. Chamblee , Esquire, 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
dismissed her appeal concerning a religious accommodation request for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts, as she did before the administrative judge,
that the agency erred in denying her request for a religious accommodation.
Petition for Review File, Tab 1 at 3-6. However, evidence and argument related
to the merits of the accommodation request is not relevant to the issue of
jurisdiction over this appeal. The appellant has provided no basis to disturb the
initial decision, and we find no error in it. Accordingly, we deny the petition for
review and affirm the initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 The appellant’s petition for review was untimely filed by 37 days. Because we decide
this appeal on the merits, the Board does not reach the timeliness issue.
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Parchment_Jasmine_AT-3443-22-0357-I-1__Final_Order.pdf | 2024-02-13 | JASMINE PARCHMENT v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-3443-22-0357-I-1, February 13, 2024 | AT-3443-22-0357-I-1 | NP |
2,364 | https://www.mspb.gov/decisions/nonprecedential/Hill_Kyen_M_DC-0752-18-0361-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYEN M. HILL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0361-I-1
DATE: February 13, 2024
Michael Kator , Esquire, Juliette M. Niehuss , Esquire, and David Hart ,
Esquire, Washington, D.C., for the appellant.
Lundi M Shafiei , Esquire, and Supraja T Murali , Esquire, Washington,
D.C., for the agency.
BEFORE
Raymond A. Limon, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action. Vice Chairman Harris has recused herself from
consideration of this case. Because there is no quorum to alter the administrative
judge’s initial decision, the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(d).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this order. 5 U.S.C. § 7703(b)
(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this order. 5 U.S.C. § 7703(b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in
this case, and your representative receives this order before you do, then you must
file with the district court no later than 30 calendar days after your
representative receives this order. If the action involves a claim of discrimination
based on race, color, religion, sex, national origin, or a disabling condition, you
may be entitled to representation by a court-appointed lawyer and to waiver of3
any requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this order. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this order before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this order.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this order. 5 U.S.C. § 7703(b)(1)
(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Hill_Kyen_M_DC-0752-18-0361-I-1_Final_Order.pdf | 2024-02-13 | KYEN M. HILL v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0361-I-1, February 13, 2024 | DC-0752-18-0361-I-1 | NP |
2,365 | https://www.mspb.gov/decisions/nonprecedential/Lopez_Edwardo_O_DA-0752-18-0171-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARDO O. LOPEZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-18-0171-I-1
DATE: February 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwardo O. Lopez , Corpus Christi, Texas, pro se.
Kenneth M. Muir , Corpus Christi, 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 of an alleged involuntary retirement for lack of jurisdiction.
On petition for review, the appellant asserts that he informed the official who
proposed his removal and the official who decided to remove him that he had
sleep apnea. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Lopez_Edwardo_O_DA-0752-18-0171-I-1__Final_Order.pdf | 2024-02-12 | EDWARDO O. LOPEZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-18-0171-I-1, February 12, 2024 | DA-0752-18-0171-I-1 | NP |
2,366 | https://www.mspb.gov/decisions/nonprecedential/Bick_Dustin_M_AT-3443-18-0313-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUSTIN M. BICK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-3443-18-0313-I-1
DATE: February 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Barclay , Bynum, Alabama, for the appellant.
Polly Russell , Esquire, Anniston, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his 14-day suspension for lack of jurisdiction. On
petition for review, the appellant merely states that he is filing a petition for
review. Generally, we grant petitions such as 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 | Bick_Dustin_M_AT-3443-18-0313-I-1__Final_Order.pdf | 2024-02-12 | DUSTIN M. BICK v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-3443-18-0313-I-1, February 12, 2024 | AT-3443-18-0313-I-1 | NP |
2,367 | https://www.mspb.gov/decisions/nonprecedential/Lee_Anthony_T_AT-1221-18-0208-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY TERRELL LEE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-18-0208-W-1
DATE: February 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Terrell Lee , Saint Marys, Georgia, pro se.
Elizabeth Moseley , Millington, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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).
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to prove that he timely
filed his IRA appeal after receiving a close-out letter from the Office of Special
Counsel dated September 11, 2013. Initial Appeal File (IAF), Tab 16, Initial
Decision (ID) at 3-5; see 5 U.S.C. § 1214(a)(3)(A)(ii)2; MacDonald v.
Department of Justice , 105 M.S.P.R. 83, ¶ 11 (2007); 5 C.F.R. §§ 1201.57(c)(2),
1209.5(a)(1). We further agree with the administrative judge’s finding that the
appellant failed to allege circumstances that would justify applying the doctrine
of equitable tolling to the filing deadline. ID at 4-5; see Heimberger v.
Department of Commerce , 121 M.S.P.R. 10, ¶ 10 (2014) (observing that equitable
tolling is a rare remedy that is to be applied in unusual circumstances and
generally requires a showing that the litigant has been pursuing his rights
diligently and some extraordinary circumstances stood in his way); 5 C.F.R.
§ 1209.5(b).
In his petition for review, the appellant reasserts his claim that he timely
filed a Board appeal in October 2013. Petition for Review (PFR) File, Tab 1
2 The National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L.
No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097
of the NDAA amended various provisions of Title 5 of the U.S. Code. Our decision to
dismiss this appeal would be the same under both pre- and post-NDAA law.2
at 11; IAF, Tab 7 at 4-5. He further claims that the Board stopped responding to
or acknowledging his submissions after a prehearing conference was held on
January 26, 2010, in his prior removal appeal. PFR File, Tab 1 at 11; Lee v.
Department of the Army , MSPB Docket No. AT-0752-10-0186-I-1, Initial Appeal
File (0186 IAF), Tab 15 (summarizing the telephonic conference). We discern no
reason to disturb the administrative judge’s timeliness findings based on the
appellant’s arguments on review.
For the first time on review, the appellant asserts that the administrative
judge assigned to his prior removal appeal made an oral ruling during the
January 26, 2010 prehearing conference, and that he is seeking to memorialize
that oral ruling through the instant appeal. PFR File, Tab 1 at 4, 7-8, 11-13,
23-24; 0186 IAF, Tab 15. To the extent the appellant’s petition for review may
be construed as a request to reopen his prior removal appeal on the Board’s own
motion under 5 C.F.R. § 1201.118, we deny his request. See Jennings v. Social
Security Administration , 123 M.S.P.R. 577, ¶¶ 2-3, 14-23 (2016) (denying the
appellant’s request to reopen his prior removal appeal); 5 C.F.R. § 1201.118
(providing that the Board will exercise its discretion to reopen an appeal only in
unusual or extraordinary circumstances and generally within a short period of
time after the decision becomes final). The appellant has failed to allege unusual
or extraordinary circumstances that would justify reopening his removal appeal
over 8 years after the decision in that appeal became final. Lee v. Department of
the Army, MSPB Docket No. AT-0752-10-0186-I-1, Final Order at 1-2 (Oct. 26,
2010); see Jennings, 123 M.S.P.R. 577, ¶ 17. Moreover, the appellant has
identified no clear and material legal error by the prior administrative judge
warranting reopening of the Board’s final decision in his removal appeal. See
Jennings, 123 M.S.P.R. 577, ¶ 19. In addition, despite the appellant’s assertion
that the administrative judge erred in applying res judicata, we discern no reason
to disturb her finding that res judicata precludes the Board from addressing the
agency’s removal action a second time. PFR File, Tab 1 at 10; ID at 5; see, e.g.,3
Page v. Department of the Navy , 101 M.S.P.R. 513, ¶ 2 n.1 (2006) (finding that,
in an IRA appeal, the appellant’s claims concerning his removal were barred by
res judicata when he already had litigated such claims in a separate removal
appeal).
Although the appellant reasserts his claim that he was denied due process
when he was escorted out of the building after receiving notice of his proposed
removal, the Board has held that a notice of proposed removal is not an otherwise
appealable action that may be appealed directly to the Board. PFR File, Tab 1
at 14-15; IAF, Tab 1 at 5, Tab 4 at 15-17; see Weber v. Department of the Army ,
45 M.S.P.R. 406, 409 (1990). Accordingly, we find that the appellant’s claim
regarding his alleged “early” termination provides no reason to disturb the initial
decision.
The appellant makes the following additional arguments on review: the
initial decision conflicts with the Merit Systems Protection Board’s report titled
“What is Due Process in Federal Civil Service Employment?”; the administrative
judge’s dismissal of his appeal denied him his constitutional right to due process;
and the administrative judge erroneously stated that he was terminated in
December 2009 rather than in November 2009. PFR File, Tab 1 at 4, 9; ID at 1.
The appellant’s additional arguments on review fail to provide a reason to disturb
the initial decision because they are immaterial to the dispositive timeliness issue.
Moreover, we find that the appellant’s submission of documentation related to the
Board’s due process report, his prior Board appeals, and his discrimination
complaint provide no basis to disturb the initial decision. PFR File, Tab 1 at 5,
16-23; see Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(holding that the Board generally will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).
Finally, we deny the appellant’s motions for sanctions and requests to
strike the agency’s responses to his petition for review and to his motion for4
sanctions. PFR File, Tab 4 at 4-8, 11-14, Tab 6 at 4, 6-8. The appellant has
failed to show that sanctions are necessary to serve the ends of justice. See Smets
v. Department of the Navy , 117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1
(Fed. Cir. 2012); 5 C.F.R. § 1201.43. Further, we discern no basis on which to
strike the agency’s pleadings on review, which are provided for by the Board’s
regulations. PFR File, Tabs 3, 5; see 5 C.F.R. § 1201.114(a)(3). Moreover, we
deny the appellant’s request to order the agency representative to identify whether
she is the same agency representative who testified during a deposition for a prior
Board appeal. PFR File, Tab 4 at 13-14.
Accordingly, we affirm the dismissal of this IRA appeal as untimely filed.
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 | Lee_Anthony_T_AT-1221-18-0208-W-1__Final_Order.pdf | 2024-02-12 | ANTHONY TERRELL LEE v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-18-0208-W-1, February 12, 2024 | AT-1221-18-0208-W-1 | NP |
2,368 | https://www.mspb.gov/decisions/nonprecedential/Lee_Anthony_T_AT-1221-18-0208-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY TERRELL LEE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-18-0208-C-1
DATE: February 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Terrell Lee , Saint Marys, Georgia, pro se.
Elizabeth Moseley , Millington, 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 compliance initial
decision, which denied his petition for enforcement of the Board’s decision in the
underlying 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
compliance initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant raises the following arguments: the
administrative judge misconstrued his claims and conflated his appeals; the
administrative judge failed to follow the Board’s compliance procedures set forth
at 5 C.F.R. § 1201.183; and the administrative judge engaged in ex parte
communications when she allegedly received bribes from the agency.
Compliance Petition for Review (CPFR) File, Tab 3 at 9-15. To support his
arguments, the appellant has resubmitted documentation related to the Merit
Systems Protection Board’s report on due process, his prior Board appeals, and
his discrimination complaint. CPFR File, Tab 3 at 19-23, Tab 6 at 11;
Compliance File (CF), Tab 14 at 16-18, 23-25. For the first time on review, the
appellant has submitted a July 2013 press release from the U.S. Attorney’s Office
in the District of Columbia.2 CPFR File, Tab 3 at 16-18.
2 The appellant has failed to explain why he was unable to submit such evidence despite
his due diligence prior to when the record before the administrative judge closed. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that 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). Nevertheless, as discussed below, we find that such evidence
does not warrant a different outcome than that of the compliance initial decision.2
After considering the appellant’s arguments and documents provided on
review, we discern no reason to disturb the compliance initial decision. We
acknowledge that the administrative judge’s adjudication of the appellant’s
petition for enforcement was premature at the time the compliance initial decision
was issued because the Board had not issued a final decision or order in his IRA
appeal. CF, Tab 17, Compliance Initial Decision (CID) at 1-2; see 5 C.F.R.
§ 1201.182(a) (providing that a party may petition the Board for enforcement of a
final decision or order issued under the Board’s appellate jurisdiction); cf.
Flaherty v. U.S. Postal Service , 68 M.S.P.R. 637, 638 (1995) (finding that the
adjudication of compliance issues would be premature because there was no final
order from which a petition for enforcement could be filed). Nevertheless, we
find that any error is immaterial to the outcome of this compliance proceeding.
Because the Board has issued a Final Order affirming the dismissal of the
underlying IRA appeal as untimely filed, the appellant has not been afforded any
relief and there is nothing for the Board to enforce. Lee v. Department of the
Army, MSPB Docket No. AT-1221-18-0208-W-1, Final Order (Feb. 12, 2024).
Similarly, we find that the administrative judge’s mischaracterization of the
disposition of his IRA appeal as dismissed for lack of jurisdiction, instead of as
dismissed as untimely filed, is immaterial to the outcome of this compliance
proceeding. CID at 2.
Moreover, we deny the appellant’s motion for a written transcript of the
January 26, 2010 prehearing conference held in his prior removal appeal because
it is not relevant to the adjudication of this compliance matter. CPFR File, Tab 6
at 5; CF, Tab 16 at 10-11. Further, we find that the appellant’s substantive rights
have not been prejudiced by the administrative judge’s failure to address his
motion. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(finding that adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). 3
Finally, we discern no reason to disturb the compliance initial decision
based on the appellant’s conclusory assertion that the administrative judge
engaged in ex parte communications when she allegedly received bribes from the
agency. CPFR File, Tab 3 at 13, 15. The appellant’s submission of a July 2013
press release from the U.S. Attorney’s Office in the District of Columbia
concerning a bribery and kickback scheme involving the U.S. Army Corps of
Engineers does not lend support to his assertion. Id. at 16-18. To the extent the
appellant is alleging that the administrative judge’s analysis and rulings were
biased in favor of the agency, such an argument is unavailing. The Board will not
infer bias based on an administrative judge’s case-related rulings, Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013), and we find that the
appellant’s broad allegation of bias is insufficient to rebut the presumption of the
administrative judge’s honesty and integrity, see Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980).
Accordingly, we affirm the compliance initial decision denying the
appellant’s petition for enforcement.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Lee_Anthony_T_AT-1221-18-0208-C-1__Final_Order.pdf | 2024-02-12 | ANTHONY TERRELL LEE v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-18-0208-C-1, February 12, 2024 | AT-1221-18-0208-C-1 | NP |
2,369 | https://www.mspb.gov/decisions/nonprecedential/Fair_Susan_J_CH-844E-19-0486-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSAN J. FAIR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-19-0486-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan J. Fair , Greenfield, Indiana, pro se.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal of the decision of the Office of Personnel
Management denying her application for retirement benefits. On petition for
review, the appellant challenges the administrative judge’s finding of
untimeliness. 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 | Fair_Susan_J_CH-844E-19-0486-I-1__Final_Order.pdf | 2024-02-09 | SUSAN J. FAIR v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-19-0486-I-1, February 9, 2024 | CH-844E-19-0486-I-1 | NP |
2,370 | https://www.mspb.gov/decisions/nonprecedential/Drouin_Eric_R_PH-0752-19-0051-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC R. DROUIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-19-0051-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Noucas, Jr. , Portsmouth, New Hampshire, for the appellant.
Matthew L. Schmid , Portsmouth, New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for failure to follow proper procedures. On petition for
review, the appellant argues that the agency was required to prove that his failure
to follow proper procedures was intentional, that the agency should have taken a
performance action, rather than a misconduct action, against him, and that the
agency violated his right to due process because certain evidence was unavailable
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).
for his inspection. Generally, we grant petitions such as 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 | Drouin_Eric_R_PH-0752-19-0051-I-1__Final_Order.pdf | 2024-02-09 | ERIC R. DROUIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0051-I-1, February 9, 2024 | PH-0752-19-0051-I-1 | NP |
2,371 | https://www.mspb.gov/decisions/nonprecedential/Golaboff_Stanley_DA-3443-19-0422-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY GOLABOFF,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-3443-19-0422-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stanley Golaboff , Harker Heights, Texas, pro se.
Megan Grube and Daniel Murphy , Esquire, Austin, 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 the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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).
On petition for review, the appellant reasserts his argument that his detail
in June 2019 from his Human Resource Officer position to a position with the
agency’s United States Property and Fiscal Office (USPFO) constituted an
appealable reduction-in-force (RIF) action. Petition for Review (PFR) File, Tab 1
at 4-6; Initial Appeal File (IAF), Tab 1 at 5, Tab 10 at 7, 11, Tab 12 at 7-9. For
the first time on review, the appellant argues that the agency effectively subjected
him to an appealable RIF action in August 2019 when it underwent a
reorganization under the Texas Military Department (TMD) “NEXT” operation.2
PFR File, Tab 1 at 4. After considering the appellant’s arguments and submission
of evidence on review, we discern no basis to disturb the administrative judge’s
finding that the appellant has failed to allege any facts that, if proven, would
show that he suffered an appealable RIF action.3 IAF, Tab 14, Initial Decision
2 Generally, 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). However, the issue of Board jurisdiction is always
before the Board and may be raised by either party or sua sponte by the Board at any
time during a Board proceeding. Edwards v. Department of State , 98 M.S.P.R. 481, ¶ 4
(2005).
3 To support his argument that his June 2019 detail constituted a RIF, the appellant has
resubmitted an agency-wide email dated May 31, 2019, that announced his assignment
to a position with the USPFO. PFR File, Tab 1 at 7; IAF, Tab 10 at 16. He has also
provided a copy of a TMD “Next” Brief that postdates the close of the record before the
administrative judge. PFR File, Tab 1 at 9 14; IAF, Tab 9 at 2. Because the appellant2
(ID) at 5; Adams v. Department of Defense , 96 M.S.P.R. 325, ¶¶ 8-9 (2004)
(stating that, to establish jurisdiction over an appealable RIF action, an appellant
must show that he was furloughed for more than 30 days, separated, or demoted
by a RIF action); 5 C.F.R. § 351.901.
In addition, the appellant reasserts his arguments that the agency violated
the RIF procedures set forth at 5 C.F.R. part 351, the regulations of the Office of
Personnel Management regarding reassignments, his due process rights, the merit
system principles, and the agency’s Merit Placement Plan. PFR File, Tab 1
at 5-6; IAF, Tab 1 at 5, Tab 10 at 7, 9-12, Tab 12 at 8-9. We need not address the
appellant’s arguments regarding the merits of his appeal because they are not
relevant to the threshold issue of jurisdiction. See Morrison v. Department of the
Navy, 122 M.S.P.R. 205, ¶ 11 (2015) (declining to reach the appellant’s claims
regarding due process, harmful procedural error, and prohibited personnel
practices because they were not relevant to the jurisdictional issue). Nor do we
address the appellant’s claim that the agency violated merit system principles
because we lack jurisdiction to do so. Solamon v. Department of Commerce ,
119 M.S.P.R. 1, ¶ 14 (2012) (finding that, in the absence of an otherwise
appealable action, the Board lacked jurisdiction to review the appellant’s claim
that the agency violated merit system principles).
Accordingly, we affirm the initial decision dismissing the appeal for lack
of jurisdiction without holding the requested hearing. PFR File, Tab 1 at 6; ID
at 1 & n.1, 5-6.
has not shown that this evidence is new and material, it does not provide a basis for
review. See 5 C.F.R. § 1201.115(d) (stating that the Board may grant a petition for
review when new and material evidence is available that, despite the petitioner’s due
diligence, was not available when the record closed); see also Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (concluding that, to satisfy the “new and
material evidence” criterion for granting a petition for review, any new evidence must
be 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 | Golaboff_Stanley_DA-3443-19-0422-I-1_Final_Order.pdf | 2024-02-09 | STANLEY GOLABOFF v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-3443-19-0422-I-1, February 9, 2024 | DA-3443-19-0422-I-1 | NP |
2,372 | https://www.mspb.gov/decisions/nonprecedential/Mock_Shawn_AT-0752-19-0437-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN MOCK,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-19-0437-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sam Berry , Macon, Georgia, for the appellant.
Gregory Lloyd , Esquire, Robins AFB, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction pursuant to a Last Chance
Settlement Agreement (LCSA). Generally, we grant petitions such as 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).
On review, the appellant challenges the administrative judge’s credibility
determinations. Petition for Review (PFR) File, Tab 1 at 4. Specifically, he
asserts that his coworker’s testimony of the incident in question was inconsistent
with his prior written statement about said incident. Id. The administrative judge
recognized the inconsistencies but nonetheless found the coworker’s testimony
at the hearing to be credible. Initial Appeal File (IAF), Tab 15, Initial Decision
(ID) at 3-5. The Board will defer to the credibility determinations of an
administrative judge when they are based, explicitly or implicitly, upon the
observation of the demeanor of witnesses testifying at a hearing. Thomas v. U.S.
Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011). The credibility determinations of
an administrative judge are virtually unreviewable on appeal. Id. Indeed, the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so, such as when the administrative judge’s findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole. Rapp v. Office of Personnel Management , 108 M.S.P.R. 674,
¶ 13 (2008). We find that the appellant has failed to present sufficiently sound
reasons to disturb the administrative judge’s credibility determinations.
The administrative judge here noted the inconsistencies between the
coworker’s testimony and written statement. ID at 3-4. Even considering these2
inconsistencies, the administrative judge, citing Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987), found the coworker’s testimony
“straight-forward and direct” and “particularly sincere.” ID at 5. Thus, he
credited the coworker’s testimony. Id. On review, the appellant merely points
out the inconsistency between the coworker’s written statement and his hearing
testimony and asserts that the coworker is “either a perjurer, a liar, or both.” PFR
File, Tab 1 at 4. The Board has held that inconsistent statements alone do not
necessarily render a witness’s testimony incredible. Thomas, 116 M.S.P.R. 453,
¶ 5. The administrative judge here considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility.
ID at 3-6. The appellant has failed to provide sufficiently sound reasons to
disturb those credibility determinations.
In reaching his decision, the administrative judge stated an incorrect date of
the LCSA and the decision letter mitigating the original penalty to a 30-day
suspension. ID at 2; IAF, Tab 4 at 26-29. However, this error was harmless. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mock_Shawn_AT-0752-19-0437-I-1_Final_Order.pdf | 2024-02-09 | SHAWN MOCK v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-19-0437-I-1, February 9, 2024 | AT-0752-19-0437-I-1 | NP |
2,373 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Rodney_B_AT-0752-19-0556-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODNEY B. JACKSON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-0752-19-0556-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rodney B. Jackson , Snellville, Georgia, pro se.
Amee Patel , 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
affirmed his removal from his position of Lead Tax Examining Technician for
willfully understating his tax liability and failure to timely pay his Federal tax
liability. On petition for review, the appellant argues that the agency did not
communicate well with him prior to the issuance of the proposed notice of
removal and that the deciding official’s determination that he acted willfully was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on opinion and not fact. Petition for Review (PFR) File, Tab 1 at 4.
He also notes his “solid upstanding career” at the agency. Id. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly modified to supplement the administrative judge’s analysis of the
second charge, we AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
The appellant’s removal from Federal service was based on two charges:
(1) willfully understating his tax liability on his Federal tax returns in violation of
section 1203(b)(9) of the Internal Revenue Service Restructuring and Reform Act
of 1998 (IRSRRA), Pub. L. No. 105-206, Title I, § 1203, 112 Stat. 685 (codified
at 26 U.S.C. § 7804 note); and (2) failure to timely pay his Federal tax liability
for the 2013 and 2014 tax years. Initial Appeal File (IAF), Tab 4 at 31-32.
Regarding the first charge, the administrative judge thoroughly considered the
evidence, which included hearing testimony from the appellant and the deciding
official, and found that the agency proved that, at a minimum, the appellant acted
with reckless indifference and in violation of the IRSRRA when he failed to
report his wife’s income on his 2013 and 2014 tax returns. IAF, Tab 14,
Initial Decision (ID) at 5-6. We have reviewed the record, and we agree with the2
administrative judge that the agency proved this charge by preponderant
evidence.
Regarding the second charge, the administrative judge stated that the
appellant did not dispute that he failed to pay his taxes for the 2013 and 2014 tax
years on time, and she sustained the charge. ID at 6 n.6. The appellant has not
challenged this conclusion on review. PFR File, Tab 1. It appears undisputed
that any owed taxes from 2013 and 2014 were due in 2014 and 2015, respectively,
see generally IAF, Tab 12, Hearing Compact Disc (testimony of the deciding
official and of the appellant), and that the appellant paid the taxes due on his
wife’s 2013 income in 2015 and on her 2014 income in 2016, IAF, Tab 4 at 37.
As such, we agree with the administrative judge that the agency proved that the
appellant’s payment of the owed tax on his wife’s income was untimely, but we
supplement the initial decision to include this discussion.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 | Jackson_Rodney_B_AT-0752-19-0556-I-1__Final_Order.pdf | 2024-02-09 | RODNEY B. JACKSON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0752-19-0556-I-1, February 9, 2024 | AT-0752-19-0556-I-1 | NP |
2,374 | https://www.mspb.gov/decisions/nonprecedential/Jones_Annie_L_DC-0842-19-0343-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNIE LEE JONES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0842-19-0343-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Annie Lee Jones , Washington, D.C., pro se.
Sherri McCall , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her application for a deferred annuity under the Federal Employees’
Retirement System (FERS). On petition for review, the appellant argues the
administrative judge (1) erred in denying her request for an extension of time 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).
supplement the record; (2) miscalculated the length of her employment with the
Library of Congress and improperly discounted certain Federal and District of
Columbia service; and (3) erred in finding that she received a refund of the
majority of her retirement contributions. Petition for Review (PFR) File, Tab 1
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).2
The appellant appears to allege on review that the administrative judge
erred in denying her motion for an extension of time to supplement the record.
PFR File, Tab 1 at 4. We find no abuse of discretion in the administrative judge’s
ruling in the initial decision denying the appellant’s motion for additional time.
Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 5. During the
2 Although the scope of OPM’s final decision pertained to the appellant’s entitlement to
a deferred annuity under FERS, the initial decision cites statutory provisions pertaining
to annuities under the Civil Service Retirement System. Initial Appeal File, Tab 12
at 29-31, Tab 17, Initial Decision at 3, 5. However, because the relevant statutory
provisions under either system are nearly identical, compare, e.g., 5 U.S.C. § 8338(a),
with 5 U.S.C. § 8413(a), these misstatements are harmless to the outcome of this appeal,
see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).2
telephonic hearing, the appellant indicated that she had additional documentary
evidence, i.e., W-2 forms, which, she alleged, substantiated that OPM had
miscalculated the length of her employment with the Library of Congress. IAF,
Tab 14, Hearing Recording at 58:24 to 58:50 (testimony of the appellant).
Following the hearing, the administrative judge provided the appellant an
opportunity to supplement the record with this evidence. IAF, Tab 15 at 1. In so
doing, he explained that the “submissions must be received . . . on or before
July 25, 2019.” Id. (Emphasis added). On July 24, 2019, the appellant mailed a
motion via U.S. mail requesting an extension of time, until August 1, 2019, to
provide the documents. IAF, Tab 16 at 1-3. However, the appellant never
supplemented the record before the administrative judge. She also has not
submitted any W-2 forms on review.
We agree with the administrative judge that the appellant failed to meet
both the deadline imposed by the administrative judge and her own requested
deadline of August 1, 2019. ID at 5. Moreover, the appellant’s motion was also
procedurally deficient insofar as she failed to state whether OPM objected to her
request. IAF, Tab 16 at 1; see 5 C.F.R. § 1201.55(a). Thus, we find any error in
the administrative judge’s failure to rule on the appellant’s motion prior to
issuing the initial decision is harmless. See Johnson v. Department of Justice ,
104 M.S.P.R. 624, ¶ 30 (2007) (determining that an administrative judge’s failure
to rule on a motion to compel was harmless because the appellant’s motion did
not comply with the Board’s regulatory requirements); White v. U.S. Postal
Service, 64 M.S.P.R. 261, 267-68 (1994) (declining to find an administrative
judge’s failure to rule on an agency’s motion for an extension was harmful
because the appellant failed to show any adverse effect on her substantive rights).3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 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.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.8 | Jones_Annie_L_DC-0842-19-0343-I-1_Final_Order.pdf | 2024-02-09 | ANNIE LEE JONES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0842-19-0343-I-1, February 9, 2024 | DC-0842-19-0343-I-1 | NP |
2,375 | https://www.mspb.gov/decisions/nonprecedential/Oliver_Eddie_V_CH-1221-19-0566-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDDIE V. OLIVER, III,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-1221-19-0566-W-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eddie V. Oliver, III , Columbus, Ohio, pro se.
Mickey J. Lee , Esquire, 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 his individual right of action appeal as untimely filed. On petition for
review, the appellant reasserts that he was hospitalized during a portion of the
filing period. Petition for Review File, Tab 1 at 3; Initial Appeal File, Tab 1 at 1.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Oliver_Eddie_V_CH-1221-19-0566-W-1_Final_Order.pdf | 2024-02-09 | null | CH-1221-19-0566-W-1 | NP |
2,376 | https://www.mspb.gov/decisions/nonprecedential/Morgan_Jennifer_K_PH-0731-19-0307-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER KAY MORGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0731-19-0307-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randolph Elliott , Camp Hill, Pennsylvania, 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 a negative suitability action by the Office of Personnel Management
(OPM). On petition for review, the appellant alleges the following: (1) the initial
decision should be reversed; (2) the administrative judge erred by not granting a
continuance to allow for the testimony of a particular witness; and (3) the
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).
administrative judge erred in finding that she failed to prove her affirmative
defense of sex discrimination on the basis of disparate treatment. Petition for
Review (PFR) File, Tab 1 at 3-5. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
The appellant avers that a “key witness” was unable to testify at the hearing
and she states that “[t]he [h]earing was not allowed to be postponed to wait for,
and allow for her testimony.” PFR File, Tab 1 at 3. Here, the appellant’s
representative informed the administrative judge at the beginning of the hearing
that the subject witness was unable to testify due to a family emergency. Initial
Appeal File (IAF), Tab 15, Hearing Recording (HR) at 0:44 to 1:15 (statement of
2 The appellant provides numerous documents with her petition for review. PFR File,
Tab 1 at 6-96. Insofar as none of these documents constitute new evidence, a different
outcome is not warranted. See 5 C.F.R. § 1201.115(d) (“To constitute new evidence,
the information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed.”). Moreover, even
considering such additional documentation, we find that it does not change the outcome
of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(observing 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). 2
the appellant’s representative). He did not request a continuance in order to
obtain her testimony; instead, he indicated that he would call another witness in
her stead.3 HR at 1:29 to 1:36 (statement of the appellant’s representative).
Thus, the appellant’s assertion that the hearing “was not allowed to be postponed”
is both unsubstantiated by the record and unavailing insofar as neither she nor her
representative timely requested a continuance. PFR File, Tab 1 at 3; see Lohr v.
Department of the Air Force , 24 M.S.P.R. 383, 386 (1984). To the extent the
appellant faults her representative for failing to request a continuance, her
contention is unavailing insofar as 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).
In finding that the appellant failed to prove her affirmative defense of sex
discrimination on the basis of disparate treatment, the administrative judge
concluded that the appellant had failed to identify a similarly situated comparator
employee. IAF, Tab 16, Initial Decision (ID) at 14-15. In so finding, he
reasoned that OPM had only charged the alleged comparator employee with one
charge, whereas it had levied three charges against the appellant. ID at 15.
The Board has held that the similarity of comparative employees in a disparate
treatment case is governed by the similarity of their conduct and related
circumstances, not by what charges an agency chooses to bring against them;
thus, this was a misstatement. See Spahn v. Department of Justice , 93 M.S.P.R.
195, ¶¶ 13-14 (2003). However, insofar as we agree with the administrative
judge’s finding that the alleged comparator employee was able to provide
mitigating circumstances whereas the appellant was not, we find his misstatement
harmless. ID at 15; see Adams v. Department of Labor , 112 M.S.P.R. 288, ¶ 13
(2009) (explaining that, for other employees to be deemed similarly situated, they
must have, among other things, engaged in similar conduct without differentiating
3 He subsequently elected not to call the substitute witness after learning that she was
unavailable. HR at 41:46 to 42:08 (statement of the appellant’s representative). 3
or mitigating circumstances); see also Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Morgan_Jennifer_K_PH-0731-19-0307-I-1_Final_Order.pdf | 2024-02-09 | JENNIFER KAY MORGAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0731-19-0307-I-1, February 9, 2024 | PH-0731-19-0307-I-1 | NP |
2,377 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Donte_PH-0752-19-0075-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONTE NELSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-19-0075-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clark D. Browne , Clinton, Maryland, for the appellant.
Brian J. Sheppard and Hilary V. Mountgordon , Washington, D.C., for the
agency.
BEFORE
CathyA. 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 his acceptance of a reduction in grade to a Security Officer position,
following his failure to complete the training required for the Police Officer
position to which he was promoted, was ambiguous because he used the word
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
“except” rather than “accept” in his email acknowledging his appointment to the
position. He also challenges the finding that passing the training was required for
the Police Officer position and he asserts that, despite his lack of training, he was
performing the duties of that position. Generally, we grant petitions such as 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 RIGHTS
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 On review, the appellant argues for the first time that the Watch Commander coerced
him into accepting the lower graded position by stating what the appellant should say in
his January 5 and 11, 2017 emails. Petition for Review File, Tab 1. The Board will
generally not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously available
despite the party's due diligence. Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980). There has been no such showing here. In any event, the Board has
held that, even if the agency suggested a downgrade, it can still be voluntary if the
employee accepts the agency’s proposal. Goodwin v. Department of Transportation ,
106 M.S.P.R. 520, ¶ 12 (2007). 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 | Nelson_Donte_PH-0752-19-0075-I-1_Final_Order.pdf | 2024-02-09 | DONTE NELSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-19-0075-I-1, February 9, 2024 | PH-0752-19-0075-I-1 | NP |
2,378 | https://www.mspb.gov/decisions/nonprecedential/Richardson_Darlene_DC-844E-19-0224-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARLENE RICHARDSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0224-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darlene Richardson , Hollister, North Carolina, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s reconsideration decision
dismissing her application for disability retirement under the Federal Employee
Retirement System as untimely filed. On petition for review, the appellant
reargues that she is entitled to a waiver of the filing deadline because of her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
medical condition and submits two additional documents in support of her claim.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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 | Richardson_Darlene_DC-844E-19-0224-I-1_Final_Order.pdf | 2024-02-09 | DARLENE RICHARDSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0224-I-1, February 9, 2024 | DC-844E-19-0224-I-1 | NP |
2,379 | https://www.mspb.gov/decisions/nonprecedential/Rector_Edwin_DC-3330-19-0378-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN RECTOR,
Appellant,
v.
FEDERAL ELECTION COMMISSION,
Agency.DOCKET NUMBER
DC-3330-19-0378-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwin Rector , Alexandria, Virginia, pro se.
Christine McClarin , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this appeal of his nonselection under the Veterans Employment
Opportunities Act of 1998 (VEOA) as barred by the doctrine of res judicata. On
petition for review, the appellant argues that the administrative judge improperly
applied the doctrine of res judicata because the Office of Personnel Management
should have been the respondent agency in this appeal and because the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge in his prior VEOA nonselection appeal did not issue a
decision on the merits. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is not material. Petition for Review File, Tab 3 at 4-10. Therefore, it
provides no basis to disturb the initial decision. Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (finding that the Board will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Rector_Edwin_DC-3330-19-0378-I-1_Final_Order.pdf | 2024-02-09 | EDWIN RECTOR v. FEDERAL ELECTION COMMISSION, MSPB Docket No. DC-3330-19-0378-I-1, February 9, 2024 | DC-3330-19-0378-I-1 | NP |
2,380 | https://www.mspb.gov/decisions/nonprecedential/Orloski_Donna_G_NY-0843-18-0022-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA G. ORLOSKI,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0843-18-0022-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward Delli-Paoli , Esquire, Staten Island, New York, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying her request for payment of a lump-sum death benefit under the Civil
Service Retirement System. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet her burden of
proving by preponderant evidence her entitlement to a lump-sum death benefit as
a stepdaughter of the decedent employee. Initial Appeal File (IAF), Tab 20,
Initial Decision at 2-4; see Davis v. Office of Personnel Management ,
104 M.S.P.R. 70, ¶ 7 (2006) (observing that the burden of proving entitlement to
retirement benefits is on the applicant for such benefits ); 5 C.F.R. § 1201.56(b)
(2)(ii); see also Murphy v. Office of Personnel Management , 103 M.S.P.R. 431,
437 (2006) (stating that the Board cannot order OPM to pay lump-sum death
benefits based on equitable principles when the statutory conditions for payment
have not been met).
For the first time on review, the appellant raises the possibility of her
entitlement to a lump-sum death benefit as a “duly appointed executor or
administrator of the estate” of the decedent under 5 U.S.C. § 8342(c). Petition
for Review (PFR) File, Tab 9 at 5-8. Specifically, the appellant asserts that she
could have been named as the executor in the decedent’s will or that, under New
York state law, she could be appointed as the administrator of the decedent’s2
estate. Id. at 5-7. The appellant further asserts that she intends to search for the
decedent’s will, if any, and to take steps to become a court-appointed
administrator. Id. With her petition for review, the appellant has included her
own affidavit dated May 8, 2018. Id. at 10-11.
The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980); see Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that 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). We are not persuaded by the appellant’s claim that she
was unable to raise the new argument before the administrative judge because she
was not represented by counsel and because she was unaware of the applicable
Federal and New York state law. PFR File, Tab 9 at 5, 11; see Morrison v.
Department of the Army , 77 M.S.P.R. 655, 659 n.4 (1998) (observing that,
although pro se appellants are not expected to proceed with the precision of an
attorney in a judicial proceeding, they may not escape the consequences of
inadequate representation).
Nevertheless, for the following reasons, we find that the appellant’s new
argument and supporting affidavit provide no reason to disturb the initial
decision. The Board generally has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under the retirement system only after
OPM has issued a final decision. McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). When
OPM’s final decision contains no determination on a particular issue, the Board
lacks jurisdiction over that issue. Hasanadka v. Office of Personnel Management ,
116 M.S.P.R. 636, ¶ 20 (2011). Here, the appellant did not raise before OPM,
and OPM’s final decision did not concern, the issue of whether she is entitled to a3
lump-sum death benefit as an executor or administrator of the decedent’s estate.
IAF, Tab 7 at 6-8, 11. Moreover, the appellant indicated in her application for
lump-sum death benefits that an executor, administrator, or other official had not
been and would not be appointed by the court to settle the estate of the decedent.
Id. at 11. Therefore, we find that the Board lacks jurisdiction to consider the
appellant’s new argument. See Autrey v. Office of Personnel Management ,
27 M.S.P.R. 130, 132 (1985) (finding that the Board lacked jurisdiction over the
appellant’s claims concerning retirement benefits when he failed to show that
they were raised before and considered by OPM).2
In addition, the appellant appears to assert on review that she did not make
an informed decision to withdraw her request for a hearing during the prehearing
conference on March 12, 2018. PFR File, Tab 1; IAF, Tab 18 at 1. Specifically,
the appellant claims that she did not see a reason for a hearing because the
administrative judge told her that OPM had “won,” which she thought was the
final decision. PFR File, Tab 1. The record reflects that the administrative judge
previously had informed the appellant during the February 8, 2018 status
conference that, “based on record evidence to date, she would not be successful in
meeting her burden in this appeal.” IAF, Tab 16 at 1, 3. An appellant before the
Board has the right to withdraw her request for a hearing; however, there is a
strong policy in favor of granting an appellant a hearing on the merits of her case.
Perez Peraza v. Office of Personnel Management , 114 M.S.P.R. 457, ¶ 15 (2010).
Therefore, a withdrawal of a hearing request must come by way of clear,
unequivocal, or decisive action. Id. Further, the decision to withdraw a hearing
request must be informed, i.e., the appellant must be fully apprised of the relevant
adjudicatory requirements and options. Id.
Here, we find that the appellant has failed to show that her decision to
withdraw her request for a hearing was not informed. The appellant’s alleged
2 Our jurisdictional finding does not preclude the appellant from presenting her new
argument to OPM under applicable statutory provisions or regulations. See Autrey,
27 M.S.P.R. at 132.4
explanation that she thought the administrative judge had already made a decision
in OPM’s favor is belied by the fact that she filed additional evidence and
argument in response to the administrative judge’s March 13, 2018 Order and
Summary of Prehearing Conference documenting the appellant’s withdrawal of
her hearing request and setting the close-of-record date. IAF, Tabs 18-19.
Moreover, in the February 15, 2018 Order and Summary of Conference Call, the
administrative judge clearly apprised the appellant of the relevant adjudicatory
requirements and hearing procedures such that she knew or should have known
that a decision would be made after the scheduled hearing. IAF, Tab 16. Further,
despite having the opportunity to object to the administrative judge’s summaries
of the status and prehearing conferences, the appellant did not do so. IAF, Tab 16
at 5, Tab 18 at 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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Orloski_Donna_G_NY-0843-18-0022-I-1_Final_Order.pdf | 2024-02-09 | DONNA G. ORLOSKI v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0843-18-0022-I-1, February 9, 2024 | NY-0843-18-0022-I-1 | NP |
2,381 | https://www.mspb.gov/decisions/nonprecedential/Wiggins_Samuel_DC-0752-17-0303-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL WIGGINS,
Appellant,
v.
ENVIRONMENTAL PROTECTION
AGENCY,
Agency.DOCKET NUMBER
DC-0752-17-0303-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Alexandra Meighan , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal on two charges, Lack of Candor in an Official Investigation
and Inappropriate Conduct. On petition for review, the appellant does not contest
the inappropriate conduct charge. He instead argues that he did not lack candor
in responding to the questions posed by the agency’s Office of Inspector General
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 its investigation into allegations of his inappropriate conduct with a
subordinate female employee because, among other things, he truly did not recall
holding hands with or kissing the subordinate at the time identified in the
investigation. Generally, we grant petitions such as 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 | Wiggins_Samuel_DC-0752-17-0303-I-1__Final_Order.pdf | 2024-02-09 | SAMUEL WIGGINS v. ENVIRONMENTAL PROTECTION AGENCY, MSPB Docket No. DC-0752-17-0303-I-1, February 9, 2024 | DC-0752-17-0303-I-1 | NP |
2,382 | https://www.mspb.gov/decisions/nonprecedential/Samuelson_Steven_S_CH-0752-19-0189-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN S. SAMUELSON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-0752-19-0189-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Justin Baker , St. Paul, Minnesota, 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 separation from his dual-status position. On
petition for review, the appellant makes the following arguments: (1) there is no
evidence in the record that this appeal concerns any alleged misconduct or fitness
for duty; (2) he lost his military membership because he was not allowed to
reenlist, not because he was removed from the military; and (3) the action must
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
be reversed because he was removed without due process. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
During the pendency of the petition for review, the U.S. Court of Appeals
for the Federal Circuit issued a precedential decision holding that the Board lacks
jurisdiction over an appeal of a dual-status military technician who was separated
from his civilian position pursuant to 38 U.S.C. § 709(f)(1) for failure to meet the
military membership requirement of his employment. Dyer v. Department of the
Air Force, 971 F.3d 1377, 1380-84 (Fed. Cir. 2020). We find that the
administrative judge’s analysis was consistent with the Federal Circuit’s
subsequent holding in Dyer. Furthermore, we find that the appellant received
notice of his termination in accordance with 32 U.S.C. § 709(f)(6), and that such
notice does not entail an opportunity to respond. See id. at 1383 & n.5. In any
event, the appellant’s due process defense does not provide an independent basis
for Board jurisdiction. See Riddick v. Department of the Navy , 41 M.S.P.R. 369,
372 (1989).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Samuelson_Steven_S_CH-0752-19-0189-I-1_Final_Order.pdf | 2024-02-09 | STEVEN S. SAMUELSON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-0752-19-0189-I-1, February 9, 2024 | CH-0752-19-0189-I-1 | NP |
2,383 | https://www.mspb.gov/decisions/nonprecedential/Tickle_Lorie_A_DC-844E-19-0403-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORIE A. TICKLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0403-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorie A. Tickle , Whitsett, North Carolina, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management that
denied her 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 erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the record contains
sufficient documentation of her disabling medical conditions and that she is
entitled to FERS disability retirement benefits. Petition for Review (PFR) File,
Tab 2 at 4-5. She also submits narrative statements about alleged harassment and
discrimination that she experienced in the workplace in 2016. PFR File, Tab 1
at 4-8. The administrative judge properly considered both the objective medical
opinions and the appellant’s subjective accounts of her physical and mental
limitations in finding that she failed to establish that her medical conditions
caused her documented attendance deficiencies or rendered her unable to provide
useful and efficient service in her position of record. Initial Appeal File, Tab 22,
Initial Decision (ID) at 21-26; see Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313, ¶¶ 19-20 (2012) (stating that the Board will consider all
relevant objective and subjective evidence in determining an appellant’s
entitlement to disability retirement). Having reviewed the record evidence and
considered her arguments on review, which largely constitute mere disagreement
with the administrative judge’s findings, we agree that the appellant failed to
establish her entitlement to disability retirement benefits. PFR File, Tab 2 at 4-5;2
ID at 21-26; see Henderson v. Office of Personnel Management ,
109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria that an applicant must
meet in order to qualify for disability retirement benefits); 5 C.F.R. § 844.103(a)
(2).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 | Tickle_Lorie_A_DC-844E-19-0403-I-1_Final_Order.pdf | 2024-02-09 | LORIE A. TICKLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0403-I-1, February 9, 2024 | DC-844E-19-0403-I-1 | NP |
2,384 | https://www.mspb.gov/decisions/nonprecedential/Barros_Adolfo_AT-0752-19-0681-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADOLFO BARROS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-0752-19-0681-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adolfo Barros , Miami, Florida, pro se.
Katherine A. Goetzl and Kristan Siegwart , 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 as untimely filed without good cause shown for the
delay. On petition for review, the appellant does not challenge the dismissal on
timeliness grounds. Rather, he appears to argue the merits of his removal,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
including an argument that he raised below concerning an altered performance
appraisal on which the deciding official relied in sustaining the removal action.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is not material to the timeliness of his appeal. Therefore, it provides
no basis to disturb the initial decision. Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (holding that the Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Barros_Adolfo_AT-0752-19-0681-I-1_Final_Order.pdf | 2024-02-09 | ADOLFO BARROS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-0752-19-0681-I-1, February 9, 2024 | AT-0752-19-0681-I-1 | NP |
2,385 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Athena_N_PH-315H-23-0063-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATHENA N. COLEMAN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-315H-23-0063-I-1
DATE: February 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Athena N. Coleman , Charlotte, North Carolina, pro se.
Navid Mehrjou , 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
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant again argues the merits of her termination.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 CLARIFY that the
appellant failed to make a nonfrivolous allegation that she was denied the proper
procedures in connection with her termination for pre-appointment reasons, we
AFFIRM the initial decision.
The administrative judge found that the agency complied with the
procedures in 5 C.F.R. § 315.805. Initial Appeal File (IAF), Tab 8, Initial
Decision (ID) at 3. An appellant has a regulatory right to appeal to the Board if
she was removed for pre -appointment reasons and was not afforded the
procedural requirements of 5 C.F.R. § 315.805. See Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 14 (2013); 5 C.F.R. § 315.806(a), (c). To be entitled
to a hearing on the jurisdictional issue, the appellant must present sufficient
assertions of fact to raise a nonfrivolous allegation that the agency terminated her
during her probationary period for pre-appointment reasons and without
complying with the procedural requirements of 5 C.F.R. § 315.805. Milanak v.
Department of Transportation , 90 M.S.P.R. 219, ¶¶ 9-10 (2001); Jordan v.
Department of the Air Force , 61 M.S.P.R. 388, 394 (1994).
In determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling her to a hearing, an administrative judge may consider an
agency’s documentary submissions. Ferdon v. U.S. Postal Service , 60 M.S.P.R.
325, 330 (1994). But, to the extent that the agency’s evidence constitutes mere2
factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh and resolve conflicting
assertions of the parties and the agency’s evidence may not be dispositive. Id.
To the extent that the administrative judge suggested that he was finding on the
merits that the agency complied with the appropriate procedures in terminating
the appellant’s appointment, we clarify the nature of that finding.
The appellant nonfrivolously alleged that the agency terminated her for
pre-appointment reasons. Specifically, she alleged that the agency removed her
based on a statement she made on a preemployment form. IAF, Tab 1 at 5. But
the appellant did not nonfrivolously allege that her termination was not effected
in accordance with the procedures set forth at 5 C.F.R. § 315.805, i.e., notice, a
right to answer, and a final decision. As the administrative judge found, the
appellant merely challenged the merits of her removal; she never alleged that the
agency failed to follow the procedures in 5 C.F.R. § 315.805. ID at 3. The
removal decision, which the appellant included with her appeal, indicates that she
received notice of the proposed removal and answered in writing and provided
evidence. IAF, Tab 1 at 7; see Jordan, 61 M.S.P.R. at 394 (finding an appellant
was entitled to a jurisdictional hearing after she nonfrivolously alleged the agency
gave her insufficient time to answer the charges against her and an untimely
notice of decision). She has not disputed that fact below or on review.
Therefore, although the appellant requested a hearing, she is not entitled to one.
IAF, Tab 1 at 2. Accordingly, we clarify the initial decision to find that the
appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 C.F.R. § 315.806(c).3
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, 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 | Coleman_Athena_N_PH-315H-23-0063-I-1__Final_Order.pdf | 2024-02-09 | ATHENA N. COLEMAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-315H-23-0063-I-1, February 9, 2024 | PH-315H-23-0063-I-1 | NP |
2,386 | https://www.mspb.gov/decisions/nonprecedential/Dottino_ClaraDC-0752-16-0869-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARA DOTTINO,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-16-0869-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Mulhern , Esquire, Chestertown, Maryland, for the appellant.
Noah Dottino , Arlington, Virginia, for the appellant.
Robert M. Mirkov , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s affirmative
defense of whistleblower reprisal, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was employed as a Lead Management and Program Analyst,
GS-14, in the Criminal Investigation Division of the Internal Revenue Service.
Initial Appeal File (IAF), Tab 6 at 13. On December 8, 2015, the agency
proposed the appellant’s removal. IAF, Tab 7 at 101-04. The charges against the
appellant as set forth in the notice of proposed adverse action were as follows:
Reason 1: You committed an unauthorized access of personnel
records.
Specification 1 : In approximately August 2014, you accessed a
folder on the Warrants and Forfeiture network drive which
contained subfolders of confidential personnel records of other
employees. You admitted you viewed the folders of [5 other
named agency employees]. You did not receive permission from
the employees to access their folders and had no official business
reason to browse the folders. You even attempted to access the
folders after the permissions were changed and the shortcut to the
folder no longer worked.
Specification 2 : During an interview with Treasury Inspector
General for Tax Administration (TIGTA) on July 27, 2015, your
laptop was viewed by TIGTA and found to have a subfolder titled2
“07302014,” it contained confidential personnel folders of
approximately sixteen employees which had been copied directly
from an unsecure folder on the Warrants and Forfeiture network
drive. In approximately August 2014, you copied confidential
personnel files of other employees directly from the Warrants and
Forfeiture network drive knowing that the confidential personnel
records should not have been viewed and copied.
Reason 2: You were less than candid.
Specification 1 : During an interview with TIGTA on July 27,
2015, you were questioned regarding unauthorized accesses of
confidential personnel records that were in a folder on the
Warrants and Forfeiture network drive. You confirmed the folder
contained subfolders of personnel files of certain personnel within
the Warrants and Forfeiture section which were not restricted
from view by other personnel. You stated you made copies of
your own folder and created a shortcut to the EPF folder on your
desktop. When TIGTA reviewed your laptop, they found a folder
titled “Desktop” on your desktop and then a subfolder titled
“07302014.” The Subfolder 07302014 contained personnel files
of sixteen employees which were similar to the Warrants and
Forfeiture folder on the server. You had advised the two TIGTA
agents that you only copied your own folder and created a
shortcut to the EPF on your desktop; however, personnel records
of sixteen employees were found in a folder on your desktop.
Specification 2 : During an interview with TIGTA on July 27,
2015, you told TIGTA agents that you found receipts belonging to
your current supervisor, []. The receipts belonging to [your
current supervisor] were not saved in your personnel folder.
Id. at 101-02. The proposing official informed the appellant that he had reviewed
the agency’s Manager’s Guide to Penalty Determinations (Penalty Guide) and had
determined that Reason 1 constituted an Unauthorized Access/Browsing/Updates
of Records offense and that Reason 2 constituted a False or Misleading
Statements Offense. Id. at 102. The proposing official also cited several factors
that he considered aggravating, including the appellant’s past disciplinary record
consisting of a written counseling, a 7-day suspension, and a 14-day suspension.
Id.3
The appellant responded to the notice of proposed removal both orally and
in writing. IAF, Tab 6 at 19-45, 48-124; IAF, Tab 7 at 4-100. By letter dated
August 11, 2016, the agency informed the appellant of its decision to sustain both
charges and to remove her effective August 12, 2016. IAF, Tab 6 at 14-17. The
appellant timely filed this appeal challenging her removal on September 12, 2016.
IAF, Tab 1. She alleged that the agency violated her substantive and procedural
due process rights, as well as her free speech rights under the First Amendment.
She also alleged that the agency’s action was not in accordance with law and
inconsistent with merit systems principles. The appellant further alleged, inter
alia, that the agency committed harmful procedural error, that several agency
officials involved in her removal had “unclean hands,” and that the agency had
retaliated against her for whistleblowing. Id. She initially requested a hearing,
id., but she later withdrew that request and instead requested a decision on the
written record, IAF, Tab 44.
After giving the parties the opportunity to submit evidence and argument
prior to the close of the record, IAF, Tab 47, the administrative judge issued an
initial decision sustaining each of the agency’s specifications and charges and
affirming the appellant’s removal, IAF, Tab 59, Initial Decision (ID). The
administrative judge found that the appellant failed to prove any of her
affirmative defenses and that the penalty of removal was within the range of
reasonableness. ID at 14-33.
In her timely filed petition for review, the appellant argues that the
administrative judge erred in construing the charges and that the agency failed to
prove the charges as properly construed. Petition for Review (PFR) File, Tab 1
at 12-17. She also argues that the administrative judge erred in rejecting her due
process, harmful procedural error, and whistleblower reprisal claims. Id.
at 20-31. Finally, the appellant argues that the penalty was excessive. Id.
at 32-35. The agency has responded in opposition to the petition for review, PFR
File, Tab 6, and the appellant has filed a reply, PFR File, Tab 7.4
The administrative judge properly construed and adjudicated the charges.
An employee must receive advance written notice stating the specific
reasons for the proposed adverse action. 5 U.S.C. § 7513(b)(1); Smith v.
Department of the Interior , 112 M.S.P.R. 173, ¶ 5 (2009). To satisfy this notice
requirement, an agency is required to state the specific reasons for a proposed
adverse action in sufficient detail to allow the employee to make an informed
reply. Smith, 112 M.S.P.R. 173, ¶ 5. Because the appellant must have full notice
of the charges against him, the Board cannot consider or sustain charges or
specifications that are not included in the proposal notice. Id. However, the
Board will not technically construe the wording or specifications of a charge. Id.
In resolving the issue of how a charge should be construed, the Board examines
the structure and language of the proposal notice and the decision notice, as well
as the accompanying specifications and circumstances. George v. Department of
the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008).
An agency is required to prove only the essence of its charge and need not prove
each factual specification supporting the charge. Hicks v. Department of the
Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table).
Although the agency’s first charge appears under the label “Unauthorized
Access of Personnel Records,” the appellant argues that the Board should
construe the charge as actually alleging unauthorized access of confidential
personnel records and find that the agency failed to prove that charge because the
records in question were not confidential. PFR File, Tab 1 at 14-15. Upon
examination of the structure and language of the proposal and decision, we agree
with the administrative judge that the agency proved both specifications of the
unauthorized access of personnel records charge. In light of the label the agency
chose to apply to the first charge, we find that the confidential nature of the
records viewed by the appellant is not part of the essence of the charge; rather,
the essence of the charge is that the appellant accessed personnel records she was5
not authorized to access. See Cole v. Department of the Air Force , 120 M.S.P.R.
640, ¶ 8 (2014) (citing the agency’s chosen label as a factor in determining the
essence of the charge). However, even if the appellant is correct that the essence
of the charge includes the agency’s assertion that the records in question were
confidential, we have no trouble concluding that records containing personally
identifiable information (PII) qualify as confidential personnel records. We also
reject the appellant’s argument, PFR File, Tab 1 at 17-19, that she was authorized
to access her coworkers’ files because she was a whistleblower or because those
files were mistakenly placed in an unsecured location. Neither the failure of
another employee to properly secure the documents nor the fact that the appellant
made a protected disclosure overrides the appellant’s obligation to protect PII.
Thus, we find no error in the administrative judge’s construction of the first
charge or her finding that the agency proved that charge.
As to the second charge, the appellant argues that the charge should be
construed as false or misleading statements, rather than lack of candor. PFR File,
Tab 1 at 13-14. In the proposal notice, the agency labeled the second charge,
“You were less than candid.” IAF, Tab 7 at 101. Nevertheless, the appellant
argues on petition for review that the second charge should actually be construed
as false or misleading statements because both the proposal notice and the
decision notice refer to the second charge as “a False or Misleading Statements
offense.” PFR File, Tab 1 at 13-14; IAF, Tab 6 at 14, Tab 7 at 102. However,
those statements were clearly part of the agency’s penalty determination, not in
reference to the charge itself. In both the proposal notice and the decision notice,
the agency referred to false or misleading statements in its discussion of the
Penalty Guide. IAF, Tab 6 at 14, Tab 7 at 102. Thus, the agency was informing
the appellant that, for purposes of its penalty determination, the offense listed in
the Penalty Guide most comparable to the second charge was False or Misleading
Statements. This was an entirely appropriate consideration in the penalty
determination and does not affect the charge itself. See Ware v. Department of6
Veterans Affairs , 76 M.S.P.R. 427, 435 (1997) (in determining an appropriate
penalty, the agency properly considered “the offense closest to the charged
misconduct” in its table of penalties). We therefore find that the administrative
judge properly construed the second charge as lack of candor.2
Lack of candor is a “broad[] and . . . flexible concept whose contours and
elements depend on the particular context and conduct involved.” Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330, ¶ 16 (2016) (quoting Ludlum v.
Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002)). A lack of candor
charge may be based on “a failure to disclose something that, in the
circumstances, should have been disclosed in order to make a given statement
accurate and complete.” Id. (quoting same). Lack of candor requires proof that
the employee knowingly gave incorrect or incomplete information. Id., ¶ 17.
Applying those legal standards, we agree with the administrative judge that the
agency proved both specifications of lack of candor.
The appellant failed to establish a due process violation or harmful procedural
error.
Fundamental due process requires that notice of the charges must be
sufficiently detailed to provide a meaningful opportunity to be heard. Mason v.
Department of the Navy , 70 M.S.P.R. 584, 586-87 (1996). In analyzing a claim
of denial of due process, the Board will examine, among other things, whether
lack of specificity in the notice affected the appellant detrimentally or caused him
any surprise. Id. at 587. When an appellant comes forward and refutes a charge
made against her, the Board cannot find that she was not given notice of the
charge. Yinat v. Department of the Army , 101 M.S.P.R. 328, ¶ 15 (2005). Here,
although the appellant argues on review that the notice of proposed removal
“lacked specificity,” PFR File, Tab 1 at 20, we find that the notice was
2 Because we find that the administrative judge properly construed the second charge as
lack of candor, we need not address whether the agency proved a charge of false or
misleading statements.7
sufficiently detailed to allow the appellant to meaningfully respond, as evidenced
by her lengthy and substantive written and oral replies to the proposal.
The appellant also argues that the decision letter lacked the specificity and
resolution of factual disputes required by the agency’s internal rules. PFR File,
Tab 1 at 24-25. In addition to the protections afforded by the Constitution, public
employees are also entitled to “whatever other procedural protections are afforded
them by statute, regulation or agency procedure.” Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1378 (Fed. Cir. 1999). Under 5 U.S.C.
§ 7701(c)(2)(A), the Board will not sustain an agency decision if the appellant
“shows harmful error in the application of the agency’s procedures in arriving at
such decision.” The Board may not assume that an employee has been harmed by
a procedural error in the adverse action process; rather, the appellant bears the
burden of proving harm. Ward v. U.S. Postal Service , 634 F.3d 1274, 1281 -82
(Fed. Cir. 2011). A procedural error is harmful 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. Doe v.
Department of Justice , 118 M.S.P.R. 434, ¶ 31 (2012); 5 C.F.R. § 1201.56(c)(1).
We agree with the administrative judge that the appellant failed to establish either
that the agency violated its own procedures or that any such error was likely to
have caused the agency to reach a different conclusion. Accordingly, we find that
the appellant failed to prove either a due process violation or harmful procedural
error.
The appellant failed to prove whistleblower reprisal.
In an adverse action appeal such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 21 (2014). In such
instances, once the agency proves its adverse action case by a preponderant
evidence, the appellant must show by preponderant evidence that she engaged in
whistleblowing activity by making a protected disclosure under 5 U.S.C.8
§ 2302(b)(8) and that the disclosure was a contributing factor in the agency’s
personnel action. Id.
If an appellant meets this burden, the burden shifts to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the protected disclosure. Shannon, 121 M.S.P.R. 221,
¶ 22. In determining whether an agency has met this burden, the Board will
consider the following factors: the strength of the agency’s evidence in support
of its action; the existence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather, the Board will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. Phillips v. Department
of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). The U.S. Court of Appeals for
the Federal Circuit has added that “[e]vidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the
pertinent evidence in the record, and despite the evidence that fairly distracts
from the conclusion.” Whitmore v. Department of Labor , 680 F.3d 1353, 1368
(Fed. Cir. 2012); Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 27 (2015).
The administrative judge found that the appellant proved that she made a
protected disclosure when she disclosed to TIGTA that the agency had failed to
secure documents containing employees’ PII, ID at 15, and that her disclosure
was a contributing factor in the agency’s decision to remove her, ID at 15-17.
The administrative judge further found, however, that the agency proved by clear
and convincing evidence that it would have taken the same action in the absence
of the appellant’s disclosure. ID at 17-19.9
On review, the appellant challenges the administrative judge’s analysis of
the Carr factors. As to the strength of the agency’s evidence in support of its
action, the appellant restates the arguments she raised in connection with the
charges. PFR File, Tab 1 at 27-28. For the reasons set forth in our discussion of
the charges above, we do not find those arguments convincing and we agree with
the administrative judge that the agency had strong evidence in support of its
action.
As to the second Carr factor, the appellant argues that the administrative
judge improperly minimized the retaliatory motive of the officials involved in her
removal. PFR File, Tab 1 at 28-29. The administrative judge found that neither
the TIGTA agents whose investigation eventually led to the appellant’s removal
nor the deciding official who removed the appellant had any particular motive to
retaliate against her. ID at 18-19. The appellant argues that the administrative
judge’s analysis of the second Carr factor is inconsistent with our reviewing
court’s decision in Whitmore. PFR File, Tab 1 at 28-31. We agree that the
administrative judge’s view of the second Carr factor was overly restrictive, and
therefore we modify the initial decision to consider that factor more fully.
In Whitmore, the Federal Circuit cautioned the Board against taking an
unduly dismissive and restrictive view of retaliatory motive, holding that “[t]hose
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated 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.” 680 F.3d at 1370. Thus, we find
that there was at least some motive to retaliate against the appellant, even if the
deciding official was not personally implicated in the appellant’s protected
disclosure.
When applying the second Carr factor, the Board will consider any motive
to retaliate on the part of the agency official who ordered the action, as well as
any motive to retaliate on the part of other agency officials who influenced the10
decision. McCarthy v. International Boundary and Water Commission ,
116 M.S.P.R. 594, ¶ 62 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). The
appellant argues that the proposing official had a strong retaliatory motive that
should be imputed to the deciding official. PFR File, Tab 1 at 29. Although the
proposing official was in the appellant’s chain of command, there is nothing in
the record indicating that the proposing official was directly implicated in the
appellant’s protected disclosure or suffered any adverse consequences as a result
of her disclosure to TIGTA. Thus, there is nothing in the record to support the
appellant’s assertion that the proposing official had a particularly strong motive
to retaliate against her that could be imputed to the deciding official.
Accordingly, although we find that there was at least some motive to retaliate
against the appellant for her disclosure, we do not find that such motive was
particularly strong.
As to the third Carr factor, the appellant correctly notes that the
administrative judge failed to address that factor in the initial decision. PFR File,
Tab 1 at 31. We therefore do so here. The agency offered no evidence of its
treatment of similarly situated non-whistleblowers. “[T]he absence of evidence
relating to Carr factor three can effectively remove that factor from the analysis.”
Whitmore, 680 F.3d at 1374. Thus, the third factor does not weigh heavily in our
determination of whether the agency met its burden by clear and convincing
evidence.3
Upon consideration of the record as a whole, including evidence that
detracts from the conclusion that the agency met its burden, we are left with the
firm belief that the agency would have taken the same action in the absence of the
appellant’s protected disclosure. We base this determination on the agency’s
3 We are mindful of the Federal Circuit’s warning in Whitmore that the failure to
produce all reasonably pertinent evidence relating to the third Carr factor “may be at
the agency’s peril.” 680 F.3d at 1374; see Miller v. Department of Justice , 842 F.3d
1252, 1262 (Fed. Cir. 2016) (finding that in the absence of evidence, the third Carr
factor “adds little to the overall analysis in this case, but if anything, tends to cut
slightly against the Government”).11
strong evidence in support of its action and the absence of a particularly strong
motive to retaliate. Accordingly, we agree with the administrative judge that the
appellant failed to prove her affirmative defense of whistleblower reprisal.
The penalty of removal was within the limits of reasonableness.
The appellant raises a few specific challenges to the administrative judge’s
penalty analysis. PFR File, Tab 1 at 32-34. When, as here, 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 of the relevant factors and
exercised management discretion within tolerable limits of reasonableness. Adam
v. U.S. Postal Service , 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (Fed.
Cir. 2005); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In
doing so, 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. Adam, 96 M.S.P.R. 492, ¶ 5.
Thus, the Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that it clearly exceeded the bounds of
reasonableness in determining the penalty. Id. We agree with the administrative
judge that the agency properly considered the relevant factors in reaching its
penalty determination and that the penalty of removal is within the limits of
reasonableness for the appellant’s misconduct. ID at 30-33. For the reasons set
forth below, we find that the appellant’s arguments on petition for review do not
provide a basis for disturbing the agency’s penalty determination.
First, the appellant reiterates her argument as to the construction of the
second charge. PFR File, Tab 1 at 32. We have already rejected that argument in
connection with the charges, and we need not address it further here.
The appellant also argues that the penalty she received was “not consistent”
because no other employee who accessed the same files she did was removed.
PFR File, Tab 1 at 33. It is well settled that when an appellant alleges that an12
agency treated her disparately as compared to other employees who committed
the same or similar offenses, she has the initial burden of showing that those
employees are proper comparators. See Archuleta v. Department of the Air
Force, 16 M.S.P.R. 404, 407 (1983) (holding that, to establish disparate penalties,
the appellant must show that the charges and the circumstances surrounding the
charged behavior are substantially similar). Here, the appellant’s bare assertion
that other employees accessed the same files she did fails to satisfy her initial
burden as to her disparate penalties claim. First, she has not established that
those other employees’ access was unauthorized. Additionally, she does not even
allege that any of those other employees also lacked candor. Thus, she failed to
show that those employees committed the same or similar offenses. See Bencomo
v. Department of Homeland Security , 115 M.S.P.R. 621, ¶¶ 2, 20 (2011) (holding
that the appellant failed to establish a disparate penalties claim where the alleged
comparators engaged in conduct similar to only some of the charges for which the
appellant was removed), aff’d, 468 F. App’x 986 (Fed. Cir. 2012). Accordingly,
the appellant’s disparate penalties claim does not provide a basis for mitigating
the penalty.4
Finally, the appellant argues that the penalty of removal was inconsistent
with the Penalty Guide because the upper range of penalties in the Penalty Guide
for a first offense of Unauthorized Access/Browsing/Updates of Records offense
is a 5-day suspension. PFR File, Tab 1 at 34. An agency’s table of penalties is
only one factor to be considered in assessing the reasonableness of the penalty.
See Phillips v. Department of the Interior , 95 M.S.P.R. 21, ¶ 17 (2003), aff’d,
131 F. App’x 709 (Fed. Cir. 2005) . Moreover, the Board and the Federal Circuit
have found that an agency’s table of penalties is merely a guide and is not
mandatory unless the agency has a specific statement making the table mandatory
and binding rather than advisory. Id.; see Farrell v. Department of the Interior ,
4 In Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 14-18, we overruled and clarified
the standards for disparate penalties claims. However, our analysis of the disparate
penalties claim in this case is not affected by Singh.13
314 F.3d 584, 590-92 (Fed. Cir. 2002). Here, the Penalty Guide contains a
statement that it “should serve as a guide ONLY, not a rigid standard.” PFR File,
Tab 6 at 24 (emphasis in original).5 Additionally, the appellant’s argument based
on the Penalty Guide fails to acknowledge that she was charged with two
specifications of unauthorized access as well as two specifications of lack of
candor. It also fails to account for the fact that she had previously been
suspended twice for misconduct that included, on both occasions, making a false
statement. IAF, Tab 8 at 41, 61-62. The Penalty Guide provides for removal as
the penalty for a third False or Misleading Statements offense. PFR File, Tab 6
at 34. Therefore, the appellant’s argument regarding the Penalty Guide does not
justify mitigating the penalty.
The appellant’s remaining arguments do not warrant a different outcome.
We have considered the appellant’s remaining arguments on appeal,
including but not limited to her arguments regarding unclean hands and violation
of her First Amendment rights. We agree with the administrative judge that those
arguments do not provide a basis for reversing the appellant’s removal.
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
5 A copy of the Penalty Guide was in the record below. IAF, Tab 49 at 322-51.
However, some of the text of the Guide was cut off. The agency has submitted a more
legible copy of the same document on petition for review. PFR File, Tab 6 at 23-52.
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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation15
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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
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.18 | Dottino_ClaraDC-0752-16-0869-I-1_Final_Order.pdf | 2024-02-08 | CLARA DOTTINO v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-16-0869-I-1, February 8, 2024 | DC-0752-16-0869-I-1 | NP |
2,387 | https://www.mspb.gov/decisions/nonprecedential/DePalma_Francis_F_PH-0752-18-0198-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCIS F. DEPALMA, JR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-18-0198-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francis F. DePalma, Jr. , Middlebury, Connecticut, pro se.
Mark E. Stopa , East Hartford, Connecticut, 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 untimely filed without good cause shown for the delay in
filing. On petition for review, the appellant argues the merits of his appeal but
does not address the timeliness issue. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | DePalma_Francis_F_PH-0752-18-0198-I-1__Final_Order.pdf | 2024-02-08 | null | PH-0752-18-0198-I-1 | NP |
2,388 | https://www.mspb.gov/decisions/nonprecedential/Barrett_Kathryn_E_AT-0752-18-0744-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHRYN ELLEN BARRETT,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-18-0744-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
athryn Ellen Barrett , Ridgeland, Mississippi, pro se.
Jill McCann and Clairanne Wise , 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
affirmed the agency’s decision to indefinitely suspend her pending a final
decision on her eligibility for access to National Security Information. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On review, the appellant does not challenge any of the administrative
judge’s findings or his decision to affirm the agency action. Petition for Review
(PFR) File, Tab 1. Based on our review of the record, we discern no error with
the administrative judge’s decision to affirm the agency’s action.
In her petition for review, the appellant asserts for the first time that the
agency’s August 6, 2018 decision to indefinitely suspend her, which became
effective on August 15, 2018, is contrary to the agency’s August 8, 2018
memorandum, which allegedly stated that she “may remain on administrative
leave not to exceed September 24, 2018.” PFR File, Tab 1 at 4; Initial Appeal
File (IAF), Tab 5 at 13, 16-17. She also asserts for the first time on review that
her leave and earnings statement for the pay period from August 5, 2018, to
August 18, 2018, reflects that she was suspended without pay. PFR File, Tab 1
at 4. Notably, the record does not contain the agency’s August 8, 2018
memorandum or her leave and earnings statement for this pay period, nor does
she produce such documentation on review.
The Board will not generally 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.2
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant
has not persuaded us that the agency’s August 8, 2018 memorandum or her leave
and earnings statement constitutes new evidence that was unavailable before the
record closed despite her due diligence. Therefore, we need not consider these
arguments on review.
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 | Barrett_Kathryn_E_AT-0752-18-0744-I-1_Final_Order.pdf | 2024-02-08 | KATHRYN ELLEN BARRETT v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-18-0744-I-1, February 8, 2024 | AT-0752-18-0744-I-1 | NP |
2,389 | https://www.mspb.gov/decisions/nonprecedential/Lennon_Sandra_I_PH-0752-16-0478-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA I. LENNON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-16-0478-I-2
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert F. Stone , Esquire, South Deerfield, Massachusetts, for the appellant.
Joshua R. Carver , Augusta, Maine, 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 for her refusal to take a drug test, required by the agency,
following reports of reasonable suspicion of drug use. On petition for review, the
appellant recites 5 C.F.R. § 1201.115 but she does not otherwise challenge the
administrative judge’s findings that the agency proved the charge, nexus, 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).
reasonableness of 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 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 | Lennon_Sandra_I_PH-0752-16-0478-I-2__Final_Order.pdf | 2024-02-08 | SANDRA I. LENNON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-16-0478-I-2, February 8, 2024 | PH-0752-16-0478-I-2 | NP |
2,390 | https://www.mspb.gov/decisions/nonprecedential/Kelly_Timothy_P_DA-0752-18-0150-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY P. KELLY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-18-0150-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy P. Kelly , Metairie, Louisiana, pro se.
LaTasha C. Clark and Justin Wade Sweat , Jackson, Mississippi, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. For the
reasons discussed below, we VACATE the administrative judge’s finding that the
appellant’s behavior cited in the agency’s admonishment and proposed
admonishment warranted some form of discipline, and we AFFIRM the initial
decision in all other respects. Except as expressly indicated in this Final Order,
the initial decision of the administrative judge is the Board’s final decision.
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet his burden of
raising a nonfrivolous allegation2 of the Board’s jurisdiction over his constructive
removal appeal. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 2 n.2,
5-9; see Edwards v. Department of the Air Force , 120 M.S.P.R. 307, ¶ 6 (2013)
(explaining that an appellant generally is entitled to a jurisdictional hearing if he
raises a nonfrivolous allegation of Board jurisdiction over the appeal); 5 C.F.R.
§ 1201.56(b)(2)(i)(A); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶¶ 7-8, 11 (2013) (observing that an employee may establish Board jurisdiction
over an alleged involuntary retirement as a constructive removal by proving,
among other things, that he lacked a meaningful choice in the matter and it was
the agency’s wrongful actions that deprived him of that choice).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
However, we vacate the administrative judge’s finding that the appellant’s
alleged behavior described in the March 20, 2015 admonishment and
December 16, 2015 proposed admonishment warranted some form of discipline.
ID at 7-8; IAF, Tab 5 at 29-30, 48-51. In Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994), the Board held that, in determining whether an
appellant has made a nonfrivolous allegation of jurisdiction, an administrative
judge may not weigh evidence and resolve conflicting assertions of the parties,
and the agency’s evidence may not be dispositive. Here, the appellant alleged
that the agency’s admonishments were “specious.” IAF, Tab 1 at 14. Therefore,
we find that the administrative judge improperly relied on the agency’s evidence
in making a finding on the merits of the admonishments.
In his petition for review, the appellant makes the following arguments:
the agency failed to issue a proposal before issuing the March 20, 2015
admonishment, which itself was retaliation for claiming harassment by the
Human Resources Specialist; the agency’s inaction in failing to make a decision
on the December 16, 2015 proposed admonishment created a hostile work
environment; the agency tricked him when it wrongfully failed to reassign
Personal Identity Verification (PIV) duties from his Records and Information
Management Specialist position to the newly hired Support Services Specialist
position; the agency should not be allowed to redefine positions and to assign
duties at its whim because such actions render the Office of Personnel
Management and position descriptions useless; when he joined the agency, he
specifically chose his position because it did not require Information Technology
duties; he tried for several months to have the agency reassign his PIV duties to
the Support Services Specialist position; based on the agency’s history of not
adhering to common business practices and issuing retaliatory admonishments, he
could no longer trust the agency; and the agency subjected him to a hostile work
environment after he complained of its fraudulent practices. Petition for Review
(PFR) File, Tab 1 at 3-4. 3
We find that the appellant’s arguments on review have been thoroughly
addressed in the initial decision; thus, we discern no basis for review.
Specifically, we agree with the administrative judge’s finding that, even assuming
that all of the appellant’s assertions regarding the agency’s alleged wrongful
actions are true and correct, his retirement was not involuntary. ID at 9; see
Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000) (stating that
dissatisfaction with work assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions are generally not so intolerable as to
compel a reasonable person to resign). The fact that the appellant faced a
proposed admonishment does not rebut the presumed voluntariness of his ultimate
choice to retire. See Baldwin v. Department of Veterans Affairs , 109 M.S.P.R.
392, ¶ 12 (2008) (observing that the fact that an employee is faced with the
unpleasant choice of either resigning or opposing a potential adverse action does
not rebut the presumed voluntariness of his ultimate choice of resignation).
Further, instead of retiring, the appellant had the option of contesting the alleged
discrimination and harassment through the equal employment opportunity process
and appealing the March 20, 2015 admonishment through the grievance
procedure. IAF, Tab 5 at 29-30; see Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant had the option to stand
and fight the alleged discrimination, harassment, and retaliation rather than
resign). Moreover, the appellant admits on review that he “was not tricked into
retirement.” PFR File, Tab 1 at 3.
Accordingly, we affirm the dismissal of the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 court of appeals of7
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.9 | Kelly_Timothy_P_DA-0752-18-0150-I-1__Final_Order.pdf | 2024-02-08 | TIMOTHY P. KELLY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-18-0150-I-1, February 8, 2024 | DA-0752-18-0150-I-1 | NP |
2,391 | https://www.mspb.gov/decisions/nonprecedential/Guerra_AngelicaDA-0752-17-0013-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELICA GUERRA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-17-0013-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos E. Paredes , New Caney, Texas, for the appellant.
Jennifer Cook , Esquire, 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
affirmed her removal for her inability to perform the essential duties of her
position. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the correct legal standard to the agency’s charge of inability to perform the
essential duties of her position, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a Customs and Border Patrol Officer
(CBPO) with the U.S. Customs and Border Protection Office of Field Operations,
Houston Field Operations, Port of Houston Airport. Initial Appeal File (IAF),
Tab 4 at 22. A CBPO is a law enforcement position, and the incumbent is
therefore required to carry a Government-issued firearm. Id. at 85. Because the
position requires an officer to carry a firearm, it also has medical requirements
which state, in part:
The officer must exercise sound judgment, maintain mental alertness
at all times, and function under dynamic and stressful conditions in
which there are time constraints, concerns for national security, and
threats of terrorism.…2
The standard requires that the person be medically and physically
capable of performing the essential functions and duties of the
position safely and efficiently without aggravating existing health
problems or endangering the health and safety of the individual,
others, or national security. The individual must be free of any
organic, structural or fundamental impairment(s) or existing health
problem(s) that would be aggravated in response to the work
environment and/or would affect safe and efficient job performance.
IAF, Tab 5 at 4.
In December 2014, the appellant self-reported to the agency that she
threatened to kill her son’s dog, later explaining that she meant that she would
have the dog euthanized, but that her son would not understand that term. IAF,
Tab 13 at 42. After a telephone call from her son to the appellant’s ex -husband,
law enforcement was dispatched to the appellant’s home where she was detained
for a short period before being released. Id. Two months later, in February 2015,
the appellant called her first-line supervisor and told him that she needed to talk
and that she was located in the breakroom. IAF, Tab 4 at 75. When the
supervisor arrived at the breakroom, the appellant “was laying on the couch with
her hair in disarray,” and when the supervisor directed her to “sit up and fix
herself,” the appellant responded that she had texted her ex-husband that she
wished he would die, or words to that effect. Id. The supervisor then escorted
the appellant to the supervisory CBPO’s office, who was there with the Watch
Commander, and upon arriving, the appellant started crying and stated that “she
was dying” because her son now lives with her ex-husband. Id.
Initially, the agency referred the appellant to the Customs and Border
Patrol (CBP) Employee Assistance Program (EAP), IAF, Tab 13 at 58, but on
March 11, 2015, the Port Director issued the appellant a letter directing her to
undergo a fitness -for-duty (FFD) examination to determine her capacity to
perform her duties as a CBPO, IAF, Tab 4 at 87-89. In the letter, the Port
Director informed the appellant of the basis for the exam, explaining that her
indications to her supervisors concerning her struggles with, among other things,3
depression, major financial issues, and heavy drinking, raised questions in his
mind regarding her continued capacity to perform the full range of her duties in a
safe and effective manner. Id. at 87.
The appellant underwent the FFD exam, but the results were inconclusive
as to whether there was a medical explanation for her behavior and she was
directed to undergo a mental health examination with Dr. L.N., a licensed
forensic psychiatrist. IAF, Tab 5 at 30-31. After the appellant’s psychiatric
independent medical examination (IME), Dr. L.N. concluded that the appellant
could not safely, efficiently, or reliably perform all of the duties of her position
without restrictions, and he stated that she should not carry a Government-issued
firearm because of her current alcohol use disorder and depressive and anxious
symptoms. IAF, Tab 6 at 21. After Dr. L.N. produced his report, the appellant
sought an independent evaluation with her own physician, Dr. K.S., who
concluded that the appellant was not suffering from an acute mental illness at that
time that would impair her ability to work in law enforcement and that she was
not an imminent danger to herself or others. IAF, Tab 5 at 47. Several months
later, the agency and the appellant engaged in an interactive reasonable
accommodation process, and the agency made a tentative reassignment offer,
which the appellant declined. Id. at 49-54; IAF, Tab 6 at 4.
On July 26, 2016, the agency proposed the appellant’s removal based on
the charge of “Inability to Perform the Essential Duties” of a CBPO. IAF, Tab 4
at 31-36. The proposal notice relied on the initial report from Dr. L.N. and an
addendum report issued 3 months later. Id. at 32; IAF, Tab 6 at 10-23, 74-76.
Based upon Dr. L.N.’s conclusion that the appellant should not carry a
Government-issued firearm and the fact that the appellant’s job description
required that she carry one, the agency asserted in the proposal notice that the
appellant was not fit for duty. IAF, Tab 4 at 31-36. On September 14, 2016, the
deciding official issued a final decision upholding the proposed removal. Id.
at 23-30. In the decision notice, he found that the appellant was unable to4
perform the duties of a CBPO and that, due to her medical conditions, her
inability to perform the essential functions of a CBPO, and her declining the
reassignment offer, there was no adequate remedy available other than removing
her from Federal service. Id. at 28.
The appellant appealed the agency’s decision to the Board, claiming that
the agency failed to establish that she was disqualified from performing the duties
of a CBPO and that the agency committed harmful errors when it forced her to
undergo an FFD examination and an IME evaluation. IAF, Tab 1 at 5. She also
claimed that the agency discriminated against her based upon a perceived
disability. IAF, Tab 8 at 4-6.
After holding a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. IAF, Tab 18, Initial Decision (ID). He found
that, considering the evidence as a whole, the agency proved that the appellant
suffered from several medical conditions that precluded her from being able to
carry a firearm, which is an essential duty of a CBPO. ID at 10. Thus, the
administrative judge found that the appellant’s medical condition was
disqualifying. Id. He further found that the recurrence of the appellant’s medical
condition could not be ruled out and that her former position’s duties are such
that a recurrence would pose a reasonable probability of substantial harm. ID
at 11. The administrative judge also found that the appellant failed to prove any
of her affirmative defenses, including her disability discrimination claim2 and that
2 The appellant does not argue on review that the administrative judge erred in finding
that she failed to prove her disability discrimination defense. PFR File, Tab 1 at 6-11;
ID at 12-15. We note that, in analyzing that claim, the administrative judge used the
analytical framework set forth in Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 51 (2015) and Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 21 (2013).
ID at 12-15. Following the issuance of the initial decision, the Board issued Pridgen v.
Office of Management and Budget , 2022 MSPB 31, which overruled parts of Savage and
Southerland, and clarified the proper analytical framework to be applied to affirmative
defenses of discrimination and retaliation. Specifically, the Board explained that for
status-based disability discrimination claims, an appellant is entitled to some relief, i.e.,
injunctive relief, if she satisfies the motivating factor standard, but in order to obtain
full relief, she must show that disability discrimination was a but-for cause of the5
the selected penalty of removal was reasonable and promoted the efficiency of the
service. ID at 12-19.
The appellant has filed a petition for review arguing that the agency failed
to establish that her removal promotes the efficiency of the service, and that it
violated her due process and Fourth Amendment rights.3 Petition for Review
(PFR) File, Tab 1 at 6-11. The agency has filed a response to the appellant’s
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In the initial decision, the administrative judge stated that, to prove its
charge of physical inability to perform, the agency was required to show the
following: (1) the appellant’s disabling condition itself was disqualifying; (2) its
recurrence could not be ruled out; and (3) the duties of the appellant’s position
were such that a recurrence would pose a reasonable probability of substantial
harm.4 ID at 4. Following the issuance of the initial decision, however, the
Board determined that this standard applies only when an employee who occupies
a position with medical standards is removed based solely on medical history,
personnel action. Pridgen, 2022 MSPB 31, ¶¶ 40, 42. However, because we agree with
the administrative judge that the appellant provided no evidence, absent conclusory
assertions, that her removal was motivated by disability discrimination, ID at 15, there
is no basis to reverse the administrative judge’s findings. 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).
3 The appellant does not appear to challenge the administrative judge’s finding
regarding her harmful procedural error defense. PFR File, Tab 1 at 6-11; ID at 15-18.
We have reviewed the record, and we find no reason to disturb that finding here.
4 Although not cited by the administrative judge, this is a recitation of the standard set
forth in 5 C.F.R. § 339.206. Subsequent to the appellant’s removal, the Office of
Personnel Management amended 5 C.F.R. § 339.206 as to the degree of risk required.
Medical Qualification Determinations, 82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18,
2017) (Final Rule). However, given our findings herein, this amendment is not material
to the outcome of this appeal; thus, we need not address whether the regulatory changes
apply retroactively. See Haas v. Department of Homeland Security , 2022 MSPB 36,
¶ 11 n.2. 6
i.e., when the only basis for concluding that the employee was medically unable
to perform the core duties of her position was the fact that her medical records
reflected that, at some time in the past, she was classified as having, was
examined for, or was treated for the medical condition or impairment in question.
Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 10-15. The Board
explained that in cases, as here, involving a current medical condition, the agency
must prove either a nexus between the employee’s medical condition and
observed deficiencies in her performance or conduct, or a high probability, given
the nature of the work involved, that her condition may result in injury to herself
or others. Id., ¶ 15. The Board has otherwise described this standard as requiring
that the agency establish that the appellant’s medical condition prevents her from
being able to safely and efficiently perform the core duties of her position. Id.
Here, although the administrative judge both enumerated and applied the
standard set forth in 5 C.F.R. § 339.206, remand is unnecessary because the
record is fully developed on the relevant issues. See id., ¶ 20. As discussed
below, while we modify the initial decision to apply the correct legal standard, we
find that, because the agency established that the appellant’s current medical
condition prevented her from being able to safely and efficiently perform the core
duties of her position, the agency proved its charge, and therefore, we ultimately
affirm the removal action.
The agency established a nexus between the appellant’s current medical condition
and observed deficiencies in her performance or conduct, or a high probability,
given the nature of the work involved, that her condition may result in injury to
herself or others.
In finding that the agency established that the appellant was unable to
perform her essential duties, the administrative judge thoroughly considered the
medical evidence presented by both the agency and the appellant. First, he
reviewed the testimony from, among others, Dr. L.N., who, he noted, was Board
certified in forensic and addictive psychiatry. ID at 5-8. Dr. L.N. testified that
the appellant suffered from alcohol dependency, an adjustment disorder7
(anxiety/depression), and a sleep disorder. Hearing Compact Disc (HCD)
(testimony of Dr. L.N.). He also testified that the appellant’s alcohol use
rendered her incapable of working any hours at her current position because
alcohol use disorder causes increased impulsivity and impaired executive
cognitive function. Id. The administrative judge found that Dr. L.N. credibly
testified that sound judgment and the ability to react quickly to complex and
difficult situations are required skills for an individual to safely carry a firearm.
ID at 6. Based on this assessment, Dr. L.N. testified that the appellant could not
safely carry a Government -issued firearm. HCD (testimony of Dr. L.N.).
Dr. L.N. also believed that the appellant could rehabilitate herself through an
intensive treatment program, but that there is no evidence that she sought such
treatment. ID at 11. He further testified that, even if the appellant participated in
an intensive treatment program, relapse was still very likely.5 ID at 11.
The administrative judge also considered the appellant’s medical evidence,
which included an evaluation performed by Dr. K.S., who did not testify at the
hearing. ID at 6. The administrative judge discussed Dr. K.S.’s evaluation of the
appellant, which concluded that the appellant suffered from alcohol abuse that
was in remission. ID at 6; IAF, Tab 5 at 47. Dr. K.S. also concluded that the
appellant had met the criteria for major depressive disorder and alcohol abuse in
the past, but she no longer did. Id. She recommended that the appellant see a
5 The appellant argues on review that the agency failed to meet its burden because
Dr. L.N.’s findings conclude that a drinking problem and serious substance abuse are
“likely,” which is a level of probability discouraged by the agency policy, which
appears to require a firmer diagnosis. PFR File, Tab 1 at 9; IAF, Tab 13 at 104. First,
we clarify that the comments were made by a licensed clinical psychologist, R.F.,
Ph.D., rather than by Dr. L.N., after he administered a specific examination on the
appellant. IAF, Tab 6 at 78-79. Second, even if we assume, arguendo, that the agency
erred in the application of its own policy, we would find that such an error does not
require reversing the initial decision. See Powers v. Department of the Treasury ,
86 M.S.P.R. 256, ¶ 10 (2000) (stating that for a procedural error to warrant reversing an
agency action, the appellant must establish that the agency committed a procedural error
that likely had a harmful effect on the outcome of the case before the agency). Even in
the absence of this evidence, the outcome of the appeal would be the same.8
therapist and that she follow up with a psychiatrist as needed. Id. Dr. K.S.
ultimately concluded that the appellant was not suffering from an acute mental
illness that would impair her ability to work in law enforcement or with the
agency and that she was not an imminent danger to herself or others. Id.
The administrative judge determined that Dr. L.N.’s conclusions were more
probative than the medical evidence provided by the appellant. ID at 7. We
discern no basis to disturb this finding.6 In assessing the probative weight of
medical opinions, the Board considers whether the opinion was based on a
medical examination and whether it provided a reasoned explanation for its
findings as distinct from mere conclusory assertions; the qualifications of the
expert rendering the opinion; and the extent and duration of the expert’s
familiarity with the appellant’s treatment. Adams v. U.S. Postal Service ,
108 M.S.P.R. 250, ¶ 13 (2008), aff’d, 309 F. App’x 413 (Fed. Cir. 2009). The
administrative judge reasoned that Dr. L.N.’s conclusions were based on a
comprehensive evaluation that included several self -reported inventories, a
3-hour interview with the appellant, the medical results from the appellant’s FFD
examination, and the position description for a CBPO. ID at 7. In considering
Dr. K.S.’s evaluation, the administrative judge noted that it was based upon a less
thorough analysis, as there was no indication that she took a history of the
appellant’s addiction and did not document whether the appellant had
implemented successful treatment methods and coping strategies. ID at 6-7, 9-10.
The administrative judge also stated that there was no indication that Dr. K.S. had
any expertise in evaluating law enforcement officers or whether she reviewed the
position description for a CBPO before reaching her conclusion. ID at 9.
6 The appellant argues on review that there is no evidence that she received anything
less than satisfactory performance ratings, suggesting that she was able to perform the
essential duties of a CBPO contrary to the agency’s charge. PFR File, Tab 1 at 6. We
find the appellant’s performance ratings to be irrelevant because her performance was
not germane to the charge brought by the agency; rather, the charge focused on her
inability to carry a firearm, which is one of her job’s requirements. IAF, Tab 4
at 31-36, 85. 9
Therefore, based on the foregoing, we find that the agency proved that the
appellant was unable to safely and efficiently perform the core duties of her
position. The record reflects that at the time of her removal, the appellant was
suffering from alcohol dependency, and exhibiting anxious and depressive
symptoms, which impaired her judgment, reflexes, and concentration, thus
preventing her from safely carrying a firearm. IAF, Tab 6 at 21-22. Furthermore,
the appellant’s medical conditions resulted in observed deficiencies in her
conduct, as she threatened to kill her son’s dog, told her former husband that she
wished he would die, and had a disturbing episode while on duty, which included
lying on the breakroom couch with her hair in disarray, crying, and stating to
upper management that she was dying. IAF, Tab 4 at 75, Tab 13 at 42. While we
sympathize with the appellant’s situation, such behavior is nonetheless
concerning for an employee that is entrusted with the safety of the public, and in
this role, is required to carry a Government-issued firearm. Thus, considering the
evidence in the record, we find that the agency established a nexus between the
appellant’s medical conditions and a deficiency in her conduct, or at least, a high
probability, given the nature of the work involved, that her condition may result
in injury to herself or others. Accordingly, we find that the agency proved its
charge of inability to perform the essential duties of her position.
The agency did not violate the appellant’s due process rights.
On review, the appellant also argues that the agency violated her due
process rights because it relied on aggravating factors to impose the penalty of
removal that were not included in the proposal notice. PFR File, Tab 1 at 6-7.
See Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶¶ 5-13 (2011) (stating
that when an agency intends to rely on aggravating factors as the basis for
imposing a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the agency’s deciding official). She also argues that ex parte
communications occurred among agency officials and that those communications10
violated her due process rights. Id. at 7-8. See Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1376-77 (2014) (holding that ex parte
communications that introduce new and material information to the deciding
official will violate the due process guarantee of notice).
The appellant did not argue below that the agency had violated her right to
due process. Moreover, the defense was not included among the issues the
administrative judge identified for adjudication in her Order and Summary of
Telephonic Prehearing Conference, and the appellant did not file an objection to
the exclusion of the due process claim from that list of issues, despite being
afforded an opportunity to do so. IAF, Tab 14. 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). Here, the appellant contends that, during cross examination by agency
counsel at the hearing she was asked about aggravating factors that the deciding
official had considered in his penalty determination, without prior notice that
these factors would be considered. PFR File, Tab 1 at 6-7. These included her
leave usage, the self-reported incident in which she stated that she wished her
husband would die, an incident in which she threatened to kill the family dog, and
the loss of her credentials. Id. at 7.
Even if the appellant was unaware of the basis for this argument until she
testified at hearing, and if we found it was appropriate to consider the argument
for the first time on review, we would find that it is meritless. The record shows
that the above factors were not considered in the decision to remove the
appellant, but rather in the decision to require her to undergo an FFD
examination. IAF, Tab 4 at 23, 73-76. Furthermore, the traditional analysis for
mitigating the penalty under Douglas v. Veterans Administration, 5 M.S.P.R. 280
(1981), does not apply in this instance because a removal for inability to perform
the essential duties of a CBPO is considered nondisciplinary and such factors do11
not apply in that penalty determination. See Chandler v. Department of the
Treasury, 120 M.S.P.R. 163, ¶ 31 (2013) (noting that the Douglas factors do not
apply to a furlough, consistent with the Board’s practice of not applying them to
nondisciplinary matters) . Thus, we find that the agency did not violate the
appellant’s due process rights in this regard.
The appellant’s argument that the agency engaged in ex parte
communications when the Port Director spoke with her supervisors about her
situation and she was not notified of these conversations in the proposal notice is
based on a statement by the Port Director in the FFD order. PFR File, Tab 1 at 7
(citing IAF, Tab 4 at 87). This is a new argument that the appellant failed to raise
below, based on evidence that was readily available to her. However, even if we
considered the argument, as explained below, we find it to be without merit.
The due process protections against ex parte communication relate only to
the deciding official and whether he engaged in ex parte communications that
introduce new and material information that is 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. Stone, 179 F.3d
at 1376-77. Here, the appellant has not alleged that the deciding official obtained
any new and material information; rather, she claims that the Port Director, who
was the proposing official and who does not appear to have been involved in
issuing the final decision, had ex parte communications with her supervisors prior
to the issuance of the proposal notice. PFR File, Tab 7-8. Thus, we find that the
agency did not engage in ex parte communications in violation of the appellant’s
due process rights.
The agency did not violate the appellant’s Fourth Amendment rights.
The appellant argues that, when the agency ordered her to undergo an FFD
examination, it also improperly obtained blood and urine samples not authorized
by FFD examination protocol, thereby violating her Fourth Amendment right to
privacy. PFR File, Tab 1 at 11. Again, this is a new argument that the appellant12
failed to raise below, and again, even if we considered it, we would find this
argument to be unpersuasive. The U.S. Supreme Court has addressed the
question of the constitutionally protected privacy of a Customs officer and has
stated that Customs officers who are required to carry firearms in the line of duty
have a diminished expectation of privacy over intrusions occasioned by a urine
test. National Treasury Employees Union v. Von Raab , 489 U.S. 656, 672 (1989).
The Court goes on to explain that:
[b]ecause successful performance of their duties depends uniquely on
their judgment and dexterity, these employees cannot reasonably
expect to keep from [an agency] personal information that bears
directly on their fitness…. While reasonable tests designed to elicit
this information doubtless infringe some privacy expectations, we do
not believe these expectations outweigh the Government’s
compelling interests in safety and in the integrity of our borders.
Id.
Further, even without the U.S. Supreme Court’s discussion of a Customs
officer’s expectation of privacy, the agency’s Fitness for Duty Standard
Operating Procedures manual states that when there is a question about an
employee’s mental health, the employee is required to undergo a medical exam
prior to a psychiatric exam, and that such medical exams will include blood tests.
IAF, Tab 13 at 113. Moreover, the appellant has failed explain how or why any
of the agency’s actions in collecting her blood and urine samples violate 5 C.F.R.
§ 339.301, which grants agencies the authority to conduct medical and psychiatric
examinations. Consequently, we find the appellant’s argument to be meritless.
We have considered the appellant’s other arguments on review, but we
conclude that a different outcome is not warranted. Accordingly, we affirm the
initial decision.13
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any15
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s16
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Guerra_AngelicaDA-0752-17-0013-I-1 Final Order.pdf | 2024-02-08 | ANGELICA GUERRA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-17-0013-I-1, February 8, 2024 | DA-0752-17-0013-I-1 | NP |
2,392 | https://www.mspb.gov/decisions/nonprecedential/Sparman_Richard_R_SF-0752-18-0794-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD R. SPARMAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0794-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard R. Sparman , Antioch, California, pro se.
Christine Yen , Esquire, 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
dismissed his removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute 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
supplement the administrative judge’s analysis regarding whether the appellant
established that his untimely filing resulted from his medical conditions, we
AFFIRM the initial decision.
To establish that an untimely filing resulted from illness, the party must
(1) identify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the illness during that time
period; and (3) explain how the illness prevented him from timely filing his
appeal or a request for an extension of time. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). The party need not establish that he was
“incapacitated” during this time period; rather, he must show that his ability to
file with the Board was “affected” or “impaired” by illness. Vandagriff v.
Department of the Army , 106 M.S.P.R. 446, ¶ 8 (2007). The administrative judge
correctly advised the appellant in the order on timeliness of how he could
establish that his untimely filing resulted from illness. Initial Appeal File (IAF),
Tab 6 at 3. While the administrative judge acknowledged in the initial decision
that the appellant referenced his medical conditions, she did not apply the factors
the Board considers under Lacy. We therefore modify the initial decision to
address these factors.
The appellant alleged below that he became “horribly sick” from a medical
condition beginning in February 2018, discovered that he had another medical2
condition on April 30, 2018, and had a medical procedure done on May 23, 2018.
IAF, Tab 1 at 3. He further asserted that he was rushed to the emergency room
after passing out in July 2018. Id. In support of his claims, he has submitted the
following evidence: (1) the results of a medical test that he had done on May 10,
2018; (2) a bill for medical services rendered on May 23, 2018; (3) a doctor’s
note placing him off of work from July 17 to 18, 2018; and (4) a medical bill for
services rendered on July 30, 2018. IAF, Tab 7 at 7-10. The other medical
evidence submitted by the appellant concerns medical visits or restrictions
outside of the time period between when he constructively received the decision
notice on May 5, 2018, and when he filed his Board appeal on September 12,
2018. Id. at 2-6, 11.
Other than to say that he was in “much pain” and “unable to perform” his
duties, the appellant failed to explain how his medical conditions prevented him
from timely filing his appeal or requesting an extension of time. IAF, Tab 1 at 1.
Nor has he specified the beginning and end dates of when he was impaired by
illness from filing his Board appeal. Id. Accordingly, we find that the appellant
has failed to establish that his ability to timely file his Board appeal was impaired
by his medical conditions. See Hawkins v. Office of Personnel Management ,
96 M.S.P.R. 147, ¶¶ 11-12 (2004) (finding that the appellant failed to establish
that her untimely filing resulted from illness where she failed to explain how her
medical condition affected her ability to timely file an appeal).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
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
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Sparman_Richard_R_SF-0752-18-0794-I-1 Final Order.pdf | 2024-02-08 | RICHARD R. SPARMAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0794-I-1, February 8, 2024 | SF-0752-18-0794-I-1 | NP |
2,393 | https://www.mspb.gov/decisions/nonprecedential/Rosales_Jose_A_SF-0752-17-0615-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE A. ROSALES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-17-0615-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
T
homas E. Tierney , Esquire, Norwalk, Connecticut, for the appellant.
Andrew V. Sperry and Shama Modi Mehta , 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 his removal. On petition for review, the appellant challenges the
administrative judge’s findings on the merits of the charges and alleges that she
was biased. 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 | Rosales_Jose_A_SF-0752-17-0615-I-1_Final_Order.pdf | 2024-02-08 | JOSE A. ROSALES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-17-0615-I-1, February 8, 2024 | SF-0752-17-0615-I-1 | NP |
2,394 | https://www.mspb.gov/decisions/nonprecedential/Perkins_DebraNY-0353-18-0147-C-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBRA PERKINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0353-18-0147-C-2
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ray Bermudez , New York, New York, for the appellant.
David S. Friedman , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial compliance
decision, which denied her petition for enforcement. On petition for review, the
appellant argues that the written settlement agreement is different from what she
agreed to off the record. Generally, we grant petitions such as 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.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 To the extent the appellant is seeking to challenge the validity of the settlement
agreement, such a claim cannot be raised in a compliance proceeding; it must be alleged
in a petition for review of the initial decision that dismissed the appeal pursuant to the
settlement. Wofford v. Department of Justice , 115 M.S.P.R. 367, ¶ 9 (2010). If the
appellant wants to challenge the validity of the settlement agreement, she must file a
petition for review consistent with the Board’s regulations. See 5 C.F.R. § 1201.114.
We make no findings regarding the timeliness of such a petition for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Perkins_DebraNY-0353-18-0147-C-2 Final Order.pdf | 2024-02-08 | DEBRA PERKINS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0353-18-0147-C-2, February 8, 2024 | NY-0353-18-0147-C-2 | NP |
2,395 | https://www.mspb.gov/decisions/nonprecedential/Oertel_Theresa_E_DC-844E-19-0460-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA ELLIOTT OERTEL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0460-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Theresa Elliott Oertel , Durham, North Carolina, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management that
denied her application for disability retirement under the Federal Employees’
Retirement System. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant asserts generally that the record
evidence, including the statements from her treatment providers and former
supervisor, establishes that her disability prevented her from continuing Federal
service. Petition for Review (PFR) File, Tab 1 at 4. The administrative judge
properly considered both the objective medical opinions and the appellant’s
subjective accounts of her mental limitations in finding that she failed to establish
that her mental health conditions caused her documented performance
deficiencies or rendered her unable to provide useful and efficient service. Initial
Appeal File (IAF), Tab 20, Initial Decision (ID) at 6-7, 10-15; see Henderson v.
Office of Personnel Management , 117 M.S.P.R. 313, ¶¶ 19-20 (2012). Having
considered the appellant’s arguments and reviewed the record evidence, we agree
with the administrative judge that the appellant failed to show that her
performance issues were caused by her medical conditions or that these
conditions rendered her unable to provide useful and efficient service. ID
at 10-15; PFR File, Tab 1 at 4; see Henderson v. Office of Personnel
Management, 109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria that an2
applicant must meet in order to qualify for disability retirement benefits);
5 C.F.R. § 844.103(a)(2).
The appellant maintains that her mental health condition prevented her
from adequately representing herself in the present appeal. PFR File, Tab 1 at 4.
She also resubmits her correspondence to the administrative judge stating that she
had failed to attend the post-hearing status conference due to the alleged
exacerbation of her mental health symptoms.2 Id. at 5; IAF, Tab 19 at 4.
Although she asserts that her mental health condition prevented her from proving,
“as an attorney would,” that she “stopped work only because [she was] disabled,”
the record is devoid of any evidence suggesting that she has been unable to
prosecute her appeal pro se. PFR File, Tab 1 at 4; see French v. Office of
Personnel Management , 37 M.S.P.R. 496, 497, 499 (1988) (setting forth the
relevant criteria for applying the procedures by which the Board seeks to arrange
pro bono representation for incompetent appellants in cases concerning
entitlement to retirement benefits).
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 To the extent that the appellant argues on review that the administrative judge erred in
not rescheduling the conference, she has not shown that any such error prejudiced her
substantive rights. PFR File, Tab 1 at 5; see Karapinka v. Department of Energy ,
6 M.S.P.R. 124, 127 (1981) (explaining 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). Specifically, the administrative judge convened the status
conference in order for the agency to provide the appellant with information explaining
the comparative monthly annuities to which she would be entitled under disability
retirement or early retirement. IAF, Tab 18 at 1-2. Prior to the scheduled post -hearing
conference, the agency complied with these instructions and submitted into the record
comparative financial data regarding the appellant’s retirement. IAF, Tab 15 at 4,
Tab 16 at 4.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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.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 of6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Oertel_Theresa_E_DC-844E-19-0460-I-1 Final Order.pdf | 2024-02-08 | THERESA ELLIOTT OERTEL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0460-I-1, February 8, 2024 | DC-844E-19-0460-I-1 | NP |
2,396 | https://www.mspb.gov/decisions/nonprecedential/Paez_Jose_M_SF-0752-19-0568-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE M. PAEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-19-0568-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark A. Myers , Esquire, Ponte Vedra, Florida, for the appellant.
Amy L. Dell , 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
sustained his removal pursuant to 5 U.S.C. chapter 75 based on the following
charges: (1) failure to follow a supervisory order; (2) conduct unbecoming an
agency employee; (3) misuse of position; and (4) careless misstatements. On
petition for review, the appellant alleges the following: (1) 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 incorrectly sustained the charge of failure to follow a supervisory order;
(2) the administrative judge incorrectly sustained the second specification of the
charge of conduct unbecoming an agency employee; (3) the administrative judge
incorrectly sustained the charge of misuse of position; and (4) his removal was
unreasonable under the circumstances and the Board should mitigate the penalty
to a 60-day suspension. Petition for Review File, Tab 1 at 4-8. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
We discern no basis to disturb the administrative judge’s reasoned
conclusions that the agency proved all four charges by preponderant evidence2
and that the agency-imposed penalty of removal was within the tolerable limits of
reasonableness. Initial Appeal File (IAF), Tab 22, Initial Decision at 5-19, 21-25;
see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
The appellant does not challenge the administrative judge’s finding that the
agency proved the first specification of the charge of conduct unbecoming an
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).2
agency employee, i.e., that he made a series of expletive -laced statements to his
union representative that he wanted to “beat,” “hurt,” and “kill” his Watch
Commander. IAF, Tab 4 at 61. Thus, the appellant does not contest that the
administrative judge properly sustained two of the agency’s four charges,
i.e., conduct unbecoming an agency employee and careless misstatements.
Id. at 61-62; see Burroughs v. Department of the Army , 918 F.2d 170, 172
(Fed. Cir. 1990) (explaining that, when more than one specification supports a
single charge, proof of one or more, but not all, of the supporting specifications is
sufficient to sustain the charge). We find that the appellant’s removal was
warranted on the basis of these two uncontested charges alone. See Berkner v.
Department of Commerce , 116 M.S.P.R. 277, ¶¶ 2, 13 (2011) (finding no basis to
disturb the initial decision sustaining the appellant’s removal for inappropriate
statements when the appellant stated to her union representative that she would
kill herself and return to haunt and/or harm other agency employees).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Paez_Jose_M_SF-0752-19-0568-I-1__Final_Order.pdf | 2024-02-08 | JOSE M. PAEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0568-I-1, February 8, 2024 | SF-0752-19-0568-I-1 | NP |
2,397 | https://www.mspb.gov/decisions/nonprecedential/Lindemann_Antoan_C_SF-0891-18-0772-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTOAN C. LINDEMANN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0891-18-0772-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antoan C. Lindemann , Palm Desert, California, 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
dismissed his appeal of the Office of Personnel Management’s termination of his
enrollment in the Federal Employee Health Benefits Program for lack of
jurisdiction. On petition for review, the appellant does not disagree with the
findings in the initial decision but instead appears to address the merits of his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
entitlement to a survivor annuity.2 Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 The appellant submits on review a number of exhibits that were either already
submitted in the record below, Initial Appeal File, Tab 7 at 9-10, 20, 35; Tab 11 at 10,
dated before the issuance of the initial decision with no showing that they were, despite
the appellant's due diligence, not available when the record closed, or not material to
the jurisdictional issue in this appeal, Petition for Review File, Tab 1 at 3-15. These
documents, therefore, do not provide a basis for granting the petition for review. See
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (evidence that is
already a part of the record is not new); 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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Lindemann_Antoan_C_SF-0891-18-0772-I-1__Final_Order.pdf | 2024-02-08 | ANTOAN C. LINDEMANN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0891-18-0772-I-1, February 8, 2024 | SF-0891-18-0772-I-1 | NP |
2,398 | https://www.mspb.gov/decisions/nonprecedential/Lindemann_Antoan_C_SF-0831-18-0771-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTOAN C. LINDEMANN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-18-0771-I-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antoan C. Lindemann , Palm Desert, California, 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
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
addresses the merits of his entitlement to a survivor annuity. He also submits
evidence in support of that entitlement. 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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.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 | Lindemann_Antoan_C_SF-0831-18-0771-I-1 Final Order.pdf | 2024-02-08 | ANTOAN C. LINDEMANN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-18-0771-I-1, February 8, 2024 | SF-0831-18-0771-I-1 | NP |
2,399 | https://www.mspb.gov/decisions/nonprecedential/Sumrall_Jason_M_DA-0752-99-0240-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON M. SUMRALL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-99-0240-C-1
DATE: February 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason M. Sumrall , Moore, Oklahoma, pro se.
Michele S. McNaughton , Tinker Air Force Base, 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 compliance initial
decision, which dismissed his petition for enforcement of a settlement agreement
for lack of jurisdiction based on the doctrine of collateral estoppel. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the compliance initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts his argument that collateral
estoppel does not preclude this compliance matter because the issue of his mental
condition at the time the parties entered into the settlement agreement was not
previously litigated. Compliance Petition for Review (CPFR) File, Tab 1 at 1,
Tab 5 at 1; Compliance File (CF), Tab 11 at 1. The appellant further reasserts his
claim that the agency failed to offer him a reasonable accommodation.
CPFR File, Tab 1 at 1, Tab 5 at 1; CF, Tab 10 at 1-2. In addition, the appellant
has resubmitted documentation that already is a part of the record before the
administrative judge. CPFR File, Tab 1 at 2-4, Tab 5 at 2-3; CF, Tab 1 at 3, 5, 7.
For the reasons described in the compliance initial decision, we find that
the administrative judge properly applied collateral estoppel to the issues of the
validity of the settlement agreement and the Board’s enforcement authority.
CF, Tab 12, Compliance Initial Decision (CID) at 5-6; see Kroeger v. U.S. Postal
Service, 865 F.2d 235, 239 (Fed. Cir. 1988). In particular, in
Sumrall v. Department of the Air Force , 130 F. App’x 478, 479-80 (Fed. Cir.
2005), the U.S. Court of Appeals for the Federal Circuit considered the
appellant’s argument about his mental state in affirming the Board’s
determination that the parties had entered into a valid settlement agreement, and2
the court found that, “[b]ecause the settlement agreement had not been entered
into the record, the Board correctly determined that it did not have jurisdiction
over its enforcement.” CID at 6. Moreover, the appellant’s claim of disability
discrimination is not an independent source of Board jurisdiction. 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).
Accordingly, we affirm the compliance initial decision. See, e.g.,
Moss v. Department of the Air Force , 82 M.S.P.R. 309, ¶¶ 1, 12-13
(dismissing the appellant’s appeal for lack of jurisdiction based on the doctrine of
collateral estoppel), aff’d, 230 F.3d 1372 (Fed. Cir. 1999) (Table).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sumrall_Jason_M_DA-0752-99-0240-C-1__Final_Order.pdf | 2024-02-08 | JASON M. SUMRALL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-99-0240-C-1, February 8, 2024 | DA-0752-99-0240-C-1 | NP |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.